#MeToo and Federal Law: Will the Courts Ever Catch Up?

By on December 21, 2018

Executive Summary of an article written by
Philip R. Voluck, Kaufman Dolowich & Voluck LLP

Despite #MeToo’s global impact, the current state of American law is clearly at odds with the cultural changes #MeToo advocates. The law’s concern is much narrower. Recent federal decisions indicate a gradual broadening in the types of sexual harassment cases that courts recognize, but still hold that in order for sexual harassment to become an actionable legal claim it must be severe, pervasive and unwelcome. Courts have found that offensive incidents, including the use of vulgar language, sexual photos, and name-calling are not always pervasive enough to create a hostile work environment.

At least one federal court has explicitly referenced #MeToo as it relates to affirmative defenses to sexual harassment claims. That may help change the dynamics in relation to willingness of victims to come forward with complaints of a sexual nature. The court, in excusing an alleged victim’s failure to report, noted that it often came down to the authority the perpetrator wielded over the victim.

Despite the challenges posed by folding #MeToo into the workplace, most businesses have taken to the idea that sexual harassment can consist of conduct that may not be severe or pervasive and are modifying their personnel policies and training accordingly. Some change is afoot, as evidenced by the EEOC’s recent initiatives, and at least one reference by a federal court regarding #MeToo. Businesses are wise to maintain their training programs, while supplementing them with #MeToo principles of respect and dignity in the workplace.

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