This post, which highlights an academic paper related to #MeToo, is part of a series on #MeToo, sex discrimination, and possible solutions that amount to more than quick fixes.  You can read about another academic paper here.

Building on my posts highlighting how #MeToo must focus on systemic solutions, I'm doing a series to highlight some recent papers that are related to #MeToo.  In addition to Professors Lesley Wexler, Jennifer Robbennolt, and Colleen Murphy’s paper, “#MeToo, Time’s Up, And Theories of Justice,” Professors Daniel Hemel (a Take Care contributor) and Dorothy Shapiro Lund recently posted a draft of their article, Sexual Harassment and Corporate Law, which is forthcoming in the Columbia Law Review.  Their paper offers an argument for whether, when, and why corporate law (meaning both state corporate law and federal securities law) can regulate sexual harassment in the workplace.

I won’t summarize all of their arguments here, but they offer some reasons to think that shareholders can sue corporate officers and directors when the officers or directors engage in sexual harassment (or other forms of sex discrimination) themselves, as well as when they fail to prevent and remedy sexual harassment by others.  Dorothy and Daniel also explain when companies could be liable for material misstatements or omissions regarding sexual harassment allegations or investigations.

Daniel and Dorothy’s article is an interesting and welcome look at one of the more difficult questions that has come up with respect to #MeToo—what would be effective remedies for sex discrimination, and what would be effective ways to prevent it?  Their paper offers some reasons to think that corporate law could supplement both existing remedies and prevention mechanisms, as well as  other yet-to-be implemented ones.  To those reasons (which you can read more about in their article), I wanted to add two others:  First, relying on corporate law, and specifically shareholder suits against a board, is a way of distributing fault within an institution. 

Why is distributing fault a good thing?  One reason is that it accurately captures one reason harassment persists, and that is when bystanders enable it.  When bystanders to harassment do and say nothing, they are doing something—allowing the harassment to continue, and isolating the victim.  That doesn’t mean bystanders are and should be grouped together with harassers.  But it does mean they have some responsibility when we are thinking about solutions to #MeToo.  Distributing fault also captures an important reality:  It is possible for institutions to generate big failures—and I mean big ones—through a series of small, seemingly innocuous individual decisions.  That is, each individual decision may seem harmless or rational in isolation, but those individual decisions can add up to generate a system in which institutions have allowed rampant harassment and predation to continue with no consequences for anyone except the victims.  Corporate law is a mechanism for regulating institutions and systems; it distributes fault within them, and that makes it a theoretically appealing mechanism for addressing harassment.

Another reason distributing fault is a good thing is that it avoids placing the blame on one single individual.  That’s not only a more accurate reflection about how harassment happens; it also avoids one of the (somewhat misguided, in my view) critiques of #MeToo, specifically the claim that relieving harassers of their positions of authority is a cost that is too difficult to bear.  Rebecca Traister (of course!) has written about how #MeToo has led to some rather overblown rhetoric about the metaphorical “deaths” that #MeToo has resulted in.  Some samples:

• On Mark Halperin: “He deserves to have what he did deplored.  But does he deserve to die?  How many times can you kill a guy?”
• On Charlie Rose: “You get accused you’re obliterated.  Charlie Rose ceases to exist.”
• On Matt Damon: He is getting “beaten to death.”
• On Charlie Rose: He was “trampled” in a “toddler’s crusade.”

Would assigning responsibility to an entire board, instead of one powerful man, be better?  It’s hard to say.  But it would be different.

The second reason why corporate law might be a good vehicle for regulating harassment in the workplace is that it is a way of adjusting the decision calculus at the point where victims are often hurt.  Up until #MeToo, it seems, companies assessed the risk of a harassment claim by focusing on the risk of losing the harasser.  Injecting the possibility of corporate shareholder suits premised on a company’s failure to respond properly to a victim’s claims makes them consider risk on the other side of the equation as well.

Corporate law isn’t a panacea, and Dorothy and Daniel’s paper doesn’t make it out to be one.  But it is a potential, partial solution that merits further examination.

@LeahLitman

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