#MeToo Series: This post is part of a series on #MeToo, sex discrimination, and possible solutions that amount to more than quick fixes. You can read earlier posts here and here, as well as some related posts here and here.

Recent stories have underscored why systemic solutions are desperately needed, and why they have to be part of conversations about #MeToo. Some of the mechanisms that have enabled harassment and limited our ability to fix it are dry, technocratic legal rules. Solutions to #MeToo, therefore, must address those legalisms, particularly the availability of legal remedies and legal protections for accusers. I wanted to flag three stories that, in my view, underscore this point. In a previous post, I wrote about Stormy Daniels, NDAs and private arbitration. This post will address another story with lessons for #MeToo—the Claire Foy story, pay disparities, & enforcement mechanisms.

It was recently reported that Netflix paid Claire Foy, the actress who stars in The Crown as Queen Elizabeth, less than Matt Smith, the actor who plays Queen Elizabeth’s husband. Foy has been nominated for SAG, Emmy, and Golden Globe awards for her role on The Crown, and she won both a SAG and a Globe award. Smith was nominated for a Broadcasting Press Guild award based on his role in The Crown, but he did not win.

Once news about the pay disparity broke, Netflix said two things: (1) when they signed Foy and Smith to their respective roles, Smith was more famous than Foy because of his role in Doctor Who and (2) going forward, no one will make more than the queen. Both responses are problematic.

Smith’s comparatively greater fame than Foy’s might explain why Smith was paid more than Foy for the first season of The Crown. It does not, however, explain why he continued to be paid more during season two, particularly because Foy had, by that point, won both the SAG and the Globe award. After the first season, it was also pretty apparent who the star of The Crown was. If Netflix had signed Foy to a two-year deal at the outset, it could have at least addressed the gender disparity during the second season, or compensated her for the disparity that arose because of the first season. Netflix did neither.

Instead, Netflix has promised that no one will make more than the queen going forward. But that’s no help to Foy given that Netflix is recasting the entire series effective season 3, as the story shifts forward several years.

Let’s assume, for a moment, that Foy was underpaid, and that Foy could establish that she was underpaid because she is a woman. I talked to Naveen Kabir, an employment attorney at Constangy, Brooks, Smith & Prophete LLP, who pointed out that women in Foy's situation often won't decide it's in their interest to sue for backpay. Doing so could jeopardize their ability to get hired going forward if studios and companies perceive people who take their employers to court over backpay as troublemakers. Private enforcement of laws (i.e., suits by private citizens) is often extolled as a helpful backstop for public enforcement (i.e., suits by the government), particuarly because public enforcement may disappear because of a change in administration, and change in enforcement priorities.  That's certainly the case, but sometimes public enforcement is needed when private enforcement might pose too many risks or too high costs to private parties.

Foy is far from the only woman in this situation. Soon after news of Foy’s salary broke, it was also reported that John McEnroe makes about 10x as much as Martina Navratilova makes for commenting on Wimbledon. But it’s not clear whether women like Foy or Navratilova have any effective remedies that are practically available to them.

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Systemic solutions shouldn’t get lost in anecdotes about powerful men victimizing women, and powerful women being victimized. While legalisms have enabled the persistence of harassment, they can also help in stopping it.

@LeahLitman

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