#MeToo Turns One

The #MeToo movement has driven not only an increase in litigation, but also meaningful changes in the workplace.

A little over a year ago on October 5, 2017, The New York Times ran its story on Harvey Weinstein that sparked the #MeToo movement. Dozens of high-profile individuals have since fallen from grace as accusations of harassment — some recent, some dated — came to light. Many sensed that this seismic shift was the precursor to a tsunami of harassment litigation.

Were they right? What does the available data tell us?

As of the first quarter of this year, the Equal Employment Opportunity Commission (the federal agency tasked with enforcing Title VII, the primary federal anti-harassment statute) reported that it had not seen a surge in the number of sexual harassment complaints despite the start of the #MeToo movement. This came as a surprise to many.

I think, however, that what some didn’t take into consideration is that individuals have up to 180 days to file a charge with the EEOC. That time period is extended to 300 days if the person is in a location that also has a state or local law prohibiting harassment.

In my experience, many (if not most) plaintiff-side employment lawyers first issue demand letters and try to informally resolve a claim or case before filing a charge with the EEOC, and so charges are frequently filed close to the 180- or 300-day cutoffs. I think it’s also relevant that many people who faced workplace harassment in the past may not have filed charges because their harassment claims were time barred. (That may not have been true for other common law claims like assault, but those claims would not involve the EEOC.)

Despite the lack of new harassment charges being filed with the EEOC, anecdotal evidence suggested around the close of the first quarter of 2018 that more demand letters relating to sexual harassment had been issued in the first part of the year. Victoria Lipnic, the Chair of the EEOC, said in March of this year that she had received word that insurance carriers were seeing a spike in such demand letters. This suggested that a wave of new harassment EEOC charges could be coming down the pipeline.

The EEOC just released its preliminary data for its 2018 fiscal year (which runs from October to October), and there is a noticeable spike in harassment charges being filed. The number of charges filed alleging workplace sexual harassment increased by 12 percent since last October, which is approximately 7,500 total charges.

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The EEOC, which has the authority under federal law to bring lawsuits on behalf of victims of workplace discrimination and harassment, stated in its recently released data that it filed 66 harassment lawsuits in fiscal year 2018, and that of those 66 suits 41 contained allegations of sexual harassment. This was a 50 percent increase over the prior year. The EEOC also reported that it recovered about $70 million for sexual harassment victims in its 2018 fiscal year, well above the approximately $47 million it recovered in its 2017 fiscal year.

My experience and conversations with other employment lawyers has shown that employers and HR professionals are very focused on sexual harassment prevention as a result of the #MeToo movement, both through workplace training and with their handling of complaints. Allegations that might have previously been ignored as petty or slight are now being fully investigated and taken seriously. Anti-harassment policies have been dusted off and re-evaluated. Training materials have been updated and rolled out to employees and management.

Further, since October 2017, states and local jurisdictions have also begun taking steps to prevent workplace sexual harassment. For example, New York’s new state-wide anti-harassment law — which took effect this month — requires employers to have written harassment prevention policies which comply with the specific standards set forth by the state. New York’s new law also requires employers to implement anti-harassment training measures. Other jurisdictions have also enacted new workplace protections to prevent and punish workplace sexual harassment.

In the year since its beginning, the data points above indicate to me that the #MeToo movement has driven not only an increase in litigation, but also meaningful changes in the workplace. It has emboldened harassment victims to come forward. While I think that the initial surge in litigation will likely level off in the next two or three years, I think that a lot of these changes will drive changes in workplace behavior and culture that will remain in place for years to come.


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evan-gibbsEvan Gibbs is an attorney at Troutman Sanders, where he primarily litigates employment cases and handles traditional labor matters. Connect with him on LinkedIn here, or e-mail him here. (The views expressed in this column are his own.)