Litigating Harassment in the #MeToo Era

A lingering gap between the letter of the law and the mood of the culture is yielding strikingly disparate outcomes in sexual harassment cases

By Andrew Murphy and Terran Chambers 

As the stories of celebrities who popularized the #MeToo movement fade into the background, attorneys around the country continue to grapple with the movement’s effects on the broader workforce. Those effects are beginning to manifest themselves in new trends in workplace sexual harassment claims. This article highlights a few of them. 

The #MeToo movement gained significant traction in October 2017, following sexual abuse allegations against the Hollywood producer Harvey Weinstein, as well as numerous prominent figures in the entertainment industry, professional sports, and state and local governments. The attention to sexual harassment coincided with a less publicized but steady uptick in the number of sexual harassment allegations in the workplace in fiscal year 2018. A report from the Equal Employment Opportunity Commission (EEOC) showed a big jump in workplace sexual harassment claims:¹

• The EEOC saw a more than 12 percent increase in charges alleging sexual harassment over the prior fiscal year, reversing a year-over-year decrease since 2010; 
• The EEOC filed 66 harassment lawsuits on behalf of claimants, 41 of which included allegations of sexual harassment, reflecting a more than 50 percent increase in sexual harassment lawsuits over the prior fiscal year;
• The EEOC recovered nearly $70 million for victims of sexual harassment through litigation and administrative enforcement, up from $47.5 million during the prior fiscal year. ²

But while the #MeToo movement has spurred an increase in sexual harassment claims, a larger question is whether it has influenced the results of those claims. While that largely remains an open question, cases are starting to coalesce along three different paths, with strikingly distinct outcomes: 1) cases in which courts continue to apply traditional standards (often resulting in defense judgments for employers); 2) cases going to trial and resulting in enormous plaintiffs’ verdicts; and 3) cases ending in high-value settlements. 

Courts applying traditional sexual harassment standards

As a threshold matter, courts are continuing to apply traditional legal standards despite the increased attention to sexual harassment claims in news media and popular culture. These standards are difficult for plaintiffs to meet. 

The basic elements of a sexual harassment claim include: 

1. the claimant is a member of a protected group; 
2. the claimant was the subject of unwelcomed sexual harassment; 
3. a causal nexus existed between the harassment and the protected group status;
4. the harassment affected a term, condition, or privilege of employment; and 
5. the employer knew or should have known of the harassment and failed to take prompt and effective remedial action. 

The #MeToo movement has drawn the most attention to the fourth element, which focuses on whether the conduct at issue constitutes harassment under the law. To prevail on this element, a plaintiff must show that the unwelcomed conduct was “sufficiently severe or pervasive to create an environment that a reasonable person would find hostile or abusive and that actually altered the conditions of the victim’s employment.”³ Historically, courts have maintained a very high bar for what constitutes “severe or pervasive” conduct. In perhaps the largest disconnect between the #MeToo movement and the law, physical touching, lewd comments, and propositions for sex—which are culturally perceived as highly inappropriate and lie at the core of the #MeToo movement—are often not sufficient to constitute an actionable claim. 

In a September 2018 case in the Northern District of Georgia,⁴ for example, the plaintiff alleged three different male employees sexually harassed her by inappropriately touching her—including in her private areas—and making several sexually suggestive comments. The court ultimately granted summary judgment for the employer, relying on a number of cases in which similar, if not more egregious, conduct was found to be insufficiently severe or pervasive. The court also found that even if the conduct alleged were severe and pervasive, the plaintiff did not explain how the allegations interfered with the conditions of her employment. In support of that conclusion, the court pointed to the plaintiff’s testimony that she enjoyed her job notwithstanding how she was treated. 

As another example, in a 2018 case in the Western District of New York,⁵ the plaintiff alleged a male coworker made sexually suggestive comments to her, used a bottle of salad dressing to make sexual gestures toward her, and openly expressed interest in seeing private parts of her body.

The court again granted summary judgment for the employer, stating that the limited number of allegations over 13 months could not be characterized as “pervasive,” and that no reasonable jury could consider the male employee a “constant source of interference” because the plaintiff admitted he only interacted with her once per week. The court concluded “[t]aken as true, the incidents alleged by Plaintiff represent the sort of sporadic, ‘offensive utterances’ that—while distasteful—cannot reasonably be construed as objectively severe.” 

Precedent requires most courts to continue to apply this standard. Indeed, while the #MeToo movement is several years old culturally, the pace at which the legal system moves means that many cases filed during the movement’s pendency have not been subject to appellate review. 

This has led to frustration among some lower courts. In December 2017, for example, one Hennepin County District Court judge recognized the incongruence between popular culture and the law and, while granting summary judgment for the employer, stated: 

Our courts need to revisit the issue of what facts constitute those sufficiently severe or pervasive acts to alter the conditions of the victim’s employment and create an abusive working environment. Cases which emanate from the 1980s, 1990s, or even the first decade of the present millennium no longer accurately reflect conduct that alters the conditions of a victim’s employment and creates an abusive working environment. Times change, and with them so too do the standards of conduct. This Court doubts that anyone would reasonably find some conduct, once found unactionable, is still unactionable today.... There has been a sea-change in cultural attitudes toward sexual harassment.... It is not a leap to say that gone are the days when men can use the workplace to further their prurient interests. Unwanted sexual advances, belittling sexual banter, touching, and mocking sexual language are no longer viewed as merely boorish, obnoxious, chauvinistic, or immature—they should be actionable. 

