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| Rachel Tuchman |
More than just a hashtag, #MeToo sparked a national reckoning. Since 2017, the movement has generated significant cultural and legal changes that fundamentally altered how companies respond to claims of sexual harassment.
And, the movement has produced tangible benefits for sexual harassment survivors seeking justice and accountability through our legal system. Recent trends demonstrate that the shift in public consciousness from #MeToo has translated into higher monetary awards for plaintiffs. And with the country finally turning a corner on the COVID-19 pandemic, we expect survivors' legal prospects to further improve in turn.
Publicly reported data[1] in sexual harassment cases between 2017 and 2020 show a strongly positive trend for plaintiffs. In fact, total compensation from
U.S. Equal Employment Opportunity Commission claims were at an all-time high in 2019,[2] even with a slight decrease in total claims.
Juries are also more willing to grant high punitive damages[3] in cases of persistent and severe abuse. These findings run contrary to the view of some skeptics[4] that juries would not be affected by broader cultural changes.
Unfortunately, COVID-19 has slowed this progress. Women have been disproportionately burdened[5][6] by job losses and increased caretaking demands[7] during the pandemic. But the pandemic has also made it harder for harassment survivors to pursue their claims.
Jury trials were suspended in almost every state[8] in the spring of 2020, and in many jurisdictions[9] cases still remain on pause. Bringing a harassment claim was already hard enough[10] — in addition to legal barriers, survivors face potential retraumatization, retaliation[11] and stigma. Now plaintiffs are confronting long backlogs and indefinite wait times as well.
Given the almost complete halt in civil trials, it has been harder for survivors to seek justice in front of a jury of their peers. It would be reasonable to wonder if the halt in trials might disadvantage plaintiffs in settlement negotiations, creating pressure to accept lower awards to resolve their claims speedily.
But even amid the pandemic, plaintiffs and their attorneys are aware of the potential for massive awards in jury trials, and should have enough confidence in the strength of their cases to move forward undeterred by delays. And while EEOC settlement awards[12] dropped slightly last year, they still vastly exceeded figures from prior to 2017.
With jury trials suspended, we have yet to see the full impact of the wave of reforms inspired by the #MeToo movement. Between 2017 and 2020, 19 states enacted laws[13] strengthening protections against workplace harassment.
In 2019, lawmakers in New York and California[14] passed legislation extending time frames to file harassment claims, expanding employer liability, and lowering the burden of proof on complainants. These changes took effect just a few months before COVID-19 limited court proceedings.
As trials resume, we expect there will be an increase in both cases and jury award sums for prevailing plaintiffs under these recent laws. In fact, the new definitions in New York state mirror a broader standard for discriminatory harassment under the New York City Human Rights Law, which led to a dramatic rise in claims when it was adopted in 2009.
Trials delayed do not mean justice denied. As the world begins rebuilding, workers cannot afford to return to unchecked harassment and discrimination.
The COVID-19 crisis has exacerbated gender inequality in the workforce and increased economic vulnerability to abuse and retaliation. Already, women are reporting[15] worsening sexual harassment in reopened restaurants, for example.
But the data show that the legal system is capable of holding those who abuse their power accountable. As civil trials resume, survivors can feel optimistic in pressing their claims.
Rachel Tuchman is an associate at Kaplan Hecker & Fink LLP.
Yale Law School students Megan Bowles, Isabella Forero, Margaret House, Ezra Kagan, Nina Leviten and Kataeya Wooten contributed to this article.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
[1]
https://www.eeoc.gov/statistics/charges-alleging-sex-based-harassment-charges-filed-eeoc-fy-2010-fy-2020.
[2]
https://www.fisherphillips.com/news-insights/sexual-harassment-payouts-hit-all-time-high-in-2019.html.
[3]
https://www.natlawreview.com/article/punishing-unlawful-employers-juries-say-metoo.
[4]
https://www.californialawreview.org/metoo-juror-decision-making/#clr-toc-heading-9.
[5]
https://news.bloomberglaw.com/class-action/insight-timesup-during-covid-19-private-sectors-role-in-mitigating-gender-equality-crisis.
[6]
https://www.nytimes.com/2020/11/17/business/economy/women-jobs-economy-recession.html.
[7]
https://www.nytimes.com/2020/05/20/us/women-economy-jobs-coronavirus-gender.html.
[8]
https://www.usatoday.com/story/news/nation/2020/12/08/jury-trials-stopped-some-states-backlogs-build-amid-covid-19/6491162002/.
[9]
https://www.theatlantic.com/magazine/archive/2021/05/can-justice-be-served-on-zoom/618392/.
[10]
https://abcnews.go.com/Entertainment/wireStory/times-study-report-harassment-face-retaliation-73630420.
[11]
https://www.vox.com/the-big-idea/2019/5/9/18541982/sexual-harassment-me-too-eeoc-complaints.
[12]
https://www.eeoc.gov/statistics/charges-alleging-sex-based-harassment-charges-filed-eeoc-fy-2010-fy-2020.
[13]
https://nwlc-ciw49tixgw5lbab.stackpathdns.com/wp-content/uploads/2020/09/v1_2020_nwlc2020States_Report.pdf.
[14]
https://www.americanbar.org/groups/litigation/publications/litigation-news/featured-articles/2020/new-state-laws-expand-workplace-protections-sexual-harassment-victims/.
[15]
https://www.cbsnews.com/news/sexual-harassment-restaurant-industry-70-percent/.
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