The Times They Are A-Changin’?: #MeToo and Our Movement Forward

Terry Morehead Dworkin* & Cindy A. Schipani** August, 2022

Abstract

Social movements like #MeToo have gained public traction like never before. In this Article, we place those developments within their historical context and chart a path forward. First, we provide a history of the prior unsuccessful attempts to ratify an Equal Rights Amendment, and we discuss that effort’s current legal status and prospects. Then, we briefly review the history of sexual harassment law. Having outlined this historical context, we move to contemporary developments. We describe actions that state legislatures and local municipalities have taken to address the concerns raised by the #MeToo movement. Finally, we discuss how inflection points can lead to change and we make concrete reform suggestions.

Introduction

On the first anniversary of their report on Harvey Weinstein sexually abusing women, New York Times reporters Jodi Kantor and Megan Twohey reflected: “All of us have been told that the key to gender equality is looking to the future. . . . The past year has shown that this wisdom is incomplete. To move forward, we have to excavate the past.”¹ The #MeToo movement, started by activist Tarana Burke over a decade ago² and brought to headlines by the New York Times report, seems to have rocked our nation to its core—or at least grabbed its attention. By upending the careers of high-profile, abusive men, the movement has placed a spotlight on wrongs rampant in our society.³ #MeToo crusaders utilize social media, press coverage, and their celebrity status to provide a voice to previously silenced survivors⁴ across nearly every industry.⁵ Feminist legal scholar and Michigan Law Professor Catharine MacKinnon believes that the #MeToo movement exposed “the disbelief and trivializing dehumanization of [sexual harassment] victims.”⁶ We cannot end sexual harassment without changing the norms of ignoring harassing behavior and minimizing the experiences of those who have survived sexual misconduct.⁷

The issue of pervasive sexual harassment has been the focus of legal, academic, and feminist scholars and activists for decades. For example, when Yale Law Professor Vicki Schultz first “reconceptualized” sexual harassment in 1998, she wrote that her work “ha[d] been a long time in the making.”⁸ And in 2003, Yale Law Professor Reva Siegel remarked that discussions of sexual harassment have “continue[d] without sign of diminishing, in the workplace and the popular press, as well as in . . . academic fora.”⁹ This Article traces the history of that discussion through the stalled constitutional amendment to provide equal rights for women (the Equal Rights Amendment or ERA). In addition, it follows the decades-long movement to identify, define, sanction, and prevent sexual harassment in the workplace, as well as the courts’ role in these developments. The legal doctrine that reflects this story is the foundation upon which the #MeToo movement took force.¹⁰ As Professor MacKinnon notes, “[s]exual harassment law—the first to conceive sexual violation in inequality terms—created the preconditions for this moment.”¹¹ In light of the #MeToo movement, it is time to evaluate the failures and successes of sexual harassment laws. By accounting for this history, we will see how far we have come, how much further we have yet to go, and what impact (if any) the #MeToo movement has had on American corporate culture.

In the wake of #MeToo, journalists have devoted significant efforts to investigating the influence of this movement on society’s perception of sexual harassment. Jodi Kantor and Megan Twohey documented the cultural shift brought about by the Harvey Weinstein investigations.¹² Although some states engaged in legislative reform, Kantor and Twohey do not believe the law (as a whole) reflects society’s “shifts in social attitudes.”¹³ Perceptions of sexual harassment vary “widely along partisan lines,”¹⁴ and these political views challenge the durability and significance of shifting social attitudes. In 1991, Anita Hill testified before the Senate Judiciary Committee that then-Supreme Court nominee Clarence Thomas sexually harassed her.¹⁵ She was subjected to an invasive inquisition and faced so much public opposition that she resigned from a tenured position at the University of Oklahoma.¹⁶ By contrast, in November 2017, Senate Majority Leader Mitch McConnell stood in defense of four women who came forward against then-Senatorial candidate Roy Moore with allegations of sexual misconduct.¹⁷ McConnell was the highest-profile Republican at the time to demand that Moore step down from the race.¹⁸ It appeared that change was on the horizon. Yet only one year later, then-Supreme Court nominee Brett Kavanaugh was confirmed despite testimony from Dr. Christine Blasey Ford that Kavanaugh sexually assaulted her.¹⁹ Are we back where we started?

Achieving sustainable reform in societal gender values may require further changes in sexual discrimination law because of the “intersubjective . . . and symbolic qualities of modern law.”²⁰ This Article’s discussion of these issues proceeds in four parts. Part I provides background on the so-far unsuccessful attempts to amend the United States Constitution to grant equal rights to women. Part II follows with a brief history of sexual harassment law. Part III continues by discussing efforts by state legislatures and local municipalities to shed light on sexual discrimination by prohibiting nondisclosure agreements in settlements of claims for workplace sexual misconduct, among other laws. And in Part IV, the Article discusses historical inflection points prompting societal change, finding that 2020–2021 may have been one of those points.

I. The Equal Rights Amendment

The Equal Rights Amendment is a proposed Constitutional amendment to uphold equal rights under the law regardless of sex.²¹ The first attempt to incorporate an Equal Rights Amendment into the United States Constitution followed naturally from the enactment of the Nineteenth Amendment. This effort was spearheaded by the National Women’s Party, which formed in June 1916 with the goal of securing a woman’s right to vote.²² After the Nineteenth Amendment became law on August 18, 1920, the National Women’s Party shifted its focus to the broader goal of women’s equality.²³ With its support, the Equal Rights Amendment (ERA) was first introduced as a Congressional bill in December 1923.²⁴ The bill was unsuccessful in part because women were divided along socioeconomic lines.²⁵ Some opponents of the ERA, primarily working women, feared losing labor protections unique to women.²⁶ Other opponents of the ERA feared losing the special status of women that allowed for the right of wives to be protected by their husbands and for the “traditional American family.”²⁷

With the rise of the women’s rights movement in the 1960s, there was enough Congressional support in the 1970s to pass the ERA: it was approved by the House in 1971 and the Senate followed suit in 1972.²⁸ Representative Martha W. Griffiths and Senator Birch Bayh were the ERA’s lead proponents in the House and Senate respectively.²⁹ For the ERA to become law, the proposed amendment next needed approval from the legislatures of at least three-quarters of the states, or thirty-eight states.³⁰ Supporters were initially optimistic that this threshold would be met: although the ERA had a seven-year ratification deadline (1979), Senator Bayh believed it would take only two years to obtain sufficient state ratification.³¹ Such optimism would prove unwarranted. Despite the deadline’s extension to 1982, only thirty-five states ratified the ERA in time³²—five of which subsequently attempted to revoke their ratification.³³ Three additional states recently voted in favor of the ERA—Nevada (2017), Illinois (2018), and Virginia (2020).³⁴ Although thirty-eight states have now ratified the ERA, the expired deadline and five revocations make the legal effect of these recent state ratifications unclear.

Congress could likely act to change the ERA’s ratification deadline even now: unlike the Eighteenth, Twentieth, Twenty-First, and Twenty-Second Amendments, the ERA’s text does not include an express ratification deadline.³⁵ And in Coleman v. Miller, the Supreme Court held that Congress, not the courts, had the final authority on whether a ratification deadline could be extended.³⁶ Coleman also held that the validity of a state revocation is a nonjusticiable political question.³⁷ Thus, the legal effect of revocation is theoretically up to Congress unless Coleman is overruled.³⁸ But as Professor Gerard Magliocca has pointed out, Congress would be adopting an inconsistent position if it simultaneously extended an expired deadline by four decades and maintained that States’ previous decisions are irrevocable.³⁹ It is ultimately unlikely, therefore, that the three recent ratifications are sufficient to turn the ERA into law. The #MeToo movement’s revival of interest in the ERA, though likely without legal consequence, may symbolize the increased value placed on women in American society and give further power to female voices.

A. Judicial Action vs. Amendment

Legal academics dispute whether the judiciary or an amendment would better address the issue of women’s equality.⁴⁰ A 1971 Yale Law Journal article, written by Yale Professor Thomas Emerson and three students, addressed this question, finding that the ERA would better address the issue.⁴¹ The Emerson article was praised by Representative Griffiths and Senator Bayh and “referred to with approval in the Congressional Reports.”⁴² The article weighed judicial versus legislative options for improving women’s rights, ultimately favoring the ERA because it would provide absolute equality, while the judiciary would rely on discriminatory precedent.⁴³

Emerson believed that no meaningful change to women’s rights could occur absent an uncompromising amendment.⁴⁴ Several proposed revisions which would have limited the ERA’s scope ultimately failed, including amendments with exceptions for “physiological or functional differences”⁴⁵ or for the draft,⁴⁶ and an amendment that would have the ERA’s anti-discrimination provision parallel the Fourteenth Amendment.⁴⁷ Emerson argued that absolute language⁴⁸ was necessary because: 1) many women do not fit the female stereotype assumed by law, 2) sex discrimination is interrelated across contexts (e.g., the benefits of equal access to public education are limited if there is discrimination in public employment), and 3) one group will dominate in a dual system of rights and responsibilities (as with race).⁴⁹ Considering the ERA’s broad scope but limited Congressional analysis, opponents worried about the potential unintended consequences resulting from an absolute amendment.⁵⁰ Harvard Law Professor Paul Freund compared the choice between the ERA and alternative legislative or judicial solutions to a “choice . . . between a single broad-spectrum drug with uncertain and unwanted side-effects and a selection of specific pills for specific ills.”⁵¹ Opponents of the ERA were also concerned that a broad amendment would generate litigation,⁵² and any unanticipated judicial results would be more difficult to rectify for an amendment than for a statute.⁵³

