The #MeToo movement has led to profound social revolution in acceptable norms of behavior in the workplace. In its wake, many states enacted legislation mandating sexual harassment awareness training and limiting the use of nondisclosure agreements in sexual harassment cases that legislators believe may have contributed to concealment of recently publicized egregious and serial examples of bad workplace conduct. However, the prevailing view has been that there is no underlying substantive change to the legal principles that govern claims of sexual harassment and that, with the right policies and a robust internal complaints process, companies can continue insulating themselves against liability where an employee fails to make a complaint under the employer’s internal procedures. This article examines how the #MeToo movement may have upended this conventional wisdom.

Back to Basics: Employer Affirmative Defenses to Claims of Sexual Harassment

Under Title VII, an employer is vicariously liable for sexual harassment by a supervisor that results in a tangible job action, such as demotion or termination. However, if a supervisor causes a hostile work environment without a tangible job action, the employer has a defense against liability if it can show that: it “exercised reasonable care to avoid harassment and to eliminate it when it might occur,” and that the employee “unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to avoid harm otherwise,” see Faragher v. City of Boca Raton, 524 U.S. 775, 805 (1998) and Burlington Industries v. Ellerth, 524 U.S. 742, 745 (1998). This affirmative defense, emanating from twin decisions of the U.S. Supreme Court, is often referred to as the Faragher–Ellerth defense.