In October 2017, an explosive investigative report in The New Yorker revealed the breadth and severity of sexual assault charges against movie mogul Harvey Weinstein. While some readers expressed incredulity that such heinous behavior could have continued unchecked for so long, many female readers began sharing their own accounts of assault and harassment. The #MeToo movement was born, toppling powerful men in government, entertainment, sports, and business and drawing attention to limitations in the way that the law processes and adjudicates claims of harassment and assault. For all the attention the movement initially received, 1 year later it is unclear how much impact #MeToo has had on the law.
A July 2018 study by The Pew Charitable Trusts found reason for optimism in the legislative response to #MeToo. The study found that six states had passed new legislation to address the ways in which nondisclosure agreements have been used to limit sexual harassment suits. New laws in these states lift those restrictions. Depending on the terms, a nondisclosure agreement may prevent a victim of sexual harassment from filing a criminal complaint or a lawsuit, or even from talking about any settlement reached in a dispute, or about the dispute itself. This contractually imposed silence may perpetuate harassment: if a victim of abuse or harassment is prohibited from speaking about that abuse, then the perpetrator is free to prey on new victims. The six states that have passed legislation related to nondisclosure agreements – Arizona, Maryland, New York, Tennessee, Vermont, and Washington – have taken slightly different approaches to addressing the problem. For example, the Arizona law does not impose a blanket ban on the use of nondisclosure agreements, but it provides that those agreements cannot be invoked to prevent victims from participating in criminal proceedings stemming from their abuse. The Washington bill, however, provided that an employee cannot, as a condition of employment, be forced to sign an agreement that preemptively bars the filing of sexual harassment complaints. Washington also voided any such contracts already in existence.
Responses to #MeToo have taken other forms, including investigating past abuses and enacting new policies to deal with abusive behavior. For instance, some states have tried to remedy delayed testing of rape kits, with Alaska allocating nearly $3 million to address its backlog in testing and North Carolina initiating a tracking system for rape kits (though the North Carolina legislature did not dedicate any funds to this endeavor). Further, according to Pew, most state legislatures have been diligent about policing themselves, updating or passing policies about dealing with complaints about sexual harassment and assault involving legislators and their staff. These measures suggest that #MeToo is having an effect on the law.
However, more recent studies indicate that the impact is smaller than we might expect. An investigation by USA Today found that the increase in harassment-and-assault–related legislation from last year to this year was slight. Between October 2017 and October 2018, 261 bills addressing these matters were passed by state legislatures compared with 238 the previous year. Only two of those bills address more than one issue: Vermont prohibits using nondisclosure agreements to prevent reports of sexual harassment and offers protection from sexual harassment to independent contractors as well as employees, while Delaware passed a law extending liability for employers who fail to act on reports of sexual harassment, strengthening prohibitions on retaliation, and enabling new investigations by the US Department of Labor. While these measures are promising, their relative rarity implies that the law has a long way to go in responding to #MeToo.