Emerson also doubted that Equal Protection jurisprudence would expand to protect against classifications based on sex.⁵⁴ Early Supreme Court cases indicated that sex-based classifications were permissible because women had a “separate place” in society.⁵⁵ In 1872, Bradwell v. Illinois upheld an exclusion of women from the legal profession.⁵⁶ In his concurring opinion, Justice Bradley expressed that “[t]he natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life.”⁵⁷ In 1908, the Court agreed in Muller v. Oregon that a woman “is properly placed in a class by herself” in upholding a state law setting a maximum number of hours that women could work.⁵⁸ Due to differences in physical strength and a fear of exploitation by men,⁵⁹ the Court was willing to depart from the general freedom from work hour limitations (based on the freedom of contract) which it had decided in Lochner v. New York in 1905.⁶⁰ Later cases reinforced the notion of women’s separate place in society. In 1961, Hoyt v. Florida upheld a Florida statute giving women the option to opt into the jury pool as a reasonable classification because the “woman is still regarded as the center of home and family life.”⁶¹ And in 1971, the Court affirmed the district court’s judgment on a challenge against the single sex status of two South Carolina state universities.⁶² The district court entered judgment for the defendants on the grounds that this sex classification had a rational justification under the Equal Protection Clause.⁶³

More conceptually, both sides of the ERA debate contested the similarities and differences between sex- and race-based classifications.⁶⁴ Proponents of the ERA pointed to the similarities, arguing that sexbased classifications, like race-based classifications, should be subject to strict scrutiny review under the Equal Protection Clause.⁶⁵ Classifications based on both race and sex create large groups that are beyond an individual’s control, are highly visible, and are subject to stereotypes.⁶⁶ A relevant difference cited by opponents was that, unlike racial minorities, women comprised a majority of the population and were thus capable of protecting their interests by voting.⁶⁷ Additionally, Professor Freund distinguished classifications based on sex and race by using a sports analogy: “To hold separate Olympic competitions for whites and blacks would be deeply repugnant to our sensibilities. Do we—should we—feel the same repugnance, that same sense of degradation, at the separate competitions for men and women?”⁶⁸

Although widespread support initially existed for a judicial solution, dissatisfaction with the Nixon administration increased support for an ERA.⁶⁹ During the 1960s, the Presidential Commission on the Status of Women recommended working toward expanding the Fourteenth Amendment’s coverage.⁷⁰ As opponents of the ERA argued, the scope of the Equal Protection Clause had already expanded to new classifications in recent years.⁷¹ This approach changed as the women’s rights movement grew frustrated with the Nixon administration’s failure to follow through on its promises.⁷² For example, the administration refused to support a bill to expand equal pay.⁷³ Disappointment with President Nixon’s inactivity and perceived changes in the administration’s dedication to women’s rights resulted in a swell of support for the ERA among women’s rights advocates.⁷⁴

B. The Debate over Process

Opponents of the ERA attacked Congress’s approval process, claiming that it failed to allow for sufficient deliberation.⁷⁵ The House had no committee hearings on the ERA and only one hour of floor debate preceded the vote.⁷⁶ Moreover, the House’s Judiciary Committee, then headed by a known opponent of the ERA, was circumvented by a discharge petition.⁷⁷ Commenting on this rapid progress, Senator Ervin remarked that he “doubt[ed] if anybody [in the House] except the chief proponent of the bill gave more than 15 minutes’ study . . . before they voted” and noted feeling unprepared for the Senate’s deliberations.⁷⁸ The lack of deliberation was especially egregious, opponents argued, because the ERA’s equality of rights language raised significant questions about its legal implications.⁷⁹ How would laws that classified based on sex be equalized (e.g., would pro-female labor protections be overturned or also provided to men)?⁸⁰ How would the ERA interact with other constitutional rights (e.g., the right to privacy)?⁸¹ In addition, the ERA’s passage could affect broad swaths of existing state and federal law.⁸² A 1972 study by Maryland’s Attorney General found that the ERA would impact 227 “clauses and concepts” in Maryland’s legal codes,⁸³ and there was no reason to think Maryland was exceptional in this regard.⁸⁴ Such “farreaching and inflexible” changes, opponents argued, “ought surely not be brought about as the half-hidden implication of a constitutional motto.”⁸⁵

C. The Amendment in Action

Proponents and opponents of the ERA also debated its potential consequences.⁸⁶ In particular, proponents focused on the economics of marriage, including a husband’s support obligations, a wife’s property rights, and a couple’s ability to receive fair financing.⁸⁷ In all states at the time, “husbands [were] primarily liable for the support of their wives and children.”⁸⁸ Proponents of the ERA argued that the amendment would ease this financial burden on men and improve the enforcement of support laws.⁸⁹ On the other hand, Senator Sam Ervin of North Carolina asserted that the ERA would destroy any right to support, because for every right, there must also be a duty.⁹⁰ By equating the rights of women and men, their legal responsibilities to one another in family law would become nonexistent.⁹¹ Proponents of the ERA also contended that the amendment would overturn state laws requiring a married woman to obtain her husband’s consent before selling property.⁹² Moreover, in community property states, married women may hold an equal share in the ownership of property acquired during marriage; yet in all these states, “except [for] Texas and Washington, the husband has the power of management and control over the community property.”⁹³ The ERA ensures that laws vesting community property management “in the husband alone,” or those favoring husbands based on wage earning, would no longer be valid.⁹⁴ Lastly, proponents of the ERA pointed to the difficulties women face in getting loans from financial institutions.⁹⁵ Despite being financially qualified, some single women alleged they were denied loans without a male co-signer.⁹⁶ Additionally, a married woman’s income was often not counted, or even discounted, in calculating mortgage loan eligibility.⁹⁷ Bankers argued this practice was necessary to protect against the risk of a married woman quitting work to have a baby.⁹⁸

Consequences of the ERA that opponents hoped to avoid included women’s inclusion in the draft, elimination of female-specific labor protections, and invalidation of statutes banning same-sex marriage.⁹⁹ Although Congress could have required women to register for the draft before the ERA was proposed, the amendment would have made registration compulsory.¹⁰⁰ Senator Ervin suggested an amendment to the ERA excluding women from the draft, but this proposal was soundly defeated.¹⁰¹ Resistance to this consequence of the ERA was expressed most simply by California Senate Leader James Mills, who said: “Anyone who tries to tell me to vote for a measure that would send my two small daughters off to war isn’t going to get anywhere.”¹⁰² On the other hand, Representative Griffiths believed that the ERA would help eliminate the draft entirely.¹⁰³ Other proponents of the ERA emphasized the benefits of military service¹⁰⁴ and pointed out that women’s exclusion from the draft hurt their social status.¹⁰⁵

Some labor unions, such as the American Federation of Labor and Congress of Industrial Organizations, fought against the ERA because they believed the amendment would invalidate labor laws benefitting women.¹⁰⁶ These labor laws preserve women’s minimum wages,¹⁰⁷ enforce maximum hour requirements, and limit the physical strenuousness of women’s work.¹⁰⁸ As child-bearers, women arguably needed legal protection from working too much or too hard.¹⁰⁹ Additionally, some individuals worried that by supporting women joining the workforce, the ERA would strain the relationship between mothers and their children.¹¹⁰

Lastly, state statutes banning same-sex marriage could have been invalidated under the ERA as a sex-based classification.¹¹¹ Senator Bayh rejected this interpretation as long as marriage licenses were denied to both male-male and female-female couples.¹¹² But Professor Freund pointed out that Bayh’s reasoning ran counter to the invalidation of antimiscegenation statutes banning interracial marriages under the Fourteenth Amendment, as held in Loving v. Virginia, which impacted all races equally.¹¹³ Although Emerson’s article suggested that an ERA should require strict sex equality, it also mentions an exception for “particular attributes of individuals,” even if they are unique to one sex.¹¹⁴ Therefore, statutes banning same-sex marriage could have been defended on the grounds that only different-sex couples can procreate.¹¹⁵ However, supporters of same-sex marriage could have responded that Emerson intended for such exceptions to strict sex equality to be “closely, directly and narrowly confined to . . . unique physical characteristic[s].”¹¹⁶ There are many different-sex couples who cannot procreate and others who do not want to have children.¹¹⁷ Neither group was prevented from marrying by the statutes banning same-sex marriage at the time, thus these laws were not narrowly confined to procreation.¹¹⁸

D. Prognosis

Having reviewed this historical background, we can return to the question with which we began this Part: what is the significance of the revived interest in the ERA? On the one hand, because of the expired deadline and revocations of ratification by state legislatures, the recent approval of the ERA by multiple states may not have any legal consequence.¹¹⁹ On the other, these ratifications are highly symbolic of a renewed interest in women’s rights¹²⁰ as evidenced by the #MeToo movement. Similarly, the first introduction of an ERA bill in Congress followed the Nineteenth Amendment becoming law, and the women’s rights movement of the 1960s preceded Congressional approval of the ERA in 1972.¹²¹ As with these historical legal shifts, renewed interest in the ERA and the #MeToo movement may signify that we are on the precipice of social change that may provide opportunity for corresponding legal transformations. Furthermore, although Emerson doubted that Equal Protection jurisprudence would expand to protect against sex-based classifications,¹²² the Court began to apply intermediate scrutiny review to these classifications in 1976.¹²³ Intermediate scrutiny asks whether a law is “substantially related” to an “important” government interest.¹²⁴ Although this standard may fall short of the absolute equality envisioned by Emerson,¹²⁵ it provides greater protection than the deferential rational basis standard that applied when Emerson wrote his article. The rational basis standard asks merely whether a law is “rationally related” to a “legitimate” state interest, and it nearly always results in government victory.¹²⁶ Lastly, even if the ERA had become law, some were concerned about how great an effect it would exert on sex discrimination in practice.¹²⁷ Bias by decision-makers within organizations could continue to permeate the workplace and undermine women’s equality.¹²⁸ Although the ERA becoming law would be a powerful symbol, ratification may not directly influence the hearts and minds of our leaders in the public and private sectors.¹²⁹ This reality reveals the limitations of legal solutions to sex-based discrimination. The next Part addresses a brief history of the developing jurisprudence in sexual harassment law.

