And this isn’t the only area in which red and blue states are diverging on how much protection they provide for their citizens’ fundamental rights. Federal failures and state-level variations in sexual harassment law also create major discrepancies in equality in the workplace.
Since the #MeToo movement erupted in October 2017, we have seen overwhelming evidence of a sexual harassment and sexual assault epidemic that reaches nearly every corner of society and has persisted for decades. By any measure, the prevalence of sexual harassment is appallingly high; even the most conservative estimates indicate that 25 percent of all workers experience harassment on the job in some form. The accounts women have offered under the #MeToo hashtag have revealed a deeply ingrained and pervasive cultural problem, and the fact that sexual harassment is so prevalent and that unmasking and punishing it have proved so difficult demonstrate major problems in the laws intended to prevent workplace misconduct.
Title VII of the Civil Rights Act, a federal law that prohibits employment discrimination including sexual harassment, has improved conditions in the 55 years since its enactment. But #MeToo makes utterly plain that it has fallen short for millions of women.
Myriad flaws prevent the law from delivering real equality to working women, starting with a vague “severe or pervasive” standard for proving sexual harassment. That standard often allows judges to reflect their own gender bias and their own personal sense of what conditions might affect their ability to do their jobs when deciding cases. Title VII doesn’t hold harassers personally liable for unlawful behavior, limiting employees’ ability to hold harassers accountable. The statute too narrowly defines who is a supervisor, thus limiting employer liability. And most troubling, it doesn’t provide protection to independent contractors at all, including those in the gig economy, despite the fact that nearly 60 million Americans and counting work under these arrangements for some portion of their income. For workers who are able to get some relief under the law, compensation is a fraction of what Congress initially intended: Damage caps set 28 years ago have lost nearly half their value over time. And unions, which have been so vital in protecting the rights of low-wage earners, are under assault like never before, making workplace harassment more likely to go unaddressed in certain sectors.
Because Title VII establishes such inadequate sexual harassment protections across the country, state law can have a major impact on the risks that women face in their workplaces and remedies available to them. The #MeToo movement has inspired some states to take action to protect workers under their jurisdictions.
Just last month, the New York legislature passed wide-ranging reforms that give workers significantly better protection than what is available under Title VII. Rather than having to suffer “severe or pervasive” harassment before they can get relief, employees are now protected from sex discrimination that creates “inferior” conditions — a clearer, fairer standard. The state also prohibits employers from using coercive arbitration clauses or confidentiality agreements to avoid accountability and requires training programs to ensure that workers know their rights and can bring complaints. California has enacted similar improvements to replace the “severe or pervasive” standard and bar abusive confidentiality agreements, among other reforms.
It’s unsurprising that New York and California have undertaken swift, decisive reforms on sexual harassment. Both the New York-based media and culinary industries and Hollywood were at the epicenter of the #MeToo movement’s early days. And both states have strong public support for antidiscrimination principles. The strides taken in these states and elsewhere are vitally important for millions of women. These successes should not distract, however, from the fact that millions of other women across the country still remain subject to laws that fail to deliver workplace equality.
Outside New York and California, efforts to close the gaps in federal protections have been narrower in scope and almost entirely limited to other blue states such as Maryland, Illinois and Vermont. A handful of red-state reforms have delivered incremental improvements, like Arizona and Tennessee’s new restrictions on certain abusive nondisclosure agreements, but as time goes on it’s becoming clear that women in red states are being left behind. For these women, the same federal standards that allowed the sexual harassment epidemic to thrive are the only legal recourse: If they are not subject to an unfair arbitration clause, a practice which bars 60 million workers from going to court, or excluded because they’re a contractor, they have to hope that the judge in their case has a realistic sense of what it’s like for women to face harassment in the workplace and that outdated valuations on their injuries can provide real compensation for what they’ve endured. As blue states pull ahead with reform, women in red states fall further into second-class status in the workplace.
For meaningful equality that reaches women throughout the nation, we need action such as the Be Heard
Act recently introduced in the House — comprehensive federal legislation for all workers that revises the “severe or pervasive” standard, covers more employees and requires employers to do more to prevent harassment from occurring in the first place. While it’s unlikely that Be Heard will pass in the current Congress, a federal solution to our sexual harassment epidemic must remain an urgent priority and should be relentlessly sought as a nonpartisan effort to deliver basic constitutional rights. Under our current system, millions of women face unequal, unfair, career-derailing sex discrimination on the job and have little protection if they happen to work in the wrong place at the wrong time.
Our constitutional commitment to equality promises better, for every woman in America.