In a later article, I found myself arguing on the same side as Professor MacKinnon, contending that the civil action for sexual harassment based on the creation of a "hostile work environment" was consistent with the First Amendment. I argued that the requirement that the harassment effectively change the plaintiff's terms and conditions of employment rendered the proof of the claim through words evidence of a "verbal act" and thus the statute didn't regulate ideas or pure expression, but differential treatment in the workplace.
So I was curious to read Professor MacKinnon's op-ed in the New York Times, "#MeToo Has Done What the Law Could Not." My first response was to think that MacKinnon was giving herself and other advocates too little credit. But then, as someone who has represented plaintiffs in Title VII cases, I found myself nodding when I read:
It is widely thought that when something is legally prohibited, it more or less stops. This may be true for exceptional acts, but it is not true for pervasive practices like sexual harassment, including rape, that are built into structural social hierarchies. Equal pay has been the law for decades and still does not exist. Racial discrimination is nominally illegal in many forms but is still widely practiced against people of color. If the same cultural inequalities are permitted to operate in law as in the behavior the law prohibits, equalizing attempts — such as sexual harassment law — will be systemically resisted.I'd like to disagree with that, but more than just the news today in 2018 had me nodding along with this passage.
My own experience in my years as a plaintiff's side employment discrimination lawyer, representing mostly women and people of color who had been subjected to differential pay and treatment, and cases I had seen my colleagues bring, and yes, damn it, the news too, lead me to agree with her. My old and dear friend Anthony Clark has just published a thorough and powerful article in the Daily Beast detailing sexual harassment by, and lack of consequences to, Allen Weinstein, the late Archivist of the United States, that underlines MacKinnon's point perfectly. Anthony painstakingly and meticulously lays out how, despite an investigation that substantiated the allegations against him, Weinstein was allowed to resign, reputation intact, and go on to another post:
But Weinstein resisted leaving, offering investigators, through his attorney, a variety of reasons why he should remain, chief among them the need for “continuity” in leadership at the Archives. Weinstein inferred that a deputy of his was under investigation (there is no publicly available information to support this claim) and also said that another individual who was available to assume leadership of the agency “had health concerns.”MacKinnon sees a significant improvement, one stemming not from the law, but from a cultural change. She writes:
Later that summer, Weinstein’s attorneys dropped the push to keep Weinstein on the job. But in an effort to avoid a potential prosecution, they provided the explanation that his medication was to blame for his behavior.
On Dec. 4, 2008, several weeks before Bush’s second term ended, Weinstein announced his resignation, effective in two weeks. He immediately became a visiting professor at the University of Maryland College of Information Studies, from which, 18 months later, he was fired after university officials learned that he had sexually assaulted at least one student there.
This logjam, which has long paralyzed effective legal recourse for sexual harassment, is finally being broken. Structural misogyny, along with sexualized racism and class inequalities, is being publicly and pervasively challenged by women’s voices. The difference is, power is paying attention.She proposes certain reforms to make the law more effective--personal liability for perpetrators, longer statutes of limitation in which to file an action, "prohibitions or limits on various forms of secrecy and nontransparency that hide the extent of sexual abuse and enforce survivor isolation, such as forced arbitration, silencing nondisclosure agreements even in cases of physical attacks and multiple perpetration, and confidential settlements."
Powerful individuals and entities are taking sexual abuse seriously for once and acting against it as never before. No longer liars, no longer worthless, today’s survivors are initiating consequences none of them could have gotten through any lawsuit — in part because the laws do not permit relief against individual perpetrators, but more because they are being believed and valued as the law seldom has. Women have been saying these things forever. It is the response to them that has changed.
Revulsion against harassing behavior — in this case, men with power refusing to be associated with it — could change workplaces and schools. It could restrain repeat predators as well as the occasional and casual exploiters that the law so far has not. Shunning perpetrators as sex bigots who take advantage of the vulnerabilities of inequality could transform society. It could change rape culture.
Some of these measures would have helped Maryellen Trautman, who went on the record with Anthony about Weinstein's behavior toward her. Some raise issues as to implementation and degree. But after decades in which legal protections were only intermittently able to protect, we seem to be at a time when there is a chance to do better.