II. A Brief History of Sexual Harassment Law

Sexual harassment is legally actionable under Title VII of the Civil Rights Act of 1964.¹³⁰ But when the Civil Rights Act was enacted, “the term ‘sexual harassment’ had not yet been coined and there was no secure legal remedy for . . . sexual propositioning, gender baiting, and other forms of sexualized behaviors.”¹³¹ Activists transformed the public and judicial understanding of sexual harassment from a private matter outside of the workplace, to an illegal form of discrimination.¹³² To dismantle the judiciary’s resistance to accepting harassment as a form of discrimination, activists emphasized that both men and women could be harassed.¹³³

In 1979, Professor MacKinnon observed that women were valued in the workplace based on “men’s perceptions of their potential to be sexually harassed.”¹³⁴ In her work, Professor MacKinnon referred to the sociological scholarship of Talcott Parsons, who focused on the stereotypes of working women as office housekeepers, “ego-build[ers],” and “sex objects.”¹³⁵ Professor MacKinnon reflected on one woman’s observation that the best jobs went to the most attractive women: “It was a woman’s fate to either endure the migratory hands of a male boss and earn a decent living, or wish she looked good enough to invite the indignities.”¹³⁶ Based on these observations, Professor MacKinnon theorized that sexual harassment perpetuated women’s inequality and that without change, women would continue to be prevented from professionally advancing.¹³⁷

The Supreme Court identified sexual harassment as a Title VII violation in the 1986 case Meritor Savings Bank v. Vinson.¹³⁸ In a unanimous decision, the Court held that “when a supervisor sexually harasses a subordinate because of the subordinate’s sex, that supervisor ‘discriminate[s]’ on the basis of sex.”¹³⁹ In this case, a bank teller claimed that her company’s vice president had repeatedly touched her in public and raped her.¹⁴⁰ The Court drew on Title VII’s “terms, conditions, or privileges” of employment language to hold that unwelcomed sexual advances that create a hostile or offensive work environment constitute illegal discrimination.¹⁴¹ In its analysis, the Supreme Court compared sexual harassment with racial harassment (which was already illegal) and found both practices to be equally arbitrary barriers to workplace equality.¹⁴²

More specifically, the Court declared that harassment “must be both subjectively and objectively offensive” for it to be illegal, requiring the plaintiff to prove that they were actually offended and that a reasonable person would also be offended by the conduct.¹⁴³ The Court refined this test further in Oncale v. Sundowner Offshore Services, Inc., where it stated: “In same-sex (as in all) harassment cases, that inquiry requires careful consideration of the social context in which the particular behavior occurs and is experienced by its target.”¹⁴⁴

Sexual harassment law is most powerful when it holds an employer vicariously liable for the unlawful acts of its employees.¹⁴⁵ Courts are hesitant, however, to hold the employer liable.¹⁴⁶ If the harasser is a coworker of the survivor, their employer is held liable only when negligence can be proven (i.e., when the employer knew or should have known of the harassment and failed to act).¹⁴⁷ If the harasser supervises the survivor, the employer is strictly liable if the supervisor made a “tangible employment action” against the survivor, such as a demotion, firing, or pay-cut.¹⁴⁸ In the absence of a “tangible employment action,” the employer is presumed liable unless they are able to prove an affirmative defense. Based on Faragher v. City of Boca Raton, courts consider whether the employer took reasonable measures to prevent or redress the harassment and whether the plaintiff “unreasonably failed to take advantage” of these measures.¹⁴⁹

The seemingly subjective and unpredictable results of sexual harassment cases are a product of the ineffectual nature of the laws addressing sexual harassment as well as the many avenues by which employers can avoid liability.¹⁵⁰ The Supreme Court has distinguished civility code, where employers outline “wide swaths” of unacceptable conduct, from harassment law; unlike civility code, harassment law should not apply to “usual workplace interactions.”¹⁵¹ Beyond the distinction between harassment law and civility code, scholars have remarked that the Court’s requirement that actionable hostile environment harassment be “severe or pervasive” has excused egregious conduct.¹⁵² Judith Johnson believes that lower court judges overemphasize this requirement; instead they should focus on whether the work environment in a sexual harassment case is “objectively hostile or abusive.”¹⁵³ Elizabeth Tippett suggests that the stories voiced through the #MeToo movement may provide the context necessary to properly evaluate the severity or pervasiveness of the alleged conduct in harassment cases, as expressed from the survivor’s perspective.¹⁵⁴ This additional context may push judges “toward a more lenient standard” for identifying harassment, focusing on “whether the conduct is objectively hostile or abusive,” and increasing survivors’ compensation.¹⁵⁵

Jurisprudence regarding vicarious liability is also unclear.¹⁵⁶ Employers evade liability by reacting to complaints with very little meaningful action.¹⁵⁷ Survivors are deemed to have declined an employer’s intervention if they fail to report a complaint until months after misconduct occurred.¹⁵⁸ Thus, unsurprisingly, application of the Faragher defense has produced favorable results for employers.¹⁵⁹ For an employer to succeed, they must simply maintain a policy that “constitutes ‘reasonable care,’” “regardless of whether plaintiffs reported harassment.”¹⁶⁰

Courts often dismiss sexual harassment claims due to the broad judicial discretion afforded in these cases,¹⁶¹ reporting requirements,¹⁶² and doubts surrounding women’s credibility.¹⁶³ For these reasons, the effectiveness of legally prohibiting sexual harassment is limited, resulting in pervasive inequality between men and women.¹⁶⁴ Sexual harassment is “built into [our] structural social hierarchies.”¹⁶⁵ It cannot be eradicated without removing broad cultural inequalities embedded elsewhere in the law.¹⁶⁶

The #MeToo movement inspired legislatures to fill the wide gaps left in sexual harassment law which have allowed discrimination to occur across all levels of all industries.¹⁶⁷ Professor MacKinnon notes that #MeToo refuted the assumption that the person who reports sexual abuse is lying.¹⁶⁸ Although “[s]exual harassment law prepared the ground, . . . it is today’s movement that is shifting gender hierarchy’s tectonic plates.”¹⁶⁹ The next Part outlines actions taken by state legislatures regarding sexual harassment in response to the #MeToo movement.

III. State Law Initiatives: Settlement Agreements for
Claims of Sexual Misconduct

The #MeToo movement has not left state legislatures unmoved.¹⁷⁰ Before the COVID-19 pandemic caused widespread governmental shutdowns and delays in 2020, state legislatures reviewed over 200 bills to strengthen protections against workplace harassment.¹⁷¹ Nearly 400 state legislators from 42 states and the District of Columbia took the #20StatesBy2020 Pledge to affirm their commitment to supporting and working with survivors to strengthen protections against sexual harassment in 20 states by 2020.¹⁷²

Initiatives from state legislatures propelled changes to state law until approximately March 2020, when the global COVID-19 pandemic caused many governmental bodies to shut down operations or redistribute resources to emergency relief efforts.¹⁷³ This sudden shift delayed legislation connected with #MeToo efforts in the midst of an economic recession that caused high levels of job loss among women and pushed others out of the workplace due to school shutdowns.¹⁷⁴ During the pandemic, employees were “asked to do so much more for so much less.”¹⁷⁵ Additionally, sexual harassment increased throughout the pandemic, especially in the food service industry, where tips and pay decreased.¹⁷⁶

The legacy of reforms enacted between 2017 and 2019, however, generated changes that proved influential in 2020; for example, California¹⁷⁷ and Illinois¹⁷⁸ instituted changes, such as new laws extending deadlines for filing sexual harassment claims, aiming to prevent sexual harassment, and voiding “no rehire” provisions in settlement agreements. These laws include California’s SHARE Act,¹⁷⁹ which extends the deadline for filing workplace harassment-related retaliation claims from one year to up to three years.¹⁸⁰ California’s deadline is six times longer than the federal standard, and this extension may influence other states and federal regulations.¹⁸¹

One of the most pernicious gaps left in sexual harassment law—a gap these recent regulations have begun to address¹⁸²—is harassers’ ability to coerce survivors into silence through the use of confidentiality provisions in settlements.¹⁸³ Also known as non-disclosure agreements (NDAs), these provisions ensure that claimants promise secrecy in return for a settlement payment.¹⁸⁴ These agreements initially silenced survivors in the “sexual-abuse scandals [that have] bubbl[ed] out of Hollywood, Capitol Hill, and corporate boardrooms” in recent years.¹⁸⁵ That is not to say that legal settlements of sexual harassment claims are always malicious. Settlements are generally quicker, less expensive, and less burdensome on the judicial system;¹⁸⁶ they provide certainty for both parties, and they may be less emotionally taxing for the claimant than drawn-out litigation.¹⁸⁷ Moreover, some claimants may prefer NDAs to avoid the stigma associated with bringing a sexual assault claim.¹⁸⁸ NDAs also provide claimants with leverage against harassers in settlement negotiations;¹⁸⁹ alleged harassers are likely to pay more in a settlement if the claimant promises not to discuss the incident(s).¹⁹⁰

The #MeToo movement has highlighted the significant drawbacks of NDAs in the context of sexual misconduct.¹⁹¹ When it comes to sexual misconduct, the public is entitled to know about illegal activities occurring in the workplace, particularly if that behavior is repeated.¹⁹² Shielding this misconduct from the public eye may harm the public’s faith in corporate governance (if sexual misconduct is later revealed, despite NDAs).¹⁹³ Similarly, investors deserve to know the legal risks faced by the companies in which they invest.¹⁹⁴ NDAs prevent “the free flow of information in markets” and can thus harm investors if the underlying issues are not addressed, ultimately impacting the value of a firm.¹⁹⁵ And although these risks are inherent to every NDA, they are particularly pernicious here, where they may shield repeat offenders from public accountability.¹⁹⁶

