#MeToo and beyond: drive for legislation to force decisive action
Ruth Green
#MeToo has highlighted sexual harassment as never before and there are now positive signs of growing momentum for tougher legislation to ensure companies are taking decisive action. Inquiries into sexual harassment in the workplace have been launched in both Australia and the UK. In America and France there have been marked cultural shifts.
Kate Jenkins, Australia’s Sex Discrimination Commissioner, has been leading the inquiry in Australia and plans to publish a report on her findings in October. The current legal system in Australia places too much onus on employees to report misconduct. ‘From an employer point of view, what I've realised in Australia is that our laws on sexual harassment are very clear,’ says Jenkins. ‘They make sexual harassment at work unlawful, but they're really only enforced if someone brings a complaint and an employer will be liable if the complaint is upheld and they can't show that they've taken steps to prevent it.’
Jenkins says many employees are still reluctant to come forward and that there needs to be ‘much clearer responsibility' placed on organisations to proactively prevent sexual harassment. In the UK, the House of Commons’ Women and Equalities Committee and the Equality and Human Rights Commission have already called on the government to place a mandatory duty on employers to protect workers from harassment and victimisation.
In the US, there have been some legislative developments at a state level. However, the impact of #MeToo has been most keenly felt within companies, says Philip Berkowitz, Co-Chair of the IBA Diversity and Equality Law Committee and Co-Chair of Littler’s US international practice. ‘The states reacted very strongly in a number of ways, including introducing laws on non-disclosure agreements, but principally the whole issue was driven by the press and companies,’ he says. ‘A number of companies have taken very strong steps to make clear that they want employees to come forward.’
Employees themselves continue to be instrumental in driving this change in corporate culture. A mass walkout by Google employees in November forced the tech giant to roll out mandatory sexual harassment training across its US workforce. In May, following widespread protests by workers, McDonald’s CEO Steve Easterbrook announced the company was making changes to guarantee ‘a harassment and bias-free workplace’.
Where #MeToo has not led to legislative change specific to the workplace, it has resulted in general legislation on sexual harassment. In 2018, France passed a law enabling police to issue on-the-spot fines of up to €750 (£650) to tackle street harassment. French courts have issued close to 450 fines since the law was implemented last August.
This is a significant impact in a country where the idea of speaking out against sexual harassment is still dividing opinion. #BalanceTonPor – which literally translates as ‘Squeal on your pig’ – has been a combative riposte to #MeToo in France. ‘It’s a rather provocative, maybe even a violent way of translating the movement,’ says Roselyn Sands, an employment partner at EY Law in Paris.
This contrasts with an open letter published in 2018 in Le Monde signed by 100 high-profile French cultural figures that denounced the movement as a ‘witch-hunt' against men that threatened sexual freedom. ‘When you look at these two developments, you find yourself wondering what this all means,’ says Sands. ‘What I can say is that I do believe that men in France are paying attention. They’re not treating this as some absurd or funny issue like it was often treated in the past.’
We mustn’t apologise for seeking equality...We mustn’t apologise for calling things out
Baroness Hale
President of the UK Supreme Court
Although #MeToo has focused on exposing sexual misconduct, it’s hoped the movement could inspire other challenges to the status quo. ‘If you look at the categories of protected classes under discrimination law, sex and race always seem to come first in terms of countries passing laws,’ says Peter Talibart, who leads Seyfarth Shaw’s London office and is Co-Chair of the IBA Employment and Industrial Relations Law Committee. ‘There’s no reason why the women that spoke out in the #MeToo movement aren’t going to inspire many other men and women to stand up and speak out.’
Companies like Starbucks and more recently Sephora have gone public about conducting diversity training across their workforce, suggesting #MeToo is already having a wider impact. ‘If this is #MeToo1.0, #MeToo2.0 could be about race and #MeToo3.0 could be about religion or belief,’ says Talibart.
Sands says the #MeToo movement has had some unintended consequences. ‘I have heard examples in the US of male partners that don’t want to mentor women or don’t want to take their female counsel out for lunch anymore because they’re afraid [of what it might look like],’ she says. ‘Maybe that’s a little bump on the road, but I think in the long run, talent shortage is a key HR issue globally. So, corporations need to make women feel comfortable at work; we need everybody and everyone has to take these issues very seriously and not write them off.’
In June, Baroness Hale of Richmond, the current and first female President of the UK Supreme Court, told Global Insight that #MeToo and recent reports by the IBA and others had broken the silence on the prevalence of bullying and sexual harassment in the legal profession. ‘Lots of things 50 years ago, when I was called to the Bar, were taken for granted,’ she said. ‘And now they’re not and people are protesting about it and that’s a very good thing too.’
Hale says a certain amount of pushback is inevitable, but that no one should regret speaking out. ‘We mustn’t apologise for seeking equality, and that is true of the sexual harassment question as well,’ she says. ‘We mustn’t apologise for calling things out.’