Fighting for Survivors, Four Years After #MeToo
Four years ago, #MeToo went viral, lifting up the work of survivor-advocate Tarana Burke. At that time, actors came forward revealing repeated sexual assaults by Harvey Weinstein. Alianza Nacional de Campesinas reached out to the actors with a letter of support that discussed the prevalence of sexual harassment in farm work. These events led to the foundation of the TIME’S UP Legal Defense Fund, which is housed at and administered by the National Women’s Law Center Fund. The TIME’S UP Legal Defense Fund connects workers facing sex harassment with attorneys and funds legal fees, costs, and media assistance for selected cases of workplace sex harassment and related retaliation.
One of the factors that the Fund considers when choosing which cases to support is whether the case will help level the playing field of workplace sex harassment law, which is heavily tilted in favor of employers and harassers.
Four years later, here are some of the legal changes we have seen from the cases we have funded.
Expansion of state anti-discrimination laws to cover LGBTQ discrimination.
Before 2020, prohibition on sex discrimination in federal law and in many states did not include discrimination based on sexual orientation or gender identity. LGBTQ workers’ employment was protected in some states, but not in others. In 2020, in Bostock v. Clayton County, the Supreme Court ruled that sex discrimination included discrimination based on sexual orientation and gender identity.
Before the Supreme Court’s ruling, Christie Nafziger sued her employer, a church, for sex harassment based on her perceived sexual orientation. She claimed that once the church thought she was a lesbian, she was harassed and treated differently. She sued under federal and Florida law; neither at the time of her lawsuit covered discrimination based on sexual orientation and gender identity. After the Bostock, the court in Nafziger’s case became one of the first to found that LGBTQ discrimination could be a claim under Florida state law. The court reasoned that “sex” in Florida state law had the same meaning as “sex” in federal law, thus it had to include LGBTQ discrimination. This seems obvious—similar statutes, the same word—but it means that millions of workers who did not have protection under state law now do.
Rejection of qualified immunity for police officers who arrested survivor for “false statements”
Qualified immunity is a legal doctrine that protects government officials from being sued for how they do their jobs unless their actions violate a clearly established legal rule. In practice, qualified immunity gives police officers and other government officials a pass unless there was a case exactly like the one they faced and established wrongdoing. It is an incredibly difficult doctrine to defeat.
Nicole Chase was a server in a restaurant in Connecticut. Her supervisor sexually assaulted her, and she went to the police. The first time she went, she did not give the full details of the assault, but subsequently gave a more complete statement. The police officers interviewed the supervisor, who denied the assault, and–in a taped conversation–suggested that the supervisor change his story and say the assault happened but was consensual. The supervisor complied. The police officers also suggested they would like to play golf at a club where the supervisor’s attorney was a member. Instead of arresting the supervisor, the police arrested Chase for false statements to the police.
Chase sued her employer, the officers, and the police department. The officers and the department argued for qualified immunity, which the court denied. The police officers appealed, which was also rejected, and Chase’s case against the officers is going forward. NWLC filed an amicus brief for the appeal highlighting that gender bias by law enforcement leads to failures in sexual assault investigations and compounds trauma for survivors.
Protecting Survivors who Speak to the Press
An enduring legacy of the #MeToo movement is that it helped so many workers come forward and speak out about sex harassment. Unfortunately, some workers found that when they did speak up, their harassers used the legal system against them and sued for defamation.
Pam Lopez is a lobbyist. In 2017, she reported to a California state legislative committee that a member of the California state assembly sexually assaulted her. She spoke to the press after talking to the committee and described what she told the committee. The assembly member, Matt Dabaneh, sued her for defamation for speaking to the committee and the press. The first court to consider the case found that Lopez’s statements to the committee were protected, but that her statements to the press were not. Last month, the court reviewing the case found all of Lopez’s statements protected under California law and dismissed the case.
These are only a handful of advances and wins towards gender justice we’ve witnessed since #MeToo went viral four years ago. Since launching the Times Up Legal Defense Fund, we’ve been able to fund over 300 cases. Ninety percent of completed cases that we funded resulted in helping the worker. On the anniversary of #MeToo, we’re celebrating Christie Nafziger, Nicole Chase, Pam Lopez, and all the other workers who are fighting for fair and equitable workplace.