The co-worker repeatedly made sexual advances over the woman’s objections, insinuated that they should skinny-dip together, and went into her hotel room and crawled into her bed, saying she needed a “cuddle buddy.” He eventually left, but continued to knock on the door of the woman’s hotel room throughout the night. Take, for instance, a case decided in 2018, in which a female sales representative sued her employer after a business trip with a male co-worker took an unwelcome turn. When courts find for employers, they might now be foreclosing a victim’s chance at relief that a modern jury would, in fact, grant her. But judges can prevent cases from reaching a jury if they find that the employer should win as a matter of law-in other words, that no reasonable jury could find the victim to be reasonable. Theoretically, reasonableness is up to the jury, and post-#MeToo one might assume that juries would be more favorable to victims. Sexual-harassment victims continue to lose in court, and their reasonableness-or rather, lack thereof-is what stands in their way. But from evaluating the roughly two dozen cases (including Equal Employment Opportunity Commission cases) from 2017 to 2020 that took a more definite stance on what is reasonable, I found that, despite the ongoing public reckoning, courts have not moved very far from where they started three decades ago. The majority of these kinds of cases are resolved through settlements, or don’t require enough explanation of the reasonableness standard to allow for a thorough examination of #MeToo’s effect. Over the past two years, I’ve examined hostile-work-environment claims that reached federal circuit courts since #MeToo first gripped the public in October 2017 to see if federal courts’ definition of sexual harassment-of what is “reasonable”-has changed at all alongside the public’s. After all, what was “reasonable” in 1993 looks pretty different in 2021.Īlieza Durana: The sexual-harassment victims who can’t get to courtīut America’s courts are largely unmoved. One could have assumed that a revolution would soon be underway in America’s courts as well. Victims have been deemed unreasonable and lost their claims-including ones based on repeated, explicit, unwelcome sexual advances, and even incidents of sexual assault-because judges didn’t think a reasonable person would deem what had happened to those victims sexual harassment.įour years ago, the #MeToo social-media outpouring transformed the way American society talks and thinks about workplace sexual harassment. Since 1993, when the Supreme Court created the reasonable-person standard, it has been a major obstacle to relief. To win a hostile-work-environment claim, a survivor has to demonstrate that what she experienced was “severe or pervasive” enough to constitute sexual harassment-which comes down to whether a “reasonable person” besides the victim would perceive the assailant’s behavior to be harassment. Unlike a quid pro quo claim, a hostile work environment can arise from sexual harassment by anyone in the employee’s workplace. The first-quid pro quo-is generally pretty straightforward: Did a supervisor demand sexual favors as a condition of employment? But the second-a claim of a hostile work environment-has been a tougher sell in court. There are two types of sexual-harassment claims. Supreme Court first recognized the legal claim of workplace sexual harassment in 1986, and since that time, employees have been able to sue for damages under Title VII of the Civil Rights Act of 1964. Sexual-harassment cases are a relatively recent phenomenon. But as much as the court of public opinion has shifted in favor of victims of workplace sexual harassment, actual courts-where such victims should be able to seek relief for the abuse they have suffered-have not shifted nearly as much. As more and more powerful harassers face consequences for their actions in the form of resignations, firings, or broader public discrediting, many seem to believe that the #MeToo movement has fully upended the status quo. The #MeToo movement claimed another victory Tuesday when New York Governor Andrew Cuomo announced his resignation over numerous sexual-harassment allegations.
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