Mcle Self-study: a Social Movement: #metoo's Impact on Legislation

• Jurisdiction: California,United States
• Author: Beth W. Mora
• Citation: Vol. 37 No. 4
• Publication year: 2023

MCLE SELF-STUDY: A SOCIAL MOVEMENT: #METOO'S IMPACT ON LEGISLATION

AUTHOR^*

Beth W. Mora

"Me Too" was coined in 2006 by American activist Tarana Burke as part of an effort to bring solidarity among survivors of harassment and assault.¹ Just over ten years later, on October 15, 2017, in the wake of the harassment and assault accusations against Hollywood producer Harvey Weinstein, actress and activist Alyssa Milano posted a tweet, "If you've been sexually harassed or assaulted write 'me too' as a reply to this tweet." Within 24 hours, this tweet generated over 12 million responses on multiple social media platforms.² In the months that followed, more than four out of ten members of Congress (44%) mentioned sexual misconduct in at least one post on their official Facebook accounts.³ Even a full year after the Milano tweet, messages denoted by "#MeToo" continued to be used on social media 55,000 a day.⁴ Like other social movements, #MeToo is inextricably linked to its hashtags, where #MeToo moves seamlessly between online and offline spaces, reinforcing one another.⁵

More than five years after Milano's October 2017 tweet, it is clear that the #MeToo movement sparked a societal reckoning by the millions of women who

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voiced their sexual harassment and assault experiences, including in the workspace, placing a spotlight on gender inequities and power imbalances.

This article discusses the many ways this social reckoning resulted in real-world legislative changes, primarily in California.

#METOO'S IMPACT ON LEGISLATION NATIONWIDE

A nationwide study by the National Women's Law Center, published in October 2022, five years after #MeToo went viral, confirms that more than 70 bills specific to workplace anti-harassment reforms have passed since, many with bipartisan support in both conservative and progressive states.⁶ Prior to #MeToo, only three states had passed anti-harassment reforms. In contrast, after #MeToo, 10 states in 2018, 11 states in 2019, 8 states in 2020, and 11 states and D.C. in 2022 passed workplace anti-harassment legislation.⁷ The most common legislative workplace reforms directly related to #MeToo included limits or prohibitions on Non-Disclosure Agreements (NDAs) (16 states), requiring anti-harassment training (13 states and D.C.), expansion of workplace harassment protections (11 states), and extension of statute of limitations (9 states).⁸

A study evaluating the broader impact of #MeToo, which included gender equity, family-friendly policies, pregnancy leave/accommodation and other occupation specific legislation introduced in the United States, found that 3,000 state and federal bills were introduced between 2016 and 2022. There was limited success federally. With the help of Gretchen Carlson,⁹ bipartisan bills were passed: The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 and the Speak Out Act.¹⁰ Between 2017 and 2021, states passed 286 #MeToo-related bills, out of the 2,324 that had been introduced. In the initial years, late 2017 to early 2018, most of the #MeToo-inspired state legislation focused on anti-harassment training, NDAs, and accountability for government officials.¹¹

By 2019, reforms among the states began to address a broader range of women's rights issues. This was consistent with the developing social discussions stemming from, or supported by the #MeToo movement, concerning gender equality and power imbalance in the workplace. These reforms derived from the belief that "multiple interventions can make a lasting difference, particularly when they reduce gendered power dynamics that make harassment more likely."¹² The broader range of #MeToo prompted broader reforms, nationwide, including those in pay equity, family care, sick and pregnancy leave. In particular, these reforms sought to improve workers' rights for low-wage and otherwise disadvantaged employees.

#METOO'S IMPACT ON LEGISLATION IN CALIFORNIA

Legislative reform since #MeToo went viral across the nation. But a majority of the actual reforms were made in coastal states. California and New York were leaders in passing workplace anti-harassment reforms; both states have passed such reforms every year since #MeToo.¹³ California also continues to lead the way in passing gender equity-related legislation, which similarly stemmed from the #MeToo discussion and/or found support in the movement.

During the 2018 legislative year, more than two dozen bills motivated by #MeToo were introduced. Of these, 12 became law in California.¹⁴ These included: expanding sexual harassment prevention training (A.B. 1825 and S.B. 1343, Cal. Gov't Code § 12950); confidentiality limits for releases and NDAs (S.B. 820 and S.B. 1300, Cal. Civil Proc. Code § 1001 and Cal. Gov't. Code 12923), barring prohibitions of limitations on right to testify regarding alleged criminal conduct or sexual harassment (A.B. 3109, Cal. Code of Civ. Proc. § 1660.11), expanding relationships subject to sexual harassment claims to include lobbyists, elected officials, directors/producers and investors (S.B. 224, Cal. Civil Code § 51.9), and creating the Workplace Misconduct Unit in the Legislature to receive complaints (S.B. 867, Cal. Gov't Code § 10249.)¹⁵ Gender equity reforms also occurred in 2018, including expansion of workplace lactation accommodations (A.B. 1976, Cal. Lab. Code § 1031), and a ban on prior salary history inquiries (A.B. 2282, Cal. Lab. Code § 432.3).

During the 2019 legislative year, California passed 10 laws inspired by #MeToo including: extending the statute of limitations to file an administrative charge with the

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Department of Fair Employment and Housing (now California Civils Rights Department - CRD) from one to three years (A.B. 9, Cal. Gov't. Code § 12965); prohibiting no-rehire provisions within settlement agreements involving an employment dispute (A.B. 749, Cal. Code of Civ. Proc. § 1002.5), and requiring implicit bias training for licensed professions, including judges (A.B. 241 and A.B. 242, Cal. Bus. and Prof. Code §§ 2736.5 and 6070.5, and Cal. Gov't. Code § 68088.)¹⁶ Gender equity reforms continued in 2019, including expanding workplace lactation accommodations (S.B. 142, Cal. Lab. Code § 1033 and Cal. Lab. Code § 1034). Similar to the previous year, several #MeToo inspired bills introduced in 2019 did not become law.

Even during the COVID crisis, within the 2020 legislative year, California continued to enact #MeToo-related gender equity reforms. These reforms included annual pay data reporting (S.B. 973, Cal. Gov't. Code § 12999) and expansion of the California Family Rights Act (CFRA) as to the number of covered employees and definition of "family care and medical leave" (S.B. 1383, Cal. Gov't Code § 12945.2).¹⁷

Although there was still a significant focus on COVID-related policy during the 2021 legislative year, California continued to enact #MeToo inspired and related reforms, including the seminal Silenced No More Act (S.B. 331, Cal. Code of Civ. Proc. § 1001, and Cal. Gov't Code § 12964.5). Additional bills concerning specifically sexual harassment in the military (S.B. 352, Military and Veterans Code §§ 58, 392, 475) further clarified the previous year's gender equity reform with the expansion of CFRA (A.B. 1033, Cal. Gov't Code §§ 12945.2 and 12945.21).¹⁸

During the 2022 legislative year, nearly five...