 Juries, however, are not so constrained. 

Juries awarding large plaintiffs’ verdicts 

Juries have more latitude to factor cultural changes into their decisions. On that score, the #MeToo movement has ushered in a new era of substantial jury verdicts in sexual harassment cases. For example, in a March 2019 case in New York,⁶ a female plaintiff alleged her male supervisor made verbal comments of a sexual nature, made sexual sounds and gestures (including licking his lips and breathing heavily), and slapped her backside. The jury awarded the plaintiff $1.7 million in compensatory damages and $11 million in punitive damages, for a total verdict (exclusive of fees and costs) of $12.7 million. 

In a September 2018 California case,⁷ two female plaintiffs alleged that their male supervisor made sexually inappropriate comments to them, touched one of them on the knee and in private areas, took pictures of one from behind, and pushed one up against the wall and told her he would make her a manager if she had sex with him. After the plaintiffs complained, they were removed from the work schedule. The jury awarded the plaintiffs $2 million for past emotional distress, $3 million for future emotional distress, and $6 million in punitive damages, for a total of $11 million before attorney’s fees and costs. 

Similarly, in a February 2019 New York case,⁸ a 32-year-old female plaintiff alleged that her 61-year-old male manager told her she would be required to have an affair with a leader if she wished to remain employed, falsely bragged to others about sleeping with her, cornered her as she was walking to a bathroom, pinned her against a wall, and tried to kiss her. When she told him that she was going to file an internal complaint, she was demoted. Ultimately, the jury awarded her $1.5 million for emotional distress and $500,000 for her claim of retaliation, for a total of $2 million before attorney’s fees and costs. 

Finally, in an April 2019 California case,⁹ the female plaintiff alleged that her male supervisor brought a male stripper to work dressed in a police uniform, made her watch pornographic videos, required her to follow his social media accounts (where he regularly posted photos and videos of sexual poses or situations), and sexually assaulted her twice by running his hand over her, once outside her dress and once under her dress. She alleged that she believed her employment was terminated for refusing to have sex with him. The jury ultimately awarded her $3.1 million in compensatory damages and $8 million in punitive damages, for a total of $11.1 million. 

These verdicts reveal several important trends. Most significantly, disproportionate punitive damages awards—some of which are double and triple compensatory damages—signal that juries are sending a strong message about what they view as unacceptable workplace behavior, likely shaped by the #MeToo movement. 

Parties negotiating large settlements

Finally, somewhere in between defense judgments and large jury verdicts, parties are negotiating high-value settlements. For example, in a December 2018 California case,¹⁰ Eliza Dushku, star of the CBS television show Bull, made allegations of sexual harassment against her co-star, including that he made several sexual remarks like “here comes legs,” and stated in front of others that he would bend her over his leg and spank her. Dushku also alleged that when shooting a scene with a windowless van, her co-star said he would take her to his “rape van,” which was reportedly filled with sexual objects. Finally, when Dushku made a gesture with three fingers, her co-star suggested in front of others that she wanted to have a threesome with him and another cast member. When Dushku confronted him about this behavior, she was written off the show. Dushku and CBS reached a settlement agreement wherein CBS paid Dushku $9.5 million, the price of her entire contract. 

In another 2018 California case,¹¹ a female police officer for the city of Los Angeles alleged her new supervisor sexually harassed her by massaging her shoulders, placing his hand on her thigh, leering at her in a sexually suggestive way, and making comments about her body, despite her repeated requests that he stop. The parties reached a settlement agreement in which the police officer agreed to resign in exchange for $1.6 million. 

Of course, many settlements are kept confidential, limiting the universe of data. But these settlements illustrate the unique pressures that the intersection of the #MeToo movement and the law place on litigants. On the one hand, plaintiffs have an incentive to try to settle claims because the law continues to impose high hurdles for sexual harassment claimants. On the other hand, employers may have an incentive to settle claims to which they have strong legal defenses, but which present challenging public relations problems in the #MeToo era. 

What’s next? 

All of this has resulted in efforts, both nationally and in Minnesota, to change the law to better align with the cultural norms exemplified in the #MeToo movement. In both 2018 and 2019, for instance, the Minnesota Legislature considered bills that sought to change the definition of sexual harassment by explicitly stating that an intimidating, hostile, or offensive environment does not require the harassing conduct or communication to be “severe or pervasive.” While the bill has yet to pass, it is likely to be re-introduced in coming legislative sessions. 

Nor are these efforts limited to the Legislature. The Minnesota Supreme Court has taken up the issue, reviewing the Minnesota Court of Appeals’ January 2019 grant of summary judgment in Kenneh v. Homeward Bound.¹² In that case, the plaintiff alleged her coworker made sexually charged comments, licked his lips, and offered to cut and style her hair. In affirming summary judgment for the employer, the Minnesota Court of Appeals stated:

While these actions may be boorish and immature, they do not rise to the level of actionable harm. And, as noted above, the fact that [plaintiff] was “uncomfortable, embarrassed, and upset” about [her co-worker’s] behavior does not render the conduct actionable as sexual harassment. 

The Minnesota Supreme Court granted the petition for review, which stated, “[t]he severe or pervasive standard is causing women to face an absurd and impossible burden in these cases in Court.” If the Supreme Court agrees to change the standard, it would mark one of the most tangible legal effects of the #MeToo movement. 

Conclusion