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Finding Balance, Forging a Legacy: Harassers’ Rights and Employer Best Practices in the Era of Metoo

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Finding Balance, Forging a Legacy: Harassers’ Rights and Employer Best Practices in the Era of Metoo University of Florida Levin College of Law UF Law Scholarship Repository UF Law Faculty Publications Faculty Scholarship 2020 Finding Balance, Forging a Legacy: Harassers’ Rights and Employer Best Practices in the Era of MeToo Rachel Arnow-Richman University of Florida Levin College of Law, [email protected] Follow this and additional works at: https://scholarship.law.ufl.edu/facultypub Part of the Labor and Employment Law Commons Recommended Citation Rachel Arnow-Richman, Finding Balance, Forging a Legacy: Harassers’ Rights and Employer Best Practices in the Era of MeToo, 54 U.S.F.L. Rev. 1 (2020) This Article is brought to you for free and open access by the Faculty Scholarship at UF Law Scholarship Repository. It has been accepted for inclusion in UF Law Faculty Publications by an authorized administrator of UF Law Scholarship Repository. For more information, please contact [email protected]. Articles Finding Balance, Forging a Legacy: Harassers’ Rights and Employer Best Practices in the Era of MeToo* By RACHEL ARNOW-RICHMAN** IT HAS BEEN TWO YEARS since news of serial sexual misconduct by Hollywood mogul Harvey Weinstein triggered the social media phe- nomenon that became MeToo.1 While new allegations continue to * The Jack Pemberton Lecture on Workplace Justice ** Chauncey Wilson Memorial Research Professor & Director, Workplace Law Program, University of Denver Sturm College of Law; B.A., Rutgers University; J.D., Harvard Law School; LL.M., Temple Law School. I am grateful to the University of San Francisco Law School, its law review, and its outstanding employment law faculty for honoring me with the opportunity to deliver the 2019 Jack Pemberton Lecture. Special thanks to Professors Jessica Clarke, Tristin Green, Maria Ontiveros, Nantiya Ruan, and Michelle Travis for their thoughts, feedback and encouragement on this project. Thank you to the students in Denver Law’s fall 2019 Labor & Employment Law Writing Seminar, where I workshopped this Article prior to publication. This publication would not have been possible without the diligent research assistance of Denver Law students and graduates Jessica Chao, Kellie Jenkins, and J. Kirk McGill. Special thanks to Kirk McGill for unearthing the complete, authenticated copy of Harvey Weinstein’s contract on which I base so much of this Article. 1. On October 5, 2017, the New York Times broke the news of multiple allegations of sexual assault and harassment levied against Mirimax founder and Weinstein Company co-chairman Harvey Weinstein, which were perpetrated over the course of decades. Jodi Kantor & Megan Twohey, Harvey Weinstein Paid Off Sexual Harassment Accusers for Decades, N.Y. TIMES (Oct. 5, 2017), https://www.nytimes.com/2017/10/05/us/harvey-weinstein- harassment-allegations.html [https://perma.cc/K6EA-BDD5]. On October 15, 2017, ac- tress Alyssa Milano triggered an outpouring of responses when she tweeted that anyone who had experienced sexual harassment or assault should reply “me too” to her tweet. Mary Pflum, A Year Ago, Alyssa Milano Started a Conversation About #MeToo. These Women Replied, NBC NEWS (Oct. 15, 2018), https://www.nbcnews.com/news/us-news/year-ago- alyssa-milano-started-conversation-about-metoo-these-women-n920246 [https://perma.cc/ 8V7C-Q6PA]. Ms. Milano credited Tarana Burke, who in 2007 used “Me Too” as the slogan for her non-profit organization that assists sexual abuse victims. Sandra E. Garcia, The Wo- man Who Created #MeToo Long Before Hashtags, N.Y. TIMES (Oct. 20, 2017), https://www.ny times.com/2017/10/20/us/me-too-movement-tarana-burke.html [https://perma.cc/ K9RU-R7W4]. 1 2 UNIVERSITY OF SAN FRANCISCO LAW REVIEW [Vol. 54 surface,2 the pace has slowed since the winter of 2018, when rapid-fire accuations against celebrities and other public figures were a near daily occurrence.3 Now it is time to shift from the conscience wran- gling that characterized the height of the movement to a more delib- erative conversation about best practices going forward. It is time to consider the legacy of MeToo. That legacy will be defined in large part by the wave of reform surrounding harassment prevention and the institutional handling of complaints. A driving force is the groundswell of state legislative ac- tion responding to MeToo, including laws mandating employer-pro- vided training,4 limiting confidential settlements,5 and broadening the definition of sexual harassment.6 But voluntary employer action is an equal, if not more critical, component. Since MeToo, companies 2. High-profile personalities implicated in the last year include musician R.J. Kelly, former CBS CEO and chairman Les Moonves, and opera star Placido Domingo. See Michael Cooper, Placido´ Domingo Leaves Los Angeles Opera Amid Sex Harassment Inquiry, N.Y. TIMES (Oct. 2, 2019), https://www.nytimes.com/2019/10/02/arts/music/placido-dom- ingo-la-opera-sexual-harassment.html?module=inline [http://perma.cc/X7US-TVV2]; Elizabeth A. Harris, R. Kelly Charged With 10 Counts of Sexual Abuse in Chicago, N.Y. TIMES (Feb. 22, 2019), https://www.nytimes.com/2019/02/22/arts/music/r-kelly-charged-in dicted.html?searchResultPosition=1 [https://perma.cc/XLP5-MNPA]; Ronan Farrow, Les Moonves and CBS Face Allegations of Sexual Misconduct, NEW YORKER (Aug. 8, 2018), https:// www.newyorker.com/magazine/2018/08/06/les-moonves-and-cbs-face-allegations-of-sexu al-misconduct [https://perma.cc/8CK7-6K2H]. 