Former federal District Court judge Nancy Gertner submitted a column in a recent edition of Massachusetts Lawyers Weekly (subscription required) about the current #MeToo movement. I'd like to pull out some points she made in her piece. But before diving in, it is important to note that prior to being elevated to the federal bench in the 1990s, Gertner herself worked as a civil rights and criminal defense lawyer. Included within civil rights work are employment discrimination cases, and within that, sexual harassment matters. She particularly represented employees who had been discriminated against or harassed. In the column, she also shares some of her own #MeToo stories.
Between representing employees seeking to vindicate their rights to be free from harassment and discrimination, encountering her own, and then going on to preside over federal discrimination and harassment matters on the bench, Judge Gertner adds a special voice to the current discussion.
She mentions the struggles plaintiffs have in federal court in employment cases.
Almost 80 percent of employment discrimination cases never make it to a jury, she writes. And further, "more civil rights verdicts are overturned by courts than in any other category of cases. Even favorable verdicts fare worse on appeal than verdicts in other cases."
"Why is this?" she asks. Her answer:
Courts care more about the costs to defendant companies of groundless claims than they do about the costs to women of having harassment ignored; more about false positives (wrongly accusing someone), than about false negatives (wrongly exonerating someone). If naming and shaming changes that — and it just might — it will have accomplished a great deal.
There is something profound about the wave of the #MeToo movement. It is strong and for the moment, it seems unrelenting. After all, It has been building up for a long time. We are now experiencing the crushing of it across our collective shores.
Because the truth is, of course, the seedy actions we see coming out in the news now have been taking place for eons. The harasser was taking power and privilege and abusing it, and the person harassed was often initially shocked and frozen, and over the longer term, scared about discussing it with others. Would she be believed or, rather, gaslit? Would her career suffer if she mentioned it?
For an employee seeking to vindicate her rights, even seeking out an attorney about options can be a nerve-wracking experience. And the litigation often necessary can be costly, both financially and energetically.
It just takes a lot to go through the process.
And so Gertner's conclusion about one of the reasons for the #MeToo movement -- that the law has failed us -- is profound. But so is her point that #MeToo just might change things.
It seems to be re-establishing social norms for what is considered acceptable behavior. That will have an effect on individual actions and workplaces across Massachusetts and the US. And it may also have an effect on civil rights plaintiffs' success in vindicating their rights.
I am hopeful. With 2018 just around the corner, we shall see.
Doorways Employment Law is a virtual employment law practice, leveraging the power of technology to connect with clients in the most efficient and convenient way possible. It specializes in employment law counseling, strategic advice and representation to individuals and businesses across Massachusetts, including on issues relating to sexual harassment and employment discrimination. Contact Doorways Employment Law for an employment law consultation.