Additionally, sexual misconduct may harm public health and safety if the perpetrator is a serial offender (as is frequently the case).¹⁹⁷ Discussing misconduct can prevent future misconduct, encourage other survivors to discuss their own experiences,¹⁹⁸ or help claimants process the trauma they experienced.¹⁹⁹ Not discussing it, on the other hand, may normalize the misconduct.²⁰⁰ Survivors, especially those who are new to their jobs, may believe that this misconduct is inherent in the workplace.²⁰¹ They may even leave their chosen field of work to avoid future harassment.²⁰² To be clear, we must avoid reforms that place the burden of rectifying the sexist workplace on the survivor—one risk of banning the NDA altogether.²⁰³ But #MeToo has demonstrated that NDAs’ unregulated use in the context of sexual misconduct must be reined in.²⁰⁴

In the wake of the #MeToo movement, confidentiality and nondisclosure agreements have been viewed as “‘encourag[ing] further bad behavior on behalf of the sexual harassers, leading to more victims and more confidentiality agreements.’”²⁰⁵ Public discourse surrounding sexual harassment and NDAs has increased as journalists are “eager to amplify the voices of those who have suffered in silence,”²⁰⁶ including in the political sphere. During a 2020 Presidential Debate, Senator Elizabeth Warren questioned fellow Democratic candidate, former New York City Mayor, Michael Bloomberg, about his treatment of women.²⁰⁷ Warren asked if Bloomberg would release women at Bloomberg’s company and foundation from their NDAs regarding sexual harassment and gender discrimination in their workplace.²⁰⁸ Warren credited her questioning of Bloomberg to her intolerance “for the kind of behavior the ‘Me too’ movement has exposed” and the ways that NDAs silence women’s hostile workplace experiences.²⁰⁹ In 2018, President Donald Trump’s NDA with Stephanie Clifford, also known as Stormy Daniels, was abandoned when Clifford chose to publicly disclose details of her sexual relations with Trump.²¹⁰ Clifford joined a growing number of women breaking their NDAs to warn other women of the harassment and hostile workplaces they endured; as the #MeToo movement has grown “we have seen more women willing to tell their stories in the face of possibly being sued for breaking their NDAs.”²¹¹ As more women continue to challenge NDAs, “public policy, agencies and the judiciary are more open to not enforcing these contracts when there is a public interest to know.”²¹²

State legislatures have considered the #MeToo movement as they debate whether to prohibit the use of NDAs in settlements of sexual assault or harassment claims. For example, the Assembly Judiciary Committee in California specifically noted the sexual misconduct occurring in Hollywood in its analysis of proposed NDA legislation.²¹³ A bill in New York to restrict NDAs in the context of sexual misconduct was proposed on the heels of the #MeToo movement.²¹⁴ Illinois passed the Workplace Transparency Act in 2019, which included a prohibition of NDAs covering instances of sexual harassment.²¹⁵ In the debates leading up to the passage of the Workplace Transparency Act, Illinois House Representative Anne Stava-Murray remarked: “[T]he difference between the last time this came forward and now is the #MeToo movement.”²¹⁶

Below, we discuss the different legal solutions adopted by state legislatures to address the problem posed by NDAs in the sexual harassment context.

A. Confidentiality Prohibitions Applying to Claimants Generally

California, New York, and Nevada have the broadest prohibitions on NDAs involving claims of sexual misconduct, banning many confidentiality clauses.²¹⁷ Confidentiality provisions are commonplace in “nearly every settlement agreement resolving a legal dispute.”²¹⁸ In settlement agreements concerning sexual harassment of an employee, confidentiality clauses bar the employee from communicating details of the settlement, or the facts that led to the agreement, to anyone.²¹⁹ When confidentiality agreements are included in NDAs, they traditionally prohibit employees from sharing trade and company secrets, however, they have been extended in some contracts to also prohibit complaints and disclosures of workplace sexual harassment.²²⁰ California bans the use of NDAs for all claims of sexual misconduct in civil or administrative actions.²²¹ Similarly, Nevada prohibits confidentiality clauses in settlements of criminal sexual misconduct claims, while New York prohibits them in settlements of all discrimination claims (e.g., race, gender, and age).²²²

B. Confidentiality Prohibitions in Employer-Employee Agreements

Most states that regulate confidentiality provisions covering claims of sexual misconduct ban these provisions in the employer-employee context. But there are differences in the statutes. New Mexico, Tennessee, Vermont, and Virginia prohibit employers from requiring confidentiality agreements in sexual harassment settlements as a condition of employment.²²³ Illinois, New Jersey, and Oregon, on the other hand, provide general restrictions preventing employers from enforcing confidentiality provisions in certain cases.²²⁴ Illinois’ general restriction prohibits confidentiality provisions if they are unilaterally decided by the employer.²²⁵ This prohibition applies to all “unlawful employment practices,” not only claims of sexual misconduct.²²⁶ New Jersey narrows its prohibition to employer-employee settlements of alleged discriminatory misconduct.²²⁷ Oregon’s general prohibition is even more precise, specifying that “sexual assault” is a type of discrimination that cannot be included in confidentiality provisions.²²⁸

C. Confidentiality Prohibitions for Public Officials

In addition to employment relationships, some states prohibit the confidential settlement of claims against various public agents. For example, Louisiana prohibits public agents from including confidentiality clauses in sexual harassment or assault settlements if public funds were spent to reach the agreement.²²⁹ Similarly, California prohibits government agents from entering into confidentiality agreements, even if the provision would otherwise be allowed under the state’s exception (which is discussed in the next Section).²³⁰ Tennessee has a more specific prohibition against confidentiality clauses in the public sector; it restricts public school districts and other educational agencies (“local education agencies”) from using confidentiality provisions in sexual misconduct settlements.²³¹ These are not the only states to recognize the issue of sexual misconduct by public agents. The National Conference of State Legislatures has compiled a list of states who have recently considered passing a law regarding sexual harassment in their state legislature.²³² For example, Louisiana Senate Bill 182 “[p]rovides for reimbursement of taxpayer dollars used to pay sexual harassment judgments or settlements” and North Carolina House Bill 817 “[c]reates a confidential process for reporting and resolving incidents of sexual harassment . . . requires training to prevent workplace harassment [and] . . . adopts clear sanctions.”²³³

D. State Law Exceptions to Confidentiality Prohibitions

Although the above states limit the reach of confidentiality provisions, they also recognize circumstances where confidentiality may be permissible and carve out exceptions to accommodate such instances.²³⁴ Of the states that have banned confidentiality clauses in settlements of sexual harassment claims, only Arizona, New Jersey, Tennessee, Vermont, and Virginia do not provide any exceptions to their prohibitions.²³⁵

Other states allow confidentiality provisions when claimants request or agree to them.²³⁶ For example, New Mexico law contains a clause which protects the claimant’s identity when the claimant requests confidentiality.²³⁷ Both Nevada²³⁸ and California²³⁹ have a similar exception, but those exceptions do not apply when a government agency is a party to the agreement. Louisiana permits public agents to agree to confidentiality clauses provided no public funds are used to further the settlement.²⁴⁰ New Mexico has an exception for when the claimant requests the clause but is later legally required to disclose the confidential information (e.g., via subpoena).²⁴¹ Additionally, Nevada, New Mexico, and New York allow the monetary terms of a settlement to remain confidential.²⁴²

Another common exception applies when the claimant either requests or agrees to the confidentiality agreement and has time to contemplate their decision. In addition to other exception requirements, Illinois requires that an employee have twenty-one days to consider the confidentiality agreement, and seven days to revoke the agreement after it has been signed.²⁴³ Similarly, Oregon provides an exception for when the claimant requests confidentiality and is given seven days following the agreement to revoke the confidentiality clause.²⁴⁴ Oregon also has an exception for when the employer determines, in good faith, that an employee engaged in illegal discrimination.²⁴⁵ Like Oregon, Washington has an exception to its general restriction on employers enforcing confidentiality clauses when the confidentiality was agreed to after the sexual harassment occurred.²⁴⁶ Lastly, New York’s more stringent exception allows for confidentiality when the claimant prefers it, which is presumably a higher standard than if they request it, as long as they have twenty-one days to revoke the clause.²⁴⁷

E. State Law Prohibitions on Waivers of Rights and Remedies

In addition to confidentiality provisions, states have also restricted waivers of a sexual harassment claimant’s rights and remedies.²⁴⁸ A rights and remedies clause outlines which legal rights and remedies the signer can maintain while remaining in compliance with the agreement, as well as which legal rights the signer waives. In theory, a waiver of rights could result in employees “waiv[ing] future claims based upon illegal activity that occurred after they signed the NDA.”²⁴⁹ Not all states that restrict confidentiality provisions also restrict the waiver of a claimant’s rights and remedies.²⁵⁰ For example, Arizona, Nevada, New Mexico, Oregon, Tennessee, and Virginia all remain silent on a sexual harassment claimant’s ability to contractually waive their rights.²⁵¹

The states that have addressed this issue fall into two categories. The first category of states void provisions waiving a claimant’s rights and remedies.²⁵² Although a ban in this category has been interpreted to also ban arbitration, arbitration is not specifically addressed in these statutes.²⁵³ New Jersey, for example, prohibits employment contract clauses that waive substantive or procedural rights and remedies when a sexual discrimination or harassment claim is involved.²⁵⁴ Vermont’s law is very similar to New Jersey’s.²⁵⁵ Washington’s law is also similar, but it covers all forms of discrimination and focuses more specifically on an “employee’s right to publicly pursue a cause of action.”²⁵⁶ Although Maryland does not explicitly prohibit confidentiality provisions, it bans the waiver of rights or remedies in employment contracts when an employee makes a sexual harassment claim.²⁵⁷

Similarly, California bans contractual provisions that waive a claimant’s right to testify about sexual harassment if they are later legally required to disclose the confidential information (e.g. by a subpoena).²⁵⁸ California also prohibits employers from asking employees not to disclose “unlawful acts in the workplace,” including sexual harassment, in return for a raise or bonus.²⁵⁹ The California legislature attempted to broaden these prohibitions in a bill signed into law by Governor Newsom in October 2019.²⁶⁰ Although the proposed law, Assembly Bill 51 (AB 51), does not explicitly ban mandatory arbitration in employment disputes,²⁶¹ it does prohibit employees from waiving their rights to any forum or procedure as a condition of their employment.²⁶² Thus, AB 51 effectively bans mandatory arbitration clauses in employment contracts.²⁶³

