Thursday, April 12, 2018

Will #MeToo Impact Employment Discrimination Cases?

Image1Employment discrimination cases are vulnerable to dismissal on motions for summary judgment.  Severe sexual harassment has been routinely determined to be insufficient to warrant a jury trial, the judge determining that the claim would not survive the jury. Professor Suja Thomas has studied and written on this topic.  Prof. Thomas reports that 70% of sex discrimination employment cases are dismissed in whole or in part.  Some of the examples given by Prof. Thomas are: 

"Co-workers and a supervisor engaged in conduct toward a female employee, such as making comments about the worker’s breasts, requesting to lick whipped cream and wine off of her, and rubbing her shoulder, arms and rear end; a supervisor asked a female worker to go to hotel room and spend the night with him, asked her for a sexual favor, constantly referred to her as “Babe,” and unzipped his pants and moved the zipper up and down in front of her; a supervisor told a worker she had been voted the sleekest posterior in the office and on another occasion deliberately touched her breasts with some papers he held in his hands." 

In an editorial published last fall in the San Francisco Chronicle, Prof. Thomas and her co-author David Lopez, former general counsel for the EEOC, do a good job of explaining how this legal phenomenon happens within the federal system.  

Historical barriers are preventing women from the full experience of legal recourse.  Difficult to parse is when judges review the pleadings which stereotype is at play.  Is it that women are believed to lie?  Women should just stop complaining and deal with the harassment?  Or that the offenses are excused as "boys will be boys" and that the damaged claimed is exaggerated.

Will #MeToo encourage change?  That remains to be seen.  But it is not difficult to imagine that the movement will at least prompt some judges to pause and examine the connection between the movement and the employment cases coming before the court.

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