Category: Scholarship

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Beyond #MeToo

Deborah Tuerkheimer

New York University Law Review, November, 2019

Abstract

The #MeToo movement has ushered in a new kind of sexual misconduct accusation—accusation leveled through informal channels of communication. A functional analysis shows that unofficial reporting can advance important ends. But the rise of informal accusation should be of special concern to legal scholars and lawyers, who generally proceed from certain assumptions regarding the primacy of formal systems of accountability. These basic assumptions need revision if, by aiming to satisfy goals that our laws and legal institutions fail to achieve, informal reporting channels are serving as substitutes for the officially sanctioned mechanisms of accountability that monopolize scholarly attention. Unofficial reporting pathways are imperfect legal workarounds; their prevalence means that the law of sexual misconduct has been consigned to a relative state of quiescence. Over time, survivors, long disserved by the criminal law, by campus disciplinary processes, and by workplace complaint structures, have mostly turned away from the systems that have forsaken them. A needed redesign of official complaint channels should be informed by the benefits of informal reporting, along with a commitment to awakening law.

Available at: https://www.nyulawreview.org/wp-content/uploads/2019/11/Tuerkheimer.pdf

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Time, Equity, and Sexual Harassment

Joseph A. Seiner, Time, Equity, and Sexual Harassment, 12 U.C. Irvine L. Rev. 573 (2022).

Abstract

Sexual harassment remains a pervasive problem in the workplace. Recent studies and empirical research reveal that this unlawful conduct continues to pervade all industries and sectors of the economy. The #MeToo movement has made great progress in raising awareness of this problem and in demonstrating the lengths that some employers will go to conceal a hostile work environment. The movement has further identified the lasting emotional toll workplace harassment can have on its victims.

The research in this area demonstrates that the short timeframe harassment victims have to bring a federal discrimination charge—180 or 300 days depending on the state—is wholly inadequate. The deception, misrepresentation, and sexual abuse encountered by many workplace harassment victims can make it impossible to file a timely charge. The pandemic has further highlighted the difficulties harassment victims can face in meeting this deadline through no fault of their own. This Article argues that the only practicable solution to this problem is a more robust application of the centuries-old doctrine of equitable tolling to pause the harassment time filing deadline where appropriate.

This Article identifies five equitable tolling guideposts that the courts should consider before dismissing a sexual harassment claim on the basis of an untimely charge—psychological harm, employer threats, fear, workplace deception, and public health. This Article discusses how each of these markers may impact the timeliness of a harassment claim and explains when the use of equitable tolling may be appropriate. Given the extensive research in this area, as well as our expanded understanding of the pervasiveness of sexual harassment in the workplace, employers should no longer be permitted to run out the clock on these claims through their own improper conduct.

Available at: https://scholarship.law.uci.edu/ucilr/vol12/iss2/21/

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Legal Limbo of The Student Intern: The Responsibility of Colleges and Universities to Protect Student Interns Against Sexual Harassment

Cynthia Grant Bowman & MaryBeth Lipp, Legal Limbo of The Student Intern: The Responsibility of Colleges and Universities to Protect Student Interns Against Sexual Harassment, 23 Harv. Women’s L.J. 95 (2000).

“Professors Cynthia Grant Bowman and MaryBeth Lipp explore how some student interns may fall through the gaps between Title VII and Title IX. They demonstrate that under current law, no one may be held liable for the sexual harassment of unpaid student interns. They emphasize, however, that Title IX should address this problem.”

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Nan Stein, Sexual Harassment Left Behind: What the Bullying Framework Is Doing to Civil Rights Laws and Framework (Audiocast)

Nan Stein, Sexual Harassment Left Behind: What the Bullying Framework, Wellesley Centers for Women lunchtime Seminar Series, Nov. 4, 2010.

“In this presentation, Senior Research Scientist Nan Stein, Ed.D., will discuss three main points related to the use of the label “bullying” in schools: the term “bullying” is imprecise and vague, and used as a default, a crutch, and a place holder; there is no agreement on the definition of “bullying,” and neither state laws nor researchers can agree on a common definition; and claims of effectiveness of classroom interventions/curriculum on bullying reduction are often inflated, exaggerated, and self-serving, and should be met with skepticism.”

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Deborah L. Brake, School Liability for Peer Harassment After Davis: Shifting From Intent to Causation in Discrimination Law

Deborah L. Brake, School Liability for Peer Harassment After Davis: Shifting From Intent to Causation in Discrimination Law, 12 Hastings Women’s L.J. 5 (2001). 

“This essay seeks to explain the Davis v. Monroe County Board of Education case as an interpretation of discrimination that notably and correctly focuses on how institutions cause sex-based harm, rather than on whether officials within chose institutions act with a discriminatory intent. In the process, I discuss what appears to be the implicit theory of discrimination underlying the Davis decision: that schools cause the discrimination by exacerbating the harm that results from sexual harassment by students. I then explore the significance of the deliberate indifference requirement in this context, concluding that the standard, for all its flaws, is distinct from and superior to a search for discriminatory intent. The final section offers a brief analysis of what Davis could mean for discrimination law more broadly if courts seriously applied the insights embedded in the Davis case.”

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Jennifer Ann Drobac, Sex and the Workplace: “Consenting” Adolescents and a Conflict of Laws

Jennifer Ann Drobac, Sex and the Workplace: “Consenting” Adolescents and a Conflict of Laws, 79 Wash. L. Rev. 471 (2004).

“According to the Equal Employment Opportunity Commission, sexual harassment of adolescents at work may constitute a serious, but to date largely undocumented, problem. Courts respond inconsistently to adolescent “consent” in sexual harassment employment cases. This Article reviews state criminal statutory rape law, federal civil law, and tort law to reveal the conflicting legal treatment of adolescent capacity to consent to sex. It highlights conflicts not only between the criminal and civil systems, but also between sister states’ laws and laws within states. For example, this Article finds that despite criminal sexual abuse laws, courts permitted employers to use adolescent “consent” as a defense to sexual harassment in approximately fifty percent of the surveyed common law tort cases across the nation. After exploring the public policy goals for these various laws, this Article concludes that these goals do not justify the blatant conflicts between tort and criminal laws. This Article recommends both administrative and statutory reform to protect minors from the predation of adult supervisors and employers. Particularly, it recommends a strict liability standard in an approach that makes an adolescent’s consent to sex with an adult at work voidable by the minor.”

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Civil Rights Without Remedies: Vicarious Liability Under Title VII, Section 1983 and Title IX

Catherine Fisk & Erwin Chemerinsky, Civil Rights Without Remedies: Vicarious Liability Under Title VII, Section 1983 and Title IX, 7 WM. & Mary Bill Rts. J. 755 (1999). 

“The Supreme Court has taken an inconsistent approach to allowing vicarious liability under major civil rights statutes. In recent cases, the Court has permitted qualified vicarious liability for supervisors’ sexual harassment under Title VII, but rejected vicarious liability under Title IX. Earlier, the Court rejected vicarious liability for local governments sued under Section 1983. In this Article, Professors Fisk and Chemerinsky describe the Court’s inconsistent approaches and argue that they cannot bejustfied by the text or legislative history of these statutes. Professors Fisk and Chemerinsky argue that each of these statutes is meant to achieve the same purpose, deterring civil rights violations liability advances these goals, and that the Court, therefore, should interpret each of these important civil rights statutes to allow such liability.”