In the wake of the #MeToo movement, companies have taken swift and severe disciplinary action against alleged harassers, raising questions in some instances as to whether their responses were justified. This Essay, prepared for the Yale L.J. Forum’s symposium on the sexual harassment scholarship of Professor Vicki Schultz, argues that balancing the goals of the #MeToo movement with principles of fairness to the accused demands attention to an overlooked aspect of the problem: the status of the alleged harasser. The background rule of employment at will, coupled with employer contracting practices and the law of sexual harassment itself, produces a world in which employers are inclined to tolerate sexual harassment and other misconduct by top dog employees, but aggressively police “inappropriate” behavior by the rank-and-file. Changing the calculus will require abandonment of long-standing contracting practices that protect high-level employees and the adoption of collective bargaining-style protocols for dealing with vulnerable workers accused of harassment.
Rachel Arnow-Richman, Of Power and Process: Handling Harassers in an At-Will World, 128 Yale L.J. Forum 85 (2018)