The #MeToo movement exposed the pervasiveness of sexual harassment in employment and made clear that legal remedies were sorely lacking. Federal and state lawmakers responded by passing laws broadening access to courts and enhancing remedies; requiring training, policies, and data collection; and modifying substantive harassment law, most commonly by rejecting the requirement that victims prove they were subject to “severe or pervasive” conduct. Although some of these reforms apply to harassment or discrimination on the basis of any protected trait, many create special rights for victims of sexual harassment. Collectively these laws establish what I term “the sexual harassment silo.”
This Article offers the first comprehensive assessment of legislative reform sparked by #MeToo, as well as the salience of the new laws in the current—much changed—political environment. In addition to providing an overview of the new laws, the Article uses the most prominent federal response to #MeToo, the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (EFAA), as a case study to explore in depth the potential (and limits) of this siloed approach. This is the first detailed analysis of caselaw interpreting EFAA. It demonstrates that courts are properly applying key features of the statute—a flexible definition of sexual harassment and a provision that specifies it applies to any “case” that includes such harassment—that broaden EFAA’s impact. By contrast, other #MeToo laws codify an outdated definition of harassment limited to unwelcome sexual advances or touching, while excluding other common forms of sexual harassment, such as insults, vulgar epithets, or sabotage of work.
Upon taking office, President Trump issued executive orders repudiating the application of sex discrimination law to discrimination based on gender identity and calling for the dismantling of diversity, equity, and inclusion initiatives. Because legislation cannot be swept aside by presidential fiat, the #MeToo laws can help safeguard protections for victims of harassment. But the popular debate over President Trump’s actions has highlighted the resentment that policies perceived as providing “special” treatment can engender. The Article concludes by suggesting that in addition to enforcing policies addressing harassment, employers should take steps to actively promote civility and respect within workplaces. Research suggests that effectively addressing bullying or offensive behavior, regardless of whether it is based on protected traits, can help reduce unlawful harassment—and it can make workplaces more welcoming for all.