Policies and Laws Inspired by and in Support of the Me Too Movement
While the #MeToo movement has brought much needed attention to reality of sexual harassment and assault, as well as its victims, it is also important to remember the legal victories from the past and the present.
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Sexual Assault/Harassment Policies for the Workplace
At first, federal sexual harassment law and most state laws only protected employees. Independent contractors or self-employed workers (ex. makeup artists and Uber drivers) had little legal recourse if they were to encounter harassment during or through their job. The Me Too Movement brought attention and change in this area.
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In 2018, New York expanded its sexual harassment law to cover independent contractors. In 2019, New York continued to improve protection for its domestic workers.
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In 2018, California broadened its laws to offer protection for people harassed in an expanded set of business relationships (including relationships with producers).
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According to the study, “Progress in Advancing Me Too Workplace Reforms in #20STATESBY2020”, published by the National Women’s Law Center (NWLC) on July 2019, only 15 states in the US had passed new laws to protect employees from sexual harassment and gendered discrimination at work since the 2017 #MeToo movement wave. The laws that were enacted and/or passed to:
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Ensure working people are covered by harassment protections
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Restore worker power and limit employer-imposed secrecy
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Prohibit no-rehire provisions
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Transparency about harassment claims
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Stop forced arbitration
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Remove barriers to accessing justice
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Extend statutes of limitations
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Revise the “severe or pervasive” liability standard
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Close a loophole in employer liability
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Ensure employer liability for supervisor harassment
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Redress harm to victims of harassment
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Promote prevention strategies
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Require anti-harassment training
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Require strong anti-harassment policies
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Require climate surveys
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Require notice of employee rights
The 15 states that have enacted or passed legislation of the listed laws are: Arizona, California, Connecticut, Delaware, Illinois, Louisiana, Maryland, Nevada, New Jersey, New York, Oregon, Tennessee, Vermont, Virginia, and Washington. (Source: https://nwlc-ciw49tixgw5lbab.stackpathdns.com/wp-content/uploads/2019/07/20-States-By-2020-report.pdf)
NDA Laws
Another obstacle that the Me Too movement shed light on is the use of a non-disclosure agreement as blackmail. A non-disclosure agreement is a legally binding contract that establishes a confidential relationship. By signing the agreement, the party or parties agree that any sensitive information that may be obtained will not be made available to others.
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In September 2018, California Governor Jerry Brown signed into law a bill that would ban non-disclosure provisions in settlements involving claims of sexual assault, harassment or discrimination based on sex. This California bill went into effect January 1, 2019. This new NDA law applied to both public and private employees. It expanded on an existing law which bars settlement provisions which would prevent the disclosure of felony sex offenses. It bans the use of a confidentiality clause to suppress factual information in sexual harassment, discrimination, and retaliation claims.
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In April 2018, New York endorsed a NDA law which permits confidentiality clauses only at the request of the victim. It went into effect in 2019.
Marital Rape Policies
By 1993, all 50 US states and the District of Columbia made marital rape illegal. Before this change, women were seen by the law as the property of their husbands and not as humans/equals. However, like many social changes, new obstacles followed soon after. Although all states recognize martial rape as a crime and charge the crime in a similar manner as a rape between strangers, two states have slight differences in the law for martial rape. In South Carolina, the perpetrator of spousal sexual battery (marital rape) cannot be prosecuted unless the act is reported within 30 days of the incident according to South Carolina’s Code Section 16-3-615. In some cases of martial rape, Virginia provides marital or personal counseling instead of court proceedings (Source 16).
States that take action on NDAs for sexual harassment
The ME TOO Congress Act
The ME TOO Congress Act, sponsored by Representative Jackie Speier [D-CA-14], was introduced on November 15, 2017. According to the summary listed on congress.gov, “This bill amends the Congressional Accountability Act of 1995 (CAA) to revise procedures for reporting, investigating, and resolving allegations of legislative branch employees that their rights and protections under the CAA, such as protections against sexual harassment and discrimination, have been violated”. What this means is that this legislation will significantly improve the original Congressional Accountability Act of 1995 by:
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improving the process for congressional employees to report allegations of sexual harassment
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holding lawmakers financially liable for harassment settlements
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increasing transparency around any settlements that lawmakers pay out for possible allegations
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Here are the major provisions of the final bill as passed by both chambers:
The bill eliminates the “cooling off” period, and a broader waiting period of roughly three months during which time a victim would have to undergo counseling and mediation in order to formally file a lawsuit or administrative complaint. The law removes these delays and makes counseling and mediation optional if the victim is interested in it.
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The bill requires lawmakers to be personally financially liable if they pay out settlements for harassment or retaliation. This is a major change created due to sexual harassment scandals which revealed that lawmakers could actually use taxpayer money to cover their settlements. Texas Rep. Blake Farenthold is a perfect example as it was found out that he had used $84,000 in taxpayer funds to settle a sexual harassment allegation. A House report found that approximately $300,000 in taxpayer funds had been used by 13 members to pay for settlements since 2003. The legislation would ensure that lawmakers cover these costs, and deduct money from their monetary salary if they don’t pay up the funds within 90 days after an agreement is reached. This requirement holds the higher-up legal professions accountable financially for their action and blocks them from using taxpayers money for their personal issues.
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The bill also adds protections for interns and fellows. These groups of people were not included in the 1995 version of the law and were among some of the most vulnerable staffers on the Hill as a result of this oversight. Burke has stated that the main purpose of the Me Too movement is to help people be able to find and reach sources to help them heal and advocate for legal change. With this new found protection, future and present interns and fellows can work safely. As for interns and fellows who have suffered from sexual harassment and/or assault, they can being their process of healing with help and not have to privately dealing their trauma.
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The bill requires an annual report detailing any settlements made in the House or the Senate related to harassment and retaliation. The report will name the member’s office and whether the member was involved, the type of violation, and the amount of the settlement. This once again holds the sexual harasser accountable for their unprofessional actions. It will also follow them for the rest of their career. It will be difficult to sweep their shame under the rug and pay people to not speak about it as many legal professionals have done in the past.