The #MeToo Movement

Published:  March 2, 2018

The remarkable and persistent resonance of the Me Too movement has left several burning questions in its wake. The undeniable validity and necessity of the progress associated with the movement has also left business leaders scrambling to prepare for and deal with the blowback. Many have expected a deluge of new litigation, particularly for employers that have not historically taken adequate steps to train, monitor and remedy sexual harassment. Even the most vigilant employers, despite our best efforts, have been worried about the expected uptick in internal reports, administrative complaints and/or litigation.  However, until recently, there hasn’t been significant quantifiable data with which to temper expectations.

Recently, Massachusetts Commission Against Discrimination Chair Sunita Thomas-George stated that the MCAD has seen a statistically significant increase in sexual harassment claims. In January 2018, 29 sexual harassment complaints were filed at the MCAD. By comparison, 13 sexual harassment complaints were filed in January 2017. From 2014 to 2017, there was an average of 14 sexual harassment complaints filed in January. Additionally, there were 25 sexual harassment complaints filed in the first half of February 2018, compared to 5 sexual harassment complaints in the same period of February 2017. These statistics seem to confirm the expectations that sexual harassment litigation would boom in 2018. However, these numbers paint an incomplete picture.

There are still several relevant questions, to which we do not yet have answers. Certainly a large percentage of these complaints are representative of sexual harassment victims that had previously been reticent to report the harassment, likely due to fear of reprisal or embarrassment. There can be no doubt that many, if not most, of these complaints represent valid, meritorious claims. However, we also know from empirical evidence that the large majority of MCAD claims do not receive a probable cause finding, and therefore do not go forward. It is still too early to determine whether the increase in complaints represents a deluge of previously unreported, meritorious claims, or whether the same, large percentage of claims will receive a lack of probable cause finding.

Additionally, we do not yet know whether the increase in complaints represents a temporary uptick or will be a sustained increase. Given the historical treatment of sexual harassment complaints in the workplace, many or most incidents of sexual harassment are not reported, due to the victim’s fear of retaliation, fear of embarrassment, fear that they won’t be believed, or belief that complaining will be futile because it won’t be taken seriously. In the wake of the Me Too movement, many of these previously silent victims are more comfortable reporting the abuse. The questions is: does the current swell of complaints represents a one-time increase representing a buildup, almost like a backlog, of formerly silent victims? Or alternately, is the current swell of complaints representative of the true number of contemporaneous complaints, which will not abate going forward?

The last question is a familiar one. What can we do? Obviously, the best way to decrease the number of complaints filed, and consequently the volume of litigation, is to eradicate sexual harassment. Clearly, employers’ previous efforts were not working. Troublingly, it appears as though many well-meaning employers have reacted to this continuing problem with more action, not different action. The increase of ineffective steps will not change anything. Employers should be reassessing how they are addressing the issue, not how much. It is time to radically rethink our approach to this issue, and find a different way to address the problem. Otherwise, the number of sexual harassment complaints will never decrease.

If you have any questions about sexual harassment or any other labor and employment law matters, please contact the attorneys at Royal, P.C.