US federal law does not require employers, including private companies or the government, to set up internal anti-sexual harassment training mechanisms. Instead, it regulates the issue from the perspective of exemption from liability. Where sexual harassment accusations are made and alleged to have taken place in a “hostile work environment,” an employer can be exempt from liability if it can prove that the company already provided the victim with reasonable complaint and relief procedures, and that the victim unreasonably failed to use them. This kind of system design incentivizes companies to adopt policies that actively prevent internal sexual harassment.
Before “Me Too,” California and Connecticut had clear state laws requiring employers to formulate measures to prevent sexual harassment, discrimination, and retaliation.
After many members of Congress were faced with allegations of sexual misconduct, Congress approved legislation requiring all 535 Congress members and their employees to receive mandatory anti-sexual harassment training. Maine and Virginia also proposed that employers with more than 15 employees must require mandatory anti-sexual harassment training.
On February 6, 2018, the House of Representatives overwhelmingly passed legislation by voice vote that would reform the way Capitol Hill handles sexual harassment cases, aiming to streamline the complaint process and improve public transparency. The bill would no longer require Congressional staffers to go through psychological counseling and mediation before filing a complaint. Instead, complainants would be able to immediately contact a lawyer and may choose to initiate an investigation or to file a federal lawsuit. When lawmakers settle sexual harassment charges, the legislation prohibits “public funds for private use,” and requires them to be personally responsible for any settlement fees. At the same time, the Office of Compliance would be required to publish statements online every six months, specifying the settlement fees and offices in which allegations of sexual harassment occurred.
The “Me Too” movement has given significant impetus to the prevention of sexual harassment in the US. I came to the US for an academic visit in mid-January. In three short weeks, I saw daily news about sexual harassment in the media and scrolling broadcast notices on the subway that said, “sexual harassment is a crime, if you experience sexual harassment on the subway, please notify our employees right away.” In the process of visiting the EEOC, federal judges, law offices, legal aid agencies and law professors, sexual harassment was always a hot topic of discussion.
Using a movement to promote social change has its advantages—it is rapid and passionate, it has attracted universal attention, and it will usually overcome opposing voices. But there also exists another challenge; how to protect the rights of perpetrators so that they receive a punishment that is proportional to their individual offenses? How do you prevent this kind of movement from becoming another form of oppression? Is there a rational response from a legal point of view? These are thoughts from outside the movement that also need to be considered.
(He Xia, Assistant Law Professor, Southwestern University of Finance and Economics)