#MeToo Reforms Fail to Protect Women of Color on the Job and in Court
By Jamillah Bowman Williams, Denver Ellison, and Keniece Gray
The #MeToo movement took off in 2017 after Hollywood actresses came forward with sexual-harassment and assault allegations against prominent producer Harvey Weinstein. Although the phrase “Me Too” was coined in 2006 by a Black woman, Tarana Burke, the experiences of Black women and other women of color have been mostly absent from the movement. Instead, #MeToo has primarily centered the experiences of affluent White women. This is troublesome considering women of color experience sexual harassment at higher rates than white women, and their experiences differ due to the compounding effects of racism and sexism.
Thirty years have passed since Kimberlé Crenshaw critiqued anti-discrimination law for its failure to recognize intersectionality, the compounding nature of race and gender subordination. Today, current law and policy continue to fall short in recognizing and remedying the unique harms women of color face in the workplace. Anecdotes highlighting the workplace harassment women of color face are plentiful; yet, these stories receive less media coverage. This reflects society’s tendency to not fully empathize with women of color. As a result, the law and policy responses following the #MeToo movement prioritize the face of the movement, which is primarily elite, White women. This results in policy change that fails to address the primary concerns faced by women of color. This article highlights how both law and society fail to protect women of color from sexual harassment in the workplace and provides insights into what anti-racist harassment solutions should look like.
Racism Shapes Experiences of Harassment for Women of Color
Workplace harassment includes unwanted kissing and groping, sending sexually explicit photos, propositions for sex, and discussing sexual fantasies. With an increase in remote work, women may be told to look sexy while on video conferences and may face more text-based harassment on platforms like Slack, Microsoft Teams, and Zoom.
Notably, women of color are more likely to be targets of workplace harassment than White women. Data from the Equal Employment Opportunity Commission (EEOC) reflects that 50–70% of women face workplace harassment, and 56% of charges are filed by women of color. Furthermore, while harassment claims filed by White women dropped by 30% over the past 20 years, harassment claims by Black women have stayed the same.
Social stereotypes exacerbate the issue of harassment for women of color, who are often targeted by their harassers because of racialized stereotypes regarding their sexuality. For example, Black women are subject to the Jezebel stereotype, depicting them as highly sexual, seductive and promiscuous, inducing comments and advances about them being “thick,” “chocolate,” or having “juicy lips.” Asian women are fetishized as submissive, exotic, and aiming to please their partners. Latina women are stereotyped as highly sexual and having “spicy” personalities to go along with that sexuality. Although slightly different per racial group, these stereotypes all have one thing in common: their racialized and sexual nature.
Structural disadvantages also plague women of color, particularly Black women due to a history of oppression dating back to chattel slavery. During this time, White women owned slaves, were elevated in status over Black women and thus became their adversaries rather than allies with shared experiences as women. This history of compounding race and gender subordination continues as we see Black women overrepresented in precarious and low paying jobs where harassment is rampant.
These stereotypes and structural disadvantages make women of color the target of microaggressions and explicit expressions that they are dispensable, incompetent, and overly aggressive if they dare to speak up to defend themselves in toxic environments. These views stem from the long-standing narrative that women of color are inherently “lesser” than their White counterparts and should be subservient and grateful for their jobs. Such perspectives also leave women of color less likely to be taken seriously, or believed in the first place when they do report sexual harassment.
Legal Hurdles Make Post-#MeToo Law and Policy Ineffective
Women of color are consistently denied their day in court because of issues of exclusion and forced arbitration. Existing federal anti-discrimination law does not extend protection to domestic workers, farmworkers, temporary workers, gig workers, interns, and those working for small businesses. Women of color are disproportionately represented in those jobs, and it is not a historical accident these workers are denied legal protection.
Women of color are also frequently denied their day in court because of forced arbitration clauses employers require at time of hiring. Mandatory arbitration clauses are more prevalent in low-wage industries, which are disproportionately composed of women workers. Approximately 60% of women of color are subject to these agreements, which allow employers to handle sexual harassment allegations in a private setting, with an arbitrator paid by the employer, rather than a judge in a court of law. There is no public record regarding the process or outcomes of arbitration. This secrecy limits transparency about the prevalence and type of sexual harassment experienced by women of color and prevents accountability. Arbitrator bias is a major concern when 88% are white and 77% are male. Although the newly passed Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act is a step in the right direction, it will likely leave serious gaps for women of color who also experience wage theft, racial harassment, and other types of discrimination, if courts say these fall outside the scope of new law.
Even when harassment claims by women of color do make it to court, judges are often hostile to claims based on multiple identities and dissect the claims in a way that prevents justice. For example, the law requires the alleged harassing conduct to be “severe or pervasive” for a claim to prevail in court. Women of color experiencing harassment that is both race and gender based are often required to separate these claims. Once separated into distinct “race” and “sex” harassment claims, judges minimize the experiences and say each is weak when viewed in isolation. This approach ignores how these identities are intertwined and gets many intersectional claims dismissed and justice is denied.
Making Sexual Harassment Law and Policy Anti-Racist
While the arbitration bill discussed above is a step in the right direction, there is more work to be done. It is imperative that lawmakers develop and pass legislation with anti-racist perspectives for sexual harassment policies. Traditionally, Congress has been disproportionately composed of White male lawmakers who are persuaded by gender and harassment issues when they envision their wives and daughters. Unfortunately, their policy support wanes once protection against racial disadvantages is added to the picture. Thus, advocates must continue to raise awareness of this issue and demand sexual harassment policy that acknowledges the role racism plays in exacerbating harms for women of color.
It is also important that women of color are represented in leadership positions across various sectors, including the corporate world, the legislature, and the judiciary. With more women of color in leadership positions, they have the potential to shift workplace culture for all women. They can help to effectuate change by bringing their understanding of such social issues and new solutions to businesses, legislatures, and courts.
Progress in the federal judiciary and Supreme Court has already begun, with President Biden nominating more than 20 women of color to federal courts across the country in the past year. Judge Ketanji Brown Jackson was Biden’s pick for the Supreme Court, and since has been confirmed by the Senate. As a Black woman, she is better situated to understand the compounding effects of race and gendered discrimination and harassment for Black women. Studies show that a judge’s identity shapes their decisions for race and sex discrimination claims, and that judges of color also influence their white colleagues sitting in the same court.
These steps of developing anti-racist legislation and increasing the presence of women of color in leadership roles are crucial in allowing for more expansive views of what sexual harassment looks like. In doing so, the leaders and their colleagues can develop improved legal and policy solutions that take intersectional experiences into account, thereby bringing greater justice to women of color.
Professor Jamillah Bowman Williams received her M.A. in Higher Education from the University of Michigan, her J.D. from Stanford Law School and her Ph.D. in Sociology from Stanford. Her research focuses on contemporary bias (implicit, explicit, and structural) and the capacity of law to promote social change. More specifically, she uses qualitative and quantitative methods to examine the impact of antidiscrimination law on the individuals it was intended to protect.
Keniece Gray is a first-generation law student aspiring to build a cross-sector career using the law to address systemic issues and remediating inequity in academia and the workforce. Her primary interests are labor and employment law, education law, intellectual property law, corporate governance and government relations.
Denver Ellison is a third-year law student at Georgetown University Law Center and 2022 JD Candidate. She is a member of the Georgetown Journal of Law and Modern Critical Race Perspectives, where she served as Reactions Editor from 2021–2022. Her primary interests are employment law, intellectual property law and data privacy.