3. From November 2017 through February 2018, The New York Times catalogued seventy-one terminations and resignations related to allegations of sexual misconduct, as well as twenty-eight other instances of alleged harassers facing suspensions and other disci- plinary measures. See Sarah Almukhtar et al., After Weinstein: 71 Men Accused of Sexual Mis- conduct and Their Fall From Power, N.Y. TIMES (Feb. 8, 2018), https://www.nytimes.com/ interactive/2017/11/10/us/men-accused-sexual-misconduct-weinstein.html?mtrref=unde fined [https://perma.cc/Q8VE-RNFA]. 4. See, e.g., N.Y. LAB. LAW § 201-g(1)(a) (West, Westlaw through L.2019, Ch. 31, 50–59); ME. REV. STAT. ANN. tit. 26, § 807(3) (West, Westlaw through Ch. 79 of the 2019 First Reg. Sess. of the 129th Leg.); CAL. GOV’T CODE § 12950(a)(3) (West, Westlaw through Ch. 5 of 2019 Reg. Sess.). 5. See, e.g, H.B. 2020, 53rd Leg., 2d Reg. Sess. (Ariz. 2018); CAL. CIV. PROC. CODE § 1001 (West, Westlaw through Ch. 651 of 2019 Reg. Sess.); A.B. A626 (N.Y. 2019); WASH. REV. CODE ANN. § 49.44.210 (West, Westlaw through 2019 Reg. Sess.). In addition, Con- gress amended the tax code to bar employers from deducting payments or attorneys’ fees incurred in sexual harassment or abuse settlements that contain nondisclosure agree- ments. 26 U.S.C.A. § 162(q)(1) (2012). 6. See, e.g., CAL GOV’T CODE § 12923(b) (West, Westlaw through Ch. 524 of 2019 Reg. Sess.) (providing that a “single incident of harassing conduct is sufficient to create a triable issue regarding the existence of a hostile work environment”); N.Y. EXEC. LAW § 296(1)(h) (West, Westlaw through L.2019 Ch. 360) (effective November 18, 2019) (prohibiting an employer from subjecting any individual to harassment because of the individual’s mem- bership in a protected category “regardless of whether such harassment would be consid- ered severe or pervasive under precedent applied to harassment claims”). Issue 1] FINDING BALANCE IN THE METOO ERA 3 have sought to improve sexual harassment policies and training,7 di- aled back on the use of mandatory arbitration agreements,8 and re- newed efforts to recruit and promote women.9 Perhaps most visibly, many organizations have acted to promptly terminate or publicly dis- tance themselves from accused harassers.10 7. See Tracey Breeden, Driving Change—Expanding Our Commitment to Help End Global Sexual Assault and Gender-Based Violence, UBER (Nov. 25, 2018), https://www.uber.com/ newsroom/driving-more-change/ [https://perma.cc/BF3L-WT3Z] (detailing specialized sexual harassment training for Uber’s customer service representatives and product en- hancements focused on providing safer rides for Uber passengers); Kate Conger & Daisuke Wakabayashi, Google Overhauls Sexual Misconduct Policy After Employee Walkout, N.Y. TIMES (Nov. 8, 2018), https://www.nytimes.com/2018/11/08/technology/google-arbitration- sexual-harassment.html [ https://perma.cc/5TLS-JYZ9] (describing improvements to sex- ual harassment policies such as performance penalties for employees who fail to complete preventative training); 5-Star Promise, AM. HOTEL & LODGING ASS’N (Sept. 6, 2018), https:// www.ahla.com/sites/default/files/5Star_PR_Brand.pdf [ https://perma.cc/9HA9-U35B] (detailing safety committments adopted by hotel chains such as the Hilton, Hyatt, and Marriott International to protect employees from sexual assault and related risks); Jodi Kantor, #MeToo Called for an Overhaul: Are Workplaces Really Changing?, N.Y. TIMES (Mar. 23, 2018), https://www.nytimes.com/2018/03/23/us/sexual-harassment-workplace-re sponse.html [https://perma.cc/X4LA-VCT4] (describing increased attention to sexual harassment prevention in a variety of market sectors from service industry employers to investment agencies). 8. See e.g., Daisuke Wakabayashi, Uber Eliminates Forced Arbitration for Sexual Misconduct Claims, N.Y. TIMES (May 15, 2018), https://www.nytimes.com/2018/05/15/technology/ uber-sex-misconduct.html [https://perma.cc/JP2U-77QL]; Daisuke Wakabayashi & Jessica Silver-Greenberg, Facebook to Drop Forced Arbitration in Harassment Cases, N.Y. TIMES (Nov. 9, 2018), https://www.nytimes.com/2018/11/09/technology/facebook-arbitration-harass ment.html [https://perma.cc/4ZJJ-67QF]; Angela Morris, Why 3 BigLaw Firms Ended Use of Mandatory Arbitration Clauses, ABA J. (June 1, 2018), http://www.abajournal.com/magazine /article/biglaw_mandatory_arbitration_clauses [https://perma.cc/6S33-J4TM]. 9. At least fifty-four of the accused harassers who resigned or were ousted from high- level positions as a result of the MeToo movement have been replaced by women.
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