What Now?

When many of us glimpse at a headline and see the words “sex abuse scandal,” or “sexual harassment allegations,” we wearily cringe, all too accustomed to hearing about these pervasive problems, and ask ourselves, “What now?” “What bombshell story just exploded?” As the Harvey Weinstein story continues to ignite, I find myself now thinking that society ought to be asking the same thing, but with a more hopeful spin: What now? What do we do now? With the breaking of the Weinstein story, after decades of it being taboo to allege abuse by one so powerful, and with the “#metoo” campaign on social media, whereby women from around the world disclosed that they, too, have been victims of sexual harassment or assault, we are at a somewhat unique juncture in history. There has been a call to arms, and floodgates have opened; unprecedented numbers of people are telling victims and their advocates that they have their attention. We may finally have the momentum to advance the anti-harassment cause for ordinary workers, and not just victims of high-profile alleged offenders. What now, indeed?

I’ve had no fewer than five Facebook friends share a New Yorker article, penned by Molly Ringwald, entitled “All the Other Harvey Weinsteins.” In it, she eloquently decries what she says has been allowed to go on, but points out the ubiquity of women being demeaned, belittled, or exploited in the pursuit of their goals (or their ordinary days). By reminding us of all the “other Harvey Weinsteins” out there, she admonishes us to take notice of the fact that the prevalence of this treatment has resulted in its being (or caused it to be) normalized in our society— with complicit circles of secrecy shrouding power players, and with complacence and apathy shrouding those less powerful. By recounting her experiences with “other Harvey Weinsteins,” she adds her “#metoo” to the online campaign that most of us can see pervasively on our facebook feeds. But by recounting her own (nonsexual) experience with Harvey Weinstein, himself, she gives us a valuable insight that might be the key to the mobilization of the, as she says, “cri de coeur” of women that she (and we) would like to see.

In the article, Ringwald recounts incidents that portray Weinstein as, in her words, “testy,” and “volatile.” She recounts that she had to sue him over money that she was owed for a movie, and that, among other things, she had been “warned” that he was “difficult to work with, and that it was inadvisable to cross [him].” She is far from the first actress or colleague of his to ascribe these types of traits to him, and from these tales, he basically comes across as more than a harasser, but as a bully as well. Just today, around 30 staff members of the Weinstein Company staff released a joint statement, professing to have been ignorant of his status as a “serial sexual predator,” and noting that “Our company was built on Harvey’s unbridled ambition – his aggressive deal-making, his insatiable desire to win and get what he wanted, his unabashed love for celebrity – these traits were legendary, and the art they produced made an indelible mark on the entertainment industry. But we now know that behind closed doors, these were the same traits that made him a monster. He created a toxic ecosystem where his abuse could flourish unchecked for decades.”

Workplace bullying is something that a handful of us legal scholars have written about, usually bemoaning and publicizing its harms and advocating for its regulation; though certain types of harassment, like sexual harassment, are unlawful, garden-variety bullying is entirely lawful. There is even a model statute, The Healthy Workplace Bill, drafted by Professor David Yamada, which has been introduced, but failed to pass in no fewer than 30 states. Like the aggression against and exploitation of women, so often dismissed as petty slights, workplace bullying is usually laughed off by everyone from supervisors to legislators and seen as something that workers should have to be able to withstand. Yet like the punishing treatment of women in the workplace, workplace bullying tends to be a pastime of a distinct group of people who become known as serial offenders in various workplaces. Typically, it’s not as though someone is a sexual harasser, but an otherwise stand-up guy who would never be a garden-variety jerk to men and women alike. And while some bullies, cognizant of the law’s reach and limitations, might refrain from acts that might be construed as sexual harassment in furtherance of self-preservation, it may be said that lawful bullying and unlawful sexual harassment often go together.

And maybe this is the key to where we go from #metoo. Think about it. We have now seen more than one occasion in which decades of complicit, fearful silence have given way to cascades of fearless testimony, the victims likely emboldened by the turning of the tide of public opinion against the famous men they accuse and the din of other accusations. Celebrities have been made to reckon, in the court of public opinion, if nowhere else, with the charges leveraged against them. But employment discrimination law, and the law of sexual harassment and coerced workplace submission in particular, has not, in many ways, kept pace with the times. Sexual harassment plaintiffs are notoriously unsuccessful. Sexual harassment jurisprudence is, as many of us have noted, not plaintiff-friendly. Moreover, tacitly complicit bystanders and hapless victims alike form circles of silence around powerful recidivist offenders at all levels and from all walks of life every day. Mistrust of and limitations around anti-retaliation laws render them virtually toothless as potential whistleblowers and complainants wonder whether to blow their one reputation, career path, or opportunity set on speaking out, and determine that it is not. At the end of the day, there are recidivist offenders everywhere. And most are not currently being outed from their circles of secrecy by emboldened, supported, disgusted fearless accusers.

But here’s the thing. The awakening we’re seeing on social media and elsewhere will not be galvanized, and the burgeoning #metoo community will not have accomplished what it could have, if we cannot figure out how to transform #metoo and what we have seen acted out on the most public of stages into a routine that plays out in every box store break room and greasy spoon diner kitchen. Select actors and producers may fall from grace after decades of having secret allegations aerated, but rainmaking partners and industry influencers will continue to find refuge in the shadows of the fear of those who have not yet been emboldened to publicly name names and potentially stake large aspects of their futures on a quest for justice—and this describes most of the women partaking in the #metoo campaign. These are women (and men) who often have long careers ahead of them, kids to feed, and opportunities to be had, if they can run over the ice, skirt the puddles, and otherwise navigate the terrain any way they can to stay “safe.”

So here is what we do now. Seeing not only the innumerable harms that flow from workplace bullying, but its inextricable entwinement in so many cases with sexual, racial, and other unlawful harassment, we pass the laws we need to pass to render it unlawful as well. We acknowledge that perhaps when men start accusing recidivists of unlawful behavior alongside women, we just might reach the tipping point sooner, in workplaces and across industries, at which the cascades of allegations flow and the momentum builds to where it erodes the fear and inhibition that impede the truth from coming out.

The laws that would regulate workplace bullying (if they were passed) are not flimsy; they contain lofty and stringent standards. The type of behavior that would be captured is severe. It is the kind of behavior that leads your instincts to tell you you’re in danger-professional or otherwise, before your brain does. And it is the kind of behavior that we see time and time again tends to accompany sexual and other unlawful harassment that toxifies work, workplaces, and, most importantly, workers — unless it is rooted out. That should be what comes now.