AB 51 was scheduled to take effect on January 1, 2020.²⁶⁴ In December 2019, however, the California Chamber of Commerce and other trade organizations sought to enjoin AB 51’s enforcement on the grounds that it is preempted by the Federal Arbitration Act (FAA).²⁶⁵ On December 30, the federal district court granted a temporary restraining order, preventing AB 51 from coming into operation as planned.²⁶⁶ In February 2020, the court released an order granting a preliminary injunction.²⁶⁷ The court held that AB 51 will likely be preempted by the FAA because it treats agreements to arbitrate differently than other agreements and conflicts with the FAA’s objectives.²⁶⁸

The second category of states legislate against mandatory arbitration agreements.²⁶⁹ For example, Illinois not only prohibits employers from requiring a waiver of substantive or procedural rights as a term of employment,²⁷⁰ but also goes a step further and voids any clause that, as a term of employment, requires employees to arbitrate.²⁷¹ Illinois includes an exception to this prohibition when both parties provide “knowing . . . and bargained-for consideration,” however, the employee may still report discrimination or seek legal advice.²⁷² In New York a bill was proposed which would void contractual clauses that waive rights and remedies relating to discrimination claims (including harassment).²⁷³ Although that bill has not passed, New York already specifically prohibits the enforcement of mandatory arbitration clauses for discrimination claims.²⁷⁴

F. Preemption of State Laws Under the Federal Arbitration Act

Hope is on the horizon over the arbitration landscape, as discussed below, but under existing law, it may not matter whether state laws explicitly or implicitly prohibit mandatory arbitration. These laws may, like California’s AB 51, be preempted under the FAA.²⁷⁵ In fact, a Washington court has already ruled that the state’s mandatory arbitration ban is unenforceable due to preemption.²⁷⁶ In Logan v. Lithia Motors, an employee and Lithia Motors agreed to arbitrate all employment-related claims.²⁷⁷ The employment contract specifically referred to the FAA.²⁷⁸ Following his employment, the employee sued Lithia Motors for discrimination.²⁷⁹ Lithia Motors argued that the dispute should be submitted to mandatory arbitration, claiming the FAA preempted Washington’s statute.²⁸⁰ The court agreed with Lithia Motors’ argument because “[f]ederal policy favors arbitration” under the FAA.²⁸¹ Thus, Lithia succeeded in moving the dispute to arbitration because the FAA preempted Washington’s ban of mandatory arbitration clauses.²⁸²

Similarly, a federal court recently ruled that New York’s ban on mandatory arbitration is preempted by the FAA.²⁸³ In Latif v. Morgan Stanley & Co., an employee sued his former employer for discrimination and sexual misconduct.²⁸⁴ The employer sought to compel mandatory arbitration because the employee had signed an arbitration agreement.²⁸⁵ The agreement stated that it should be interpreted in accordance with the FAA.²⁸⁶ The court granted the employer’s motion to compel arbitration,²⁸⁷ stating that “[t]he FAA . . . is not easily displaced by state law.”²⁸⁸ The court reasoned that the ordinary meaning of the FAA’s wording and Supreme Court decisions interpreting it demonstrate a preference for arbitration agreements.²⁸⁹ Because the court found that New York’s law discriminated against arbitration agreements, the court held it preempted by the FAA.²⁹⁰

These recent cases, as well as the preliminary injunction against California’s AB 51, demonstrate a trend toward FAA preemption of state laws. Based on the facts of the above cases, however, one could argue that state law could strike down an employment contract mandating arbitration if the contract lacks a reference to the FAA.²⁹¹ The issue of whether a contract needs to include a reference to federal law to preempt state law has not yet been litigated. Regardless, the FAA continues to cast a long shadow over attempts to limit enforcement of mandatory arbitration clauses.²⁹²

Furthermore, recent cases such as Manhattan Cryobank, Inc. v. Hensley do not challenge Latif’s holding that the FAA preempts state law bans on mandatory arbitration in sexual harassment cases.²⁹³ Manhattan Cryobank distinguished Latif by contrasting minors’ arbitration claims with those of adults; it noted contractual differences between the arbitration of adults’ workplace discrimination claims and the arbitration of cases where children inherited genetic diseases from dishonest sperm donors.²⁹⁴ In contrast, Tantaros v. Fox News Network, LLC²⁹⁵ casts some doubt on Latif, first by acknowledging the lack of analysis from other federal courts regarding New York’s local statute specifying prohibited types of mandatory arbitration clauses,²⁹⁶ and then by emphasizing the importance of federal jurisdiction in Latif:

The only other federal court case interpreting § 7515 is . . . Latif v. Morgan Stanley & Co . . . in which Judge Cote held that § 7515 was preempted by the Federal Arbitration Act. In that case, however, federal jurisdiction was clearly present given Plaintiff’s Title VII and § 1981 federal claims. The Court and Parties agreed that the issue of preemption was to be resolved by the District Court in that case.²⁹⁷

But neither case offers robust criticism of Latif or the FAA, and instead indicate that the FAA continues to offer a viable means of preventing state laws from restricting the use of mandatory arbitration provisions in sexual harassment claims.²⁹⁸

Fortunately, further judicial scrutiny of Latif or the FAA may be less urgently needed now that the tangible effects of the #MeToo movement have begun to materialize. In the wake of the movement, discussions in Congress to amend the FAA led to proposals including the Forced Arbitration Injustice Repeal (FAIR) Act (R.963), which would invalidate forced arbitration requirements in an employment, consumer, antitrust or civil rights dispute, as well as the Protecting the Right to Organize Act (PRO Act) (R.842, which could empower women to collectively bargain against their employers and enforce their rights.²⁹⁹ As of this Article’s publication, Congress recently passed legislation, which President Biden is expected to sign, banning forced arbitration provisions in contracts involving sexual harassment and sexual assault cases brought by workers and customers.³⁰⁰ The law will apply to employment contracts retroactively,³⁰¹ further bolstering protections offered by the state laws discussed above.

G. Local Laws Regulating Sexual Misconduct

States are not the only entities attempting to address sexual misconduct in the wake of the #MeToo movement—local governments are attempting to do so as well.³⁰² For example, the “Stop Sexual Harassment in NYC Act” became effective in 2018.³⁰³ Aimed at fighting workplace sexual harassment, this Act is a series of laws that expand New York City’s sexual harassment protections, including mandatory employee trainings and required notification of employees of their rights.³⁰⁴ Additionally, in San Francisco, local officials are prohibited from entering into confidential settlement arrangements,³⁰⁵ and every city commissioner must complete yearly ethics and sexual harassment training.³⁰⁶

These local laws strive to remedy the insufficient legal protections, brought to light by the #MeToo movement, which have left employees vulnerable to workplace sexual harassment.³⁰⁷ By implementing legislation targeted at preventing sexual harassment as well as providing measures to support the legal rights of claimants, these localities seek to transform workplace culture, expand protections to all employees, and increase employer accountability.³⁰⁸ Whether New York City and San Francisco inspire other local governments to pass similar laws remains to be seen. The next Part highlights how attitudes and advocacy around women’s rights have shifted as a result of greater societal turmoil and transformation.

IV. Inflection Points and Change

A. Inflection Points

2020–2021 has been a time of inflection.³⁰⁹ Prior inflection points include 1933, the year that the Great Depression reached its peak, and the beginning of the Civil War in 1861.³¹⁰ These times usually result from a confluence of events causing a significant societal shift that leads to changes not only in attitudes, but also in laws and in people holding positions of power.³¹¹ A more recent confluence occurred in 1979 when an energy crisis, the seizure of the American embassy in Tehran, stagflation, and economic turmoil prompted the conservative shift and subsequent election of Ronald Reagan.³¹² Another inflection period occurred in 1968,³¹³ when protests followed the assassination of Dr. Martin Luther King, Jr. and a racial divide was intensified by the campaign of George Wallace, a racist and populist presidential candidate.³¹⁴ The assassination of presidential candidate Robert F. Kennedy further shocked the country, which was already deeply divided over the Vietnam War.³¹⁵ This generational and class rift was amplified by the chaos at the Democratic political convention in Chicago.³¹⁶

We appear to be suffering from a similarly divisive time in 2020 and 2021.³¹⁷ At the time of this Article’s publication, the COVID-19 pandemic has resulted in the deaths of over 950,000 Americans, where people of color are disproportionately represented in this statistic.³¹⁸ As a consequence of the pandemic and the resulting shutdowns, the country plunged into an economic crisis characterized by widespread unemployment and an unexpectedly steep decline in the employment-to-population ratio.³¹⁹ This, in turn, has led to shifts in the way people work,³²⁰ are schooled,³²¹ and interact.³²² The pandemic also brought to light the inequities in our healthcare system³²³ and disparities in wages.³²⁴ The killings of George Floyd³²⁵ and Breonna Taylor³²⁶ by police spurred nationwide protests against the pervasive discriminatory policing suffered by Black Americans. The Black Lives Matter movement continues to call for change, highlighting racial inequities not only in policing, but also in all facets of American life.³²⁷ Political divisions have deepened, furthered by an impeachment trial³²⁸ and an unusually bitter political campaign, followed by violent insurrection at the United States Capitol.³²⁹ At the same time, unprecedented fires, floods, and storms have caused even further harm,³³⁰ with devastating effects.³³¹

