#MeToo Legal Impact Remains Unclear

By: Marcia L. DePaula

Published: February 26, 2018

#MeToo Legal Impact Remains Unclear
By: KentBernhardContributor

The rise of the #MeToo movement is raising the question of whether sensitivity to sexual harassment of university employees will result in new policies and procedures similar to increased protections students received over the past decade.

University employees are covered by the same anti-gender discrimination law than also applies to students. The federal Title IX law covering students has been more rigorously followed than in the past, thanks to guidance in 2011 from the Obama administration and publicity around campus sexual assaults.

Students have been more willing to come forward with complaints of harassment or assault in recent years than in the past. With the #MeToo movement, university and other employers may see more employees come forward with complaints under the Title VII anti-discrimination law that covers them, said Marcia DePaula, an attorney at Steptoe & Johnson’s Pittsburgh office who specializes in labor and employment law and higher education.

“In some ways, the campuses have helped and forewarned what would happen with private businesses,” DePaula said in a recent interview.

In 2011, U.S. Department of Education unveiled a “Dear Colleague” letter to higher education administrators that reinforced their obligation under the Title IX law against gender discrimination on campus to treat allegations of sexual assault and harassment of students seriously. Though the letter was criticized as going too far and trampling the rights of those accused of misconduct, it was concern about sexual harassment and assault on campus that led to increased awareness of the issue, said DePaula.

“There was a steady rise,” she says of the increase in sexual harassment and assault awareness on campuses. “I think through social media, through student sharing, they began to recognize, ‘This isn’t right.’”

Betsy DeVos, President Donald Trump’s Education Secretary, issued guidance last year rolling back some of the guidelines issued by the Obama administration, and has been criticized and sued by civil rights organizations. But DePaula said regardless of the final outcome of the Title IX guidelines, it has started to change the culture on some campuses.

“Students are more willing to come forward,” she said.

Title IX applies to students and university employees, but all employees are covered under Title VII, which forbids harassment in the workplace, whether that workplace is an institution of higher learning or a company. DePaula said enforcement of and awareness of that law could increase in the wake of the #MeToo movement in a way similar to the increased awareness among students on campus following the Obama-era Title IX ruling.

How much impact #MeToo has on employees of universities and private corporations in the legal arena remains to be seen, though, DePaula said.

There’s no doubt the #MeToo movement is getting major attention. It seems like every week, a prominent woman comes forward to tell her story, or a prominent man steps down under a cloud of allegations of harassment or worse.

But it’s unclear yet how much that attention will play out in more legal action surrounding sexual harassment, she said.

“We won’t know … what the rise is until we are a few months in,” DePaula said.

She added, though, that many employers are concerned enough to take proactive action.

“We are receiving more inquiries from our clients,” DePaula said. “We see that companies are concerned about it because they want to help their employees.”

DePaula said employers, including universities and private companies alike, are reaching out to update their employee handbooks and checking with Steptoe & Johnson to see what they should include in their policies.

DePaula said her firm is also ramping up training for employers on how to handle reports of harassment, and for supervisors to recognize harassment. The emphasis, whether on campus or in the office, is that people should be made to feel comfortable coming forward with concerns and complaints.

The jury’s still out, though, on whether the #MeToo movement has reinforced that feeling of comfort in coming forward, and whether it will make for a better workplace for all employees in the long run. If the broader changes reflect the way sexual harassment and assault is reported on campuses, we should know soon enough.

“By the end of the year, we’ll know,” how #MeToo is affecting the legal landscape of workplace harassment, DePaula said.

As awareness of workplace sexual harassment rises, DePaula has three suggestions for employers:

Steptoe & Johnson is holding its annual Higher Education Seminar on May 24.Click here to request an invitation.

Steptoe & Johnson PLLC is a U.S. law firm with core strengths in energy, labor and employment, litigation and transactional law, serving clients from its 13 strategic locations across the nation. In 2013, Steptoe & Johnson celebrated 100 years of helping clients reach their goals.

Kent Bernhard is a freelance writer for The Business Journals.

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