The #MeToo movement claimed another victory Tuesday when New York Governor Andrew Cuomo announced his resignation over numerous sexual-harassment allegations. As more and more powerful harassers face consequences for their actions in the form of resignations, firings, or broader public discrediting, many seem to believe that the #MeToo movement has fully upended the status quo. But as much as the court of public opinion has shifted in favor of victims of workplace sexual harassment, actual courts—where such victims should be able to seek relief for the abuse they have suffered—have not shifted nearly as much.
Sexual-harassment cases are a relatively recent phenomenon. The U.S. Supreme Court first recognized the legal claim of workplace sexual harassment in 1986, and since that time, employees have been able to sue for damages under Title VII of the Civil Rights Act of 1964.
There are two types of sexual-harassment claims. The first—quid pro quo—is generally pretty straightforward: Did a supervisor demand sexual favors as a condition of employment? But the second—a claim of a hostile work environment—has been a tougher sell in court. Unlike a quid pro quo claim, a hostile work environment can arise from sexual harassment by anyone in the employee’s workplace. To win a hostile-work-environment claim, a survivor has to demonstrate that what she experienced was “severe or pervasive” enough to constitute sexual harassment—which comes down to whether a “reasonable person” besides the victim would perceive the assailant’s behavior to be harassment.
Since 1993, when the Supreme Court created the reasonable-person standard, it has been a major obstacle to relief. Victims have been deemed unreasonable and lost their claims—including ones based on repeated, explicit, unwelcome sexual advances, and even incidents of sexual assault—because judges didn’t think a reasonable person would deem what had happened to those victims sexual harassment.
Four years ago, the #MeToo social-media outpouring transformed the way American society talks and thinks about workplace sexual harassment. One could have assumed that a revolution would soon be underway in America’s courts as well. After all, what was “reasonable” in 1993 looks pretty different in 2021.
But America’s courts are largely unmoved. Over the past two years, I’ve examined hostile-work-environment claims that reached federal circuit courts since #MeToo first gripped the public in October 2017 to see if federal courts’ definition of sexual harassment—of what is “reasonable”—has changed at all alongside the public’s. The majority of these kinds of cases are resolved through settlements, or don’t require enough explanation of the reasonableness standard to allow for a thorough examination of #MeToo’s effect. But from evaluating the roughly two dozen cases (including Equal Employment Opportunity Commission cases) from 2017 to 2020 that took a more definite stance on what is reasonable, I found that, despite the ongoing public reckoning, courts have not moved very far from where they started three decades ago. Sexual-harassment victims continue to lose in court, and their reasonableness—or rather, lack thereof—is what stands in their way.
Theoretically, reasonableness is up to the jury, and post-#MeToo one might assume that juries would be more favorable to victims. But judges can prevent cases from reaching a jury if they find that the employer should win as a matter of law—in other words, that no reasonable jury could find the victim to be reasonable. When courts find for employers, they might now be foreclosing a victim’s chance at relief that a modern jury would, in fact, grant her.
Take, for instance, a case decided in 2018, in which a female sales representative sued her employer after a business trip with a male co-worker took an unwelcome turn. The co-worker repeatedly made sexual advances over the woman’s objections, insinuated that they should skinny-dip together, and went into her hotel room and crawled into her bed, saying she needed a “cuddle buddy.” He eventually left, but continued to knock on the door of the woman’s hotel room throughout the night. After the woman reported the behavior to her supervisor, her company determined no discipline was necessary. When the case made its way to the Seventh Circuit, the court determined that this was not sexual harassment under the reasonable-person standard, because a reasonable person should have “the thick skin that comes from living in the modern world.”
In another case from that year, the Fifth Circuit held that a reasonable person would not believe that six interactions in which a female human-resources manager graphically described sexual encounters to a female employee met the severe-or-pervasive threshold, though it did call the commentary “unprofessional, unwelcome and distasteful.”
Or consider, more recently, a case from 2020 in which a female sales associate at a used-car dealership sued her employer for her supervisor’s treatment of her. According to the woman, her supervisor used derogatory names for female customers, openly bragged at work about his sexual escapades, said that he “never should have hired a woman,” tried to rub her shoulders, and once told her, “Oh, if you weren’t married and I wasn’t married, I could have you … You’d be mine … I’m a closer.” According to the Eighth Circuit, this was “reprehensible and improper”—but not severe or pervasive. Because the sales associate alleged only “one instance of unwelcome physical contact,” she was not the victim of a hostile work environment.
These beliefs—that a perception of sexual harassment comes from being thin-skinned, or that bad behavior has to be physical to count—have deep roots. For the past several decades, many courts have emphasized physical contact in determining whether sexual harassment occurred. Further, many refuse to consider single incidents of sexual harassment as such unless they are extreme. In an influential case from 2000, nicknamed the “one-free-grab” or “single-grope-rule” case, the Ninth Circuit held that a co-worker’s groping of a woman’s breasts—something that led to the co-worker’s criminal conviction for sexual assault—did not constitute sexual harassment because it was a single incident. The judge who wrote that opinion was Alex Kozinski, who resigned at the start of the #MeToo era after 15 women accused him of workplace sexual harassment.
This is not to suggest that courts preclude relief at every turn. Since (and before) #MeToo, courts have also sided with victims. For instance, in 2018, the First Circuit upheld a decision for a former firefighter who was spit on, shoved, and repeatedly called a “cunt,” and whose co-workers referred to her by a combination of her name and the word vagina. That same year, the Fourth Circuit sided with a firefighter who experienced regular harassment from her station captain, including inappropriate touching, tracking her movements at work, comments about wanting to see her in a bathing suit, and asking if she could “handle that big hose.” In 2019, the Fourth Circuit reversed a decision for an employer in a case where a female manager at a warehouse facility alleged that male employees had circulated a rumor that she was promoted because of a sexual relationship with a higher-ranking manager—something the court went out of its way to call “humiliating,” which might reflect an openness to #MeToo-era thinking. In 2020, the Sixth Circuit sided against the employer in a case in which a female employee at a jail alleged that a male co-worker repeatedly harassed her, including by making sexual advances, yelling at her in front of colleagues, and intentionally driving his truck within inches of hitting her.
Part of the difference here lies in the details of these cases, but a bigger issue is that circuits interpret what is reasonable differently from one another. If it seems like these cases are all over the place, it’s because they are. Not only is the standard failing to evolve with the times, but another problem—one that predates #MeToo—is that in many ways there is no clear standard at all. What some circuits see as legally actionable would not be so in others—which means whether a victim can get relief can depend on whether she’s lucky enough to fall within a jurisdiction that will grant it to her.
Even when more employer-friendly courts side with victims, what might seem like a deferential decision reflects a high standard of repeated, physical, unsafe conduct. In 2018, the Seventh Circuit—the same court that told a woman she needed to develop “thick skin” in response to workplace sexual advances—upheld a jury verdict in favor of a Costco employee who had been stalked by a customer for more than a year. The next year, the Fifth Circuit—which previously held that a manager’s repeated, graphic sexual commentary did not create a hostile work environment—determined that a nurse in an assisted-living home who had experienced years of unwanted sexual grabbing from a patient had an actionable claim. The physical and endangering nature of these forms of harassment sets them apart from the kind of routine workplace sexual harassment that the #MeToo movement has emphasized as unacceptable. As a result, in some circuits, victims of sexual harassment that is verbal or not physically endangering find themselves without recourse, even though the court of public opinion could very well come out strongly in their favor.
If a victim does manage to prove that she was reasonable in perceiving a hostile work environment, the second stage—the employer’s defense—creates another hurdle. The Supreme Court held in 1998 that, in addition to a reasonable person needing to find the behavior severe or pervasive, if an employer has mechanisms in place to address sexual harassment, and the victim’s response to the harassment she faced was not reasonable, the employer can escape liability. Typically, having some kind of sexual-harassment policy is enough to meet the first part of the test. For the second part, a victim’s failure to report, or to report the right way, can be fatal to her case.
Experts in sexual harassment have long shown that victims choose not to report for varied reasons. It can certainly be reasonable to avoid reporting workplace sexual harassment, especially if the harasser or the institution might retaliate. As a result, this standard can create a circular dilemma: Complaining could make a victim’s circumstances at work worse, but she is required by law to complain in order to make her situation better.
Courts have confronted this issue infrequently in the time since #MeToo gained traction, but when they have, they’ve generally maintained the same approach that existed before #MeToo. In 2018, the Fourth Circuit determined that a woman who was sexually assaulted by a co-worker unreasonably failed to take advantage of her company’s procedures, because she shared what happened only “with two non-supervisory individuals”—foreclosing her chance at relief. In 2019, the Seventh Circuit held that a female Walmart employee whose supervisor repeatedly commented on her breasts, including asking when he could see them, and made other repeated advances over her objections could not get relief, because she waited four months to report what was happening, and because her employer subsequently made the supervisor take an anti-sexual-harassment course. The same year, the Eleventh Circuit found for an employer after a female hotel employee alleged that a manager was spreading rumors that she had been promoted because of an affair with someone higher up, but did not report the alleged harassment until after she had been fired. She claimed that her reason for not reporting was fear of retribution, which the Eleventh Circuit determined was not a “valid” basis for failing to report.
There has, however, been one significant departure from the norm. In 2018, the Third Circuit expressly incorporated #MeToo into its analysis of a case, determining that a victim’s failure to report is not per se unreasonable, because, as many outside the legal system have demonstrated, many victims are deterred by the “futility of reporting.” In the case, which involved allegations of physical and verbal sexual harassment, the employer argued that the victim did not take advantage of reporting mechanisms, to which the woman responded that, as someone depending on her job to pay medical bills for her daughter, she feared telling her supervisor in case he reacted adversely. Noting “national news regarding a veritable firestorm of allegations of rampant sexual misconduct that has been closeted for years, not reported by the victims,” the Third Circuit determined that fear of speaking up could prevent a victim from reporting harassment, and therefore allowed the case to go to a jury.
Such a decision offers an example of precisely how ripe for reinterpretation these standards are, and precisely how something like #MeToo can change the legal landscape—but only if courts are willing to let it.
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