Inflection points may lead to shifts in societal thinking and calls for reform in the government and its laws.³³² Indeed, according to one influential scholar of constitutional theory, inflection points can be direct causes of constitutional change.³³³ Major societal-paradigm shifts can, according to Bruce Ackerman, themselves become an instance of “higher lawmaking,” through which “We the People” can effect constitutional change without undergoing the formal amendment process.³³⁴ According to Ackerman, major inflection points have caused three constitutional paradigm shifts: from the Founding paradigm, through Reconstruction, to the current New Deal Constitutionalism.³³⁵ Inflection points can cause radical changes in our constitutional thought—even without formal amendments—that can respond to and even exacerbate interbranch conflict.³³⁶ National crises cause interbranch conflict (as, e.g., between the Supreme Court and the Executive) that is eventually resolved by a series of decisive elections.³³⁷ As the nation is faced with a confluence of social crises, a pandemic, and sharp division between an ultra-conservative judiciary and an increasingly liberal population (and, with President Biden’s election, a liberal Executive), we may well be heading toward another constitutional paradigm shift, particularly given the Democrats’ expressed willingness to consider court reform.³³⁸

But even if we reject Ackerman’s views, it is clear that social crises often serve as catalysts for legal change.³³⁹ Consider, for example, when recognition of entrenched gender and racial inequities became widespread in the 1960s, leading to the passage of the Equal Pay Act of 1963³⁴⁰ and the Civil Rights Act of 1964 which includes Title VII.³⁴¹ Today, in response to growing acknowledgement of racial, gender, and economic inequalities stemming from the events of 2020, women have gained significant power in Congress and state legislatures.³⁴² Moreover, the #MeToo movement has prompted greater awareness of injustices in the corporate world.³⁴³ Academics have acknowledged that the #MeToo movement “has strong support in Congress, in state legislatures, and in the business community.”³⁴⁴ In light of the movement, companies and shareholders are rethinking their approach to diversity, equal treatment, and leadership.³⁴⁵ These factors suggest that new legislation and regulations designed to level the playing field and end sexual harassment in the workplace are likely.

This societal shift coincides with the election of President Biden, Vice President Kamala Harris, and a more balanced Congress.³⁴⁶ Liberals have been a driving force behind the #MeToo movement, making them more likely to respond to sexual harassment with political change.³⁴⁷ In his first speech as President-Elect, while laying out his goals for the coming four years, Biden noted that we were at an inflection point.³⁴⁸ He cited the need to address inequities so that people would have a “fair chance” to achieve what they wanted and needed in our society.³⁴⁹

President Biden’s “fair chance” resembles the goals of the civil rights movement and resultant Civil Rights Act of 1964: to provide an equal playing field.³⁵⁰ The country is likely ready for a new civil rights push. If a new Civil Rights Act were to be enacted, the next question becomes: what should be its focus? At its heart, it must address racial, gender, and economic inequality. Especially considering the disproportionate effect of COVID-19 on people of color and women, the need for intersectional change is clear.³⁵¹ The pandemic again exposed that Americans were not truly all in this together. Black women lost their jobs at the highest rate of all other groups during the pandemic while also facing more severe threats to their health from COVID-19 given the disproportionate incidence of chronic health conditions among the Black female population.³⁵² Because both COVID-19 and the Black Lives Matter movement are intersectional issues uniquely impacting women, lifting up women—such as in the workplace—will aid in the progress of these and other movements addressing this country’s entrenched inequities.³⁵³ Many of today’s circumstances are different from those existing when the Civil Rights Act of 1964 was passed, thus the solutions will be different. But the goal is the same: a fairer society for the benefit of all.

B. Congressional Action

This better society can be achieved through several possible approaches. Earlier in this Article, we cite Professor Paul Freund of Harvard University for his commentary on the debate over passage of the ERA.³⁵⁴ He analogized the two approaches to the issue of equal rights for women—the ERA versus other solutions—as a “single broad-spectrum drug with uncertain and unwanted side-effects and a selection of specific pills for specific ills.”³⁵⁵ Because of today’s political climate, this Article urges for specific pills in the short term while considering the ERA as a “broad spectrum,” longer-term goal.

President Biden faced many challenges upon entering office, but his overarching objectives have been reviving the economy and controlling COVID-19, which in turn would also help rebuild the economy.³⁵⁶ Before COVID-19, slow progress was made in expanding the representation of women in the workplace, from entry level jobs to C-suite positions. But COVID-19 brought with it major setbacks.³⁵⁷ Before the pandemic, women did not opt out of the workforce at a higher rate than men, yet during the pandemic women were pushed out of the workplace at a far higher rate.³⁵⁸ If the “negative impact of COVID-19 on women remains unaddressed—global GDP in 2030 would be $1 trillion below where it would have been if COVID-19 had affected men and women equally.”³⁵⁹ To make economic gains, the jobs market must be revitalized.³⁶⁰ And for this to occur, women must be brought back into the workforce.³⁶¹ As of this Article’s publication, one of President Biden’s proposed domestic policy initiatives is a $1.9 trillion relief plan to support families with childcare and necessary costs.³⁶² Childcare aid will allow parents, especially mothers, to return to the workforce.³⁶³

The pandemic has imposed a far greater toll on women’s employment than on men’s.³⁶⁴ For example, in September 2020, 865,000 women were laid off or had left the workforce compared to 216,000 men.³⁶⁵ In December 2020, all jobs lost were those held by women.³⁶⁶ As of May 2021, only 56% of women were working for pay, the lowest number since 1986.³⁶⁷ Women of color have been particularly impacted. Total employment for Black women in February 2021 was down 9.7% from February 2020; that figure was 8.6% for Hispanic women.³⁶⁸ For white women, total employment was down 5.4%.³⁶⁹ The difference is stark in employment-to-population ratios as well. In February 2020, before the pandemic, Black women’s employment-to-population ratio was 60.8%; as of April 2021, it stands at 54.8%, a six-percentage point drop.³⁷⁰ By contrast, white women’s rate dropped by only about three percentage points.³⁷¹ These differences stem in part from the pandemic’s disproportionate impact on sectors like retail, tourism, and state and local governments, all of which employ large numbers of Black women and all of which were negatively impacted by COVID.³⁷²

The pandemic may also drive many women to quit their jobs. The Sixth Annual Women in the Workplace Study by McKinsey & Co. and LeanIn.org found that more than a quarter of women said they may resign due to pandemic pressures, and more than thirty percent at the management level felt similarly.³⁷³ Women are feeling pushed to a point that is unsustainable.³⁷⁴ Inequality long predates the pandemic, especially in access to leadership positions, and the onset of the pandemic has only intensified the divide.³⁷⁵ Moreover, women who feel forced to leave work, even temporarily, can lose job skills, opportunities for advancement, wages, and benefits.³⁷⁶ This outflow of female workers may reverse the last five years of progress that women have made toward increasing their representation across all segments of the workforce.³⁷⁷ Companies attempting to diversify are also losing out.³⁷⁸ Two actions can help women reenter the workforce: improved childcare and higher wages.³⁷⁹

In the post-election political climate, concrete steps seem feasible. Vice President Kamala Harris has long fought for civil rights and women’s rights.³⁸⁰ And there are more women in positions of power in Washington, D.C. than ever before.³⁸¹ Women gained valuable seats in the House, the number of female Republican House members doubling from nine to eighteen.³⁸² Women who held several top posts in the Biden campaign have filled important positions in his administration, and Biden has picked eleven women to serve on his cabinet.³⁸³

Biden tapped two women—his campaign manager and his campaign’s general counsel—to be his deputy chief of staff and counsel to the president, respectively.³⁸⁴ Biden’s appointments of women in the economic realm point to a “focus on workers and income equality.”³⁸⁵ Moreover, women tend to perform at higher levels within agencies and organizations that actively support women.³⁸⁶ President Biden has placed numerous women in positions of leadership, and this decision could contribute to more effective and proactive governance when it comes to issues that disproportionately affect women.³⁸⁷

Access to childcare might be seen as a new form of civil right to the extent that it gives children safety and consistency while allowing parents equal access to work and a fair chance at success.³⁸⁸ It will be crucial not only to revitalizing the economy, but also to creating an economy where every individual has “a fair shot and an equal chance to get ahead.”³⁸⁹ A major concern with respect to childcare access is that “women’s waning labor force participation during the pandemic . . . [is] the burden borne by mothers forced to choose between work and the supervision and education of their young children.”³⁹⁰ Government action prioritizing and supporting childcare providers and parents may allow parents, disproportionately mothers, to return to work.³⁹¹

President Biden already cited increased tax breaks for childcare expenses in his first economic plan upon being sworn in.³⁹² Additionally, the President has supported a “$15 billion allocation for child development block grants, a $1 billion allocation for the Head Start early education program, and a $24 billion stabilization fund for child care providers” in order to support the infrastructure allowing parents to return to work.³⁹³ Many other developed countries provide childcare;³⁹⁴ Scandinavian countries and France are prime examples.³⁹⁵ Considering these examples, much could be achieved in the United States through a combination of early preschool and supplements for childcare.³⁹⁶

A program supporting parents through additional access and affordability of childcare could be funded similarly to Medicaid, with joint federal and state contributions. The program could even be expanded to include the private sector, such as by providing increased tax breaks for companies that offer childcare. But a program like this may be viewed by some as approaching the path of social welfare, and with Congress so closely split, such a reform would likely be difficult to achieve despite the obvious benefits for economic recovery.

