#TimesUp on Individual Litigation Reform: Combatting Sexual Harassment through Employee- Driven Action and Private Regulation

By Dugan, Natalie | Columbia Journal of Law and Social Problems, Winter 2020 | Go to article overview

#TimesUp on Individual Litigation Reform: Combatting Sexual Harassment through Employee- Driven Action and Private Regulation


Dugan, Natalie, Columbia Journal of Law and Social Problems


I. Introduction

In early October 2017, the New York Times published a bombshell report alleging severe sexual misconduct by American film producer Harvey Weinstein, closely followed by a New Yorker article also alleging additional instances of harassment and rape by Weinstein.1 In the wake of the damaging news coverage, over eighty women in the film industry came forward and accused Weinstein of sexual misconduct thereafter.2 Weinstein subsequently resigned from the board of his company; the production of one of his films was suspended; and his membership to a number of prestigious film organizations was revoked.3 More than six months after the scandal first broke, Weinstein was indicted in New York City in May 2018, on charges of rape and criminal sexual acts.4 Since then, in what has been termed the "Weinstein Effect,"5 over 350 other high-profile members of the film industry have been accused of sexual harassment or rape.6

The Weinstein scandal proved to be a watershed moment for public and collective recognition of sexual assault and harassment in not only the film industry, but also the workplace broadly. The movements sparked by the nation's reckoning of professional harassment have come to include the #MeToo movement, the TimesUp Legal Defense Fund, and legislative pushes to abolish both non-disclosure agreements in sexual harassment settlements and mandatory arbitration agreements that relegate harassment claims to the hands of private arbitration companies. This Note principally argues that the solutions proposed by many of the current efforts to eradicate sexual harassment are inadequate, and that instead, a private regulatory scheme created and executed by workers themselves would prove more successful.

Part II of this Note briefly reviews the tenets and goals of the aforementioned movements that followed in the wake of the Weinstein scandal as well as these movements' demonstrable successes, if any. Part III then discusses the barriers to success these movements have faced before critiquing these movements' narrow focus on overtly sexual misconduct and investigating how excluding non-sexual forms of misconduct will hamper impactful change. Additionally, Part III also analyzes these movements' failure to adequately address the pre-existing shortcomings of the U.S. court system as an arena for combatting sexual harassment in the workplace, highlighting unfavorable judicial precedent as it relates to employment class actions and corporate liability.

Next, Part IV of this Note argues that employee-driven groups, such as the Fair Food Program, which is an organization created to combat human rights abuses in the Florida tomato industry, can offer an effective, alternative means of preventing sexual harassment. Specifically, Part IV discusses the ways in which employee-driven groups can effectively combat the prospect of professional retaliation, address broad patterns of harassment, and hold corporations accountable in ways that existing solutions cannot.

This Note concludes in Part V by offering possible means of government intervention that might facilitate cooperation between corporations and employee-driven groups. Drawing on corporate social responsibility tactics that have enabled the creation of private, regulatory bodies comparable to the Fair Food Program, Part V offers a number of avenues through which government intervention might aid the implementation of an employee-driven group aimed at reducing harassment. Given the severity and frequency of workplace sexual harassment, as illuminated by the Weinstein scandal, alternative solutions, as well as any subsequent government intervention required to implement those solutions, are of critical importance.

II. Harvey Weinstein, Sexual Misconduct, and the Collective Uprising that Followed

This Part of the Note briefly reviews a number of movements that arose in the wake of the Weinstein scandal and assesses the measurable success these movements have had thus far. …

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