Higher wages will also aid in women’s reentry into the workforce. Lower wages perpetuate gender inequality and decrease women’s independence.³⁹⁷ Alleviating the wage gap will not only benefit the economy, but also allow women to more easily return to work. Additionally, closing the wage gap “benefits women’s families, especially their children, by increasing investment in education, health, nutrition, and housing.”³⁹⁸

President Biden has already taken steps in this direction, including through a minimum wage of $15 per hour proposed in his economic relief package.³⁹⁹ Although the $15 minimum wage ultimately did not make it into the economic relief package,⁴⁰⁰ this proposal is a valuable jumping-off point for future lawmakers. This legislation would benefit women and minorities, who have been pushed out of the workforce and tend to have lower paying jobs than their white male counterparts.⁴⁰¹ Correcting the wage gap would help women quickly reenter the workforce and alleviate some of the burdens imposed by childcare and eldercare expenses.⁴⁰² Numerous states have already committed to increasing the minimum wage, with several raising it to $15 per hour.⁴⁰³ Even a lower increase would still constitute a step in the right direction.⁴⁰⁴

Additionally, other congressional measures may be used to further address women’s inequality in the workplace. Congress has already passed legislation barring employers from requiring employees to agree to arbitration in most sexual harassment and sexual assault cases, legislation which President Biden is expected to sign. The ability to pursue discrimination claims furthers the public policy of rooting out discrimination by allowing these claims to become public knowledge. By contrast, there is no public reporting of arbitration claims, permitting workplace discrimination to persist unnoticed.

As discussed above, another possible path is to ratify the 1970s Equal Rights Amendment.⁴⁰⁵ But given its current makeup, the Supreme Court is unlikely to address the issue.⁴⁰⁶ The addition of Amy Coney Barrett to the Court in October 2020 means that a majority of the Court are strict constructionists.⁴⁰⁷ Strict constructionists generally share the view that the Court’s role is to enforce statutes strictly as written, as opposed to engaging in more holistic interpretation that takes into account legislative aims, historical context, and policy consequences.⁴⁰⁸ Because Congress articulated two dates for the adoption of the ERA as a constitutional amendment, and those dates are long past, a majority of the Court will likely view that legislation as dead.⁴⁰⁹ The ERA, however, could be reintroduced in Congress at a later date. This approach may stand a better chance, considering that Democrats have a very slim majority in the Senate and consequently control of the bills that are introduced.⁴¹⁰ Still, state ratification of an entirely new ERA, if successful, would likely take years, making this reform a remote possibility.

C. Specific Measures

Each proposed change discussed thus far requires congressional action, and the close congressional party split will require careful prioritizing of which actions to tackle first. In addition, Biden and Congress must grapple with the lasting impacts of the Trump administration and the pandemic. There are, however, many specific measures that Biden’s administration can implement quickly to effectuate his “fair chance” society, specifically with respect to women’s equality in the workforce.

On his first day in office, President Biden signed fifteen executive orders and took two executive actions.⁴¹¹ He issued many more in subsequent days, most of which undo some of the nearly 200 executive orders issued by President Trump.⁴¹² In issuing such orders, President Trump, like President Obama before him, was often reacting to Congress’s failure to pass legislation.⁴¹³ Throughout history, significant actions, such as the first nondiscrimination order, were achieved through executive orders, illustrating the importance of executive orders as a tool in a closely divided Congress.⁴¹⁴

President Biden can also implement change through agencies and federal contracts under his control.⁴¹⁵ For instance, federal contractors can be more closely monitored to determine whether they actually achieve diversity rather than just treating stated diversity goals as required paperwork.⁴¹⁶ Another day-one Biden action was an order directing federal agencies to deliver plans addressing the removal of barriers to the advancement of minorities.⁴¹⁷ He also ordered the Office of Management and Budget to more equitably allocate federal funds to minority communities.⁴¹⁸ Importantly, Biden’s executive decisions were enacted immediately, remedying issues more swiftly than could ever be achieved via lengthy legislative changes aimed at growing gender disparities.

The power of the purse is yet another way to swiftly achieve reform. Federal contractors employ approximately a quarter of U.S. workers.⁴¹⁹ Biden has already issued an order directing agencies to begin planning for a $15 minimum wage for federal workers, and he is expected to issue an order requiring federal contractors to pay a $15-per-hour minimum wage in the near future.⁴²⁰ The $15 pay would in turn put pressure on private employers to meet that minimum if there is competition for employees. Requiring contractors to meet diversity goals would also help establish norms throughout the United States. A stated goal of the new administration is to fight racism.⁴²¹ President Biden’s plan targeting lower-income jobs—including hospitality, retail, food service, and some health care jobs—disproportionately impacts women of color where “total employment for Black women is 9.7% lower than it was in February 2020” before the pandemic, with “Hispanic women close behind at 8.6% lower,” and compared to 5.4% for white women.⁴²² Additionally, women of color have been excluded by parts of the #MeToo movement that have focused on white, affluent, educated women instead of the “industries in which women of color workers are strongly represented [which] are also particular hotbeds of sexual harassment and assault.”⁴²³ Increasing diversity training could also counteract workplace discrimination. The history of the 1964 Civil Rights Act shows that many advances for women followed from rights first granted on the basis of race.⁴²⁴ For example, the Supreme Court authorized affirmative action on the basis of race in 1978; it allowed it for women in 1987.⁴²⁵ Though many large employers had attempted to improve diversity through training programs, former President Trump issued an executive order on September 22, 2020, halting much of that training.⁴²⁶ A reversal of this order is expected to be one of President Biden’s first employment moves while in office.⁴²⁷

Biden could also swiftly work to address women’s equality by banning nondisclosure agreements with respect to discrimination claims and settlements in federal contracts. As discussed earlier, there are still immense gaps in sexual harassment law.⁴²⁸ The #MeToo and similar movements, though undoubtedly important in their own right, do not protect an individual’s job when that person comes forward. About one-third of the states have decided that the freedom of contract is subordinate to the need for transparency regarding harassment.⁴²⁹ Given that many states have already addressed this issue, such a ban would not be surprising to many, nor be too far a shift from the norm.⁴³⁰ The Biden administration could create uniform language and rules, giving businesses a clearer idea of their obligations regardless of their state of operation.

Under the right leadership, the Equal Employment Opportunity Commission (EEOC), could also swiftly fight for equality in the workplace. The EEOC is a bipartisan federal agency with five commissioners appointed by the President.⁴³¹ In January 2021, Biden named a new chair and vice chair.⁴³² It is the Commission’s responsibility to “provide[] leadership and guidance” on the federal government’s equal employment opportunity program.⁴³³ In its rules, regulations, and enforcement actions, the Commission has considerable power in the employment arena by enforcing federal laws that make it illegal to discriminate against a job applicant or employee on the basis of race, color, religion, sex, national origin, age, or disability.⁴³⁴ At a minimum, a reconfigured EEOC could halt some Republican attempts to undermine the Commission’s efforts to secure equality in the workplace. For example, by delegating some of its authority to the Departments of Justice and Labor, the EEOC could prevent the dilution of the agency’s power across partisan lines.⁴³⁵

A reconfigured EEOC could also push for change in the workplace by promoting salary transparency⁴³⁶—one of Biden’s stated goals during his campaign.⁴³⁷ Studies have shown that knowledge of pay in an organization and region enables women to bargain more effectively and helps narrow the wage gap between men and women.⁴³⁸ Women made progress toward equal pay before the pandemic, especially among younger workers, but the gap widens as women move up the organizational hierarchy.⁴³⁹ One step toward transparency would be prohibiting employers from banning employees’ discussion of salaries. This prohibition should certainly apply to federal contractors given the power of the presidency. At least a quarter of the states already have such legislation,⁴⁴⁰ thus this kind of rule should not prove too controversial. Another change the EEOC could implement is publishing salary ranges for classes of jobs in various regions. Moreover, the government could require federal contractors to make salary information publicly available. Increasing salary transparency among both public and private employers would be a huge step forward for women’s equality, as equality increases alongside transparency.⁴⁴¹

The EEOC could also more aggressively promote salary equity by closing a loophole in the Equal Pay Act that essentially guts the legislation.⁴⁴² The Act requires women be paid the same as men for equal work in the same establishment.⁴⁴³ However, an employer can justify different pay simply by showing that the difference was based on “any factor other than sex.”⁴⁴⁴ Courts have interpreted this phrase generously in favor of employers.⁴⁴⁵ Many efforts have sought to correct this loophole, with the proposed Paycheck Fairness Act (PFA) perhaps having the potential to be the most effective.⁴⁴⁶ This proposed legislation would require the EEOC to “collect data on compensation, hiring, termination, and promotion sorted by sex” and prevent employers from retaliating against employees for disclosing and discussing wage information.⁴⁴⁷ By mandating the collection of hiring and promotion data sorted by sex, the PFA may provide evidence of a company trend of gender based discrimination and dispel arguments that pay discrepancies were based on factors other than sex. Despite the Act’s failure to be enacted by Congress over many years,⁴⁴⁸ several states have adopted most or parts of the PFA.⁴⁴⁹ In this period of inflection, enacting such an act may even be possible in Congress.⁴⁵⁰

Conclusion

The inflection period of 2020–2021 has already caused significant change. Democrats control both houses of Congress as well as the Executive branch, and social movements including Black Lives Matter and #MeToo have gained unprecedented traction. Although there is a greater understanding of our societal inequities, there is still a pressing need for women workers—especially women of color—to be supported economically, by promoting reentry into the workforce and fair pay, and to be equipped with stronger protections from workplace sexual harassment. Many of these reforms stand on the shoulders of previous movements, such as those preceding the passage of the Equal Rights Amendment and 1964 Civil Rights Act, which also sought to address inequality. The time is again ripe for change. It remains to be seen whether the post-inflection period will result in the necessary reforms for women in the workplace. Some potential changes, such as a reinterpretation of the Equal Pay Act and a new ERA will require great expenditures of political capital and unanimity of purpose. A unified purpose provides opportunities and hope for significant reform during a time of such uncertainty. The recent passage of federal legislation banning forced arbitration for claims of sexual harassment and sexual assault in employment contracts bolsters hope for future reform.

New York Times reporters Kantor and Twohey may have said it best when, reflecting upon the #MeToo movement, they wrote: “Progress requires a correct accounting of what women have really faced.”⁴⁵¹

The legal changes motivated by the #MeToo movement will impact young, female professionals the most. These individuals are navigating, for the first time, the difficulties of being women in the workplace, as survivors, and as individuals whose professional advancement has been historically limited. Traditional legal avenues have thus far failed to bridge the gender gap in the workplace. Nevertheless, one can hope that after the fall from grace of prominent businessmen and the rise of the #MeToo movement that “the times, they are a-changin’.”⁴⁵²

Appendix. State Regulation of Harassment Claims

State	Does the state prohibit confidentiality provisions?	Does the state provide any exceptions to such confidentiality prohibition?	Does the state prohibit waiving one’s rights or remedies generally?	Does the state explicitly prohibit mandatory arbitration?
Arizona	NDAs are not prohibited, but claimants can violate their terms to discuss sexual misconduct with law enforcement or respond to a court’s request. The bill defines an NDA as “a confidentiality agreement or contract provision that prohibits the disclosure of information by a party.” ARIZ. REV. STAT. § 12-720 (2020).	N/A	N/A	N/A
California	Generally: Prohibited in settlements for claims of: (1) sexual assault, (2) sexual harassment, (3) workplace discrimination based on sex, (4) failure to prevent harassment, and (5) retaliation. CAL. CIV. PROC. CODE § 1001 (West 2020). This prohibition applies only to claims filed in civil or administrative actions. It does not apply to pre- litigation settlements.	The provision is allowed if: (1) it is requested by the claimant and (2) shields the claimant’s identity. This exception does not apply if a government agency or agent is a party to the agreement. An agreement may require that the settlement amount remain confidential. CAL. CIV. PROC. CODE § 1001 (West 2020).	No contract or settlement provision may waive a party’s right to testify regarding sexual harassment in a proceeding by court request. CAL. CIV. CODE § 1670.11 (West 2020). Employers cannot prevent employees from disclosing “unlawful acts in the workplace,” including sexual harassment, in return for a raise or bonus. CAL. GOV’T CODE § 12964.5(a)(2) (West 2020).	The state legislature attempted to enact AB 51, which would have effectively banned mandatory arbitration clauses, but a federal district court enjoined the law’s enactment in February 2020. Chamber of Com. v. Becerra, No. 19-cv- 02456, 438 F. Supp. 3d 1078 (E.D. Cal. 2020), aff’d in part, vacated in part, rev’d in part sub nom. Chamber of Com. v. Bonta, 13 F.4th 766 (9th Cir. 2021); Assemb. B. 51, 2019 Leg., Reg. Sess. (Cal. 2019).
Illinois	For Employers: Cannot unilaterally include a confidentiality provision in any settlement or termination agreement. 820 ILL. COMP. STAT. 96/1- 30(b) (2020).	A confidentiality provision is allowed if: (1) it is documented that the employee wants it and the provision benefits both parties; (2) the employee is notified in writing of their right to have an attorney review the agreement; (3) there is consideration in exchange for confidentiality; (4) the confidentiality provision covers only events that have already occurred; (5) the employee has 21 days to consider the agreement; and (6) the employee has 7 days to revoke the agreement after it has been signed. 820 ILL. COMP. STAT. 96/1-30(a) (2020).	Voids any clause that, as a condition of employment, requires employees to waive substantive or procedural rights related to “unlawful employment practice[s].” 820 ILL. COMP. STAT. 96/1- 25(b) (2020). EXCEPTION: such clause is allowed if: (1) it is in writing, (2) both parties provide bargained-for consideration, and (3) the employee can still report “good faith” allegations to government officials and seek legal advice. 820 ILL. COMP. STAT. 96/1-25(c) (2020).	Voids any clause that, as a condition of employment, requires employees to arbitrate claims of “unlawful employment practice[s].” 820 ILL. COMP. STAT. 96 /1-25(b) (2020). EXCEPTION: the clause is allowed if: (1) it is in writing, (2) both parties provide bargained-for consideration, and (3) the employee can still report “good faith” allegations to government officials and seek legal advice. 820 ILL. COMP. STAT. 96 /1-25(c) (2020).
Louisiana	For Public Agents: No settlement agreement with a public entity or agent can include a confidentiality provision if: (1) the claim is based on sexual harassment or assault and (2) public funds were spent to reach the agreement. LA. STAT. ANN. § 13:5109.1 (2020).	Settlement agreements not involving a public entity or agent, or where public funds are not used. See LA. STAT. ANN. § 13:5109.1 (2020).	N/A	N/A
Maryland	N/A	N/A	For Employers: Voids provision waiving substantive or procedural rights or remedies regarding a sexual harassment claim. If an employer attempts to enforce such a provision, they are liable for the employee’s attorney’s fees. MD. CODE ANN., LAB. & EMPL. § 3-715(a) (West 2020).	The provision voiding waiver of rights or remedies also voids mandatory arbitration of sexual harassment claims. See MD. CODE ANN., LAB. & EMPL. § 3-715(a) (West 2020).
Nevada	A settlement agreement cannot contain a confidentiality clause if the claim relates to sexual misconduct. NEV. REV. STAT. § 10.195(1) (2020).	If the claimant requests it, the settlement must keep confidential: (1) the claimant’s identity and (2) any facts that could disclose the claimant’s identity. This exception does not apply if a public agent is a party to the agreement. The settlement amount may remain confidential in any case. NEV. REV. STAT. § 10.195(4)–(6) (2020).	N/A	N/A
New Jersey	For Employers: Confidentiality prohibited in settlements or contracts with a current or former employee if it relates to: (1) discrimination, (2) retaliation, or (3) harassment. Any settlement agreement resolving one of the three types of claims listed above must include a notice that even if the parties agree to keep the facts confidential, the clause “is unenforceable against the employer if the employee publicly reveals sufficient details of the claim so that the employer is reasonably identifiable.” Employers who attempt to enforce a prohibited confidentiality provision are liable for the employee’s litigation costs. N.J. STAT. ANN. § 10:5-12.8, 12.9 (West 2020).	N/A	For Employers: Prohibits clauses that waive “any substantive or procedural right or remedy relating to a claim of discrimination, retaliation, or harassment.” This does not apply to collective bargaining agreements. N.J. STAT. ANN. § 10:5-12.7 (West 2020).	The provision prohibiting a waiver of rights or remedies could be interpreted to also prohibit mandatory arbitration clauses. This has yet to be litigated. See N.J. STAT. ANN. § 10:5-12.7 (West 2020).
New Mexico	For Employers: Private employers cannot, as a term of employment, require employees to sign confidentiality provisions in settlements of sexual harassment claims. N.M. STAT. ANN. § 50-4-36 (2020).	Settlement agreements with an employee may include a confidentiality provision if it: (1) applies to the settlement’s monetary terms, (2) protects the employee’s identity (if the employee requests this), or (3) is at the employee’s request and still allows information to be disclosed when legally required. N.M. STAT. ANN. § 50-4-36(B)– (C) (2020).	N/A	N/A
New York	For Employers: Prohibited in settlements or other means of resolving discrimination claims outside of litigation. N.Y. C.P.L.R. 5003-B (CONSOL. 2020).	The confidentiality provision is allowed if the claimant: (1) prefers confidentiality, (2) has 21 days to consider the agreement, and (3) has 7 days to revoke the agreement after it has been signed. Parties may agree to keep the settlement amount confidential. N.Y. C.P.L.R. 5003-B (CONSOL. 2020).	A proposed bill, would void contractual provisions that: (1) waive procedural rights and remedies or (2) conceal details (other than a monetary term) related to sexual discrimination, retaliation, or harassment claims. S.B. S6382A, 2017 Leg., Reg. Sess. (N.Y. 2017).	Mandatory arbitration clauses for discrimination claims are prohibited if an employer has four or more employees. N.Y. C.P.L.R. 7515 (CONSOL. 2020). In 2019, however, a federal court ruled that New York’s ban on mandatory arbitration is preempted under the Federal Arbitration Act. Latif v. Morgan Stanley & Co., No. 18-cv-11528, 2019 U.S. Dist. LEXIS 107020 (S.D.N.Y. June 26, 2019).
Oregon	For Employers: Prohibited from using confidentiality provisions with employees that cover claims of sexual discrimination or assault. OR. REV. STAT. § 659A.370(1) (2020).	Employers may enter into a “settlement, separation or severance agreement” that includes a confidentiality provision if the employee requests it and has seven days following the agreement to revoke it. If the employer “makes a good faith determination” that an employee engaged in discrimination or sexual assault, the employer can include a confidentiality clause in a settlement, separation, or severance agreement with that employee. OR. REV. STAT. § 659A.370(2)– (4) (2020).	N/A	N/A
Tennessee	For Local Education Agencies: Public school districts and other educational agencies cannot enter into or require an NDA in any settlement of a sexual misconduct claim. TENN. CODE ANN. § 49-2-131 (2020). For Employers: An employer cannot impose a term of employment requiring an employee to sign an NDA regarding sexual harassment. TENN. CODE ANN. § 50-1-108 (2020).	N/A	N/A	N/A
Vermont	For employers: Prohibited from requiring someone, as a term of employment, to sign a contract that prevents them from reporting, disclosing, or participating in an investigation of sexual harassment. VT. STAT. ANN. tit. 21, § 495h(g) (2020). Any sexual harassment settlement must state that it does not prohibit the claimant from: (1) bringing a sexual harassment complaint to a state or federal agency (such as the Attorney General’s Office or the EEOC); (2) testifying or assisting with a sexual harassment investigation conducted by a state or federal agency; or (3) complying with a discovery request in civil litigation, or testifying at a trial for a sexual harassment claim in court or at arbitration proceedings. VT. STAT. ANN. tit. 21, § 495h(h)(2) (2020).	N/A	An employer cannot, as a term of employment, require someone to waive substantive or procedural rights or remedies regarding sexual harassment claims. VT. STAT. ANN. tit. 21, § 495h(g) (2020).	The provision prohibiting the waiver of rights or remedies would prohibit mandatory arbitration agreements as a condition of employment. See VT. STAT. ANN. tit. 21, § 495h(g) (2020).
Virginia	For Employers: May not require employees to sign an employment contract agreeing to keep details relating to a sexual assault claim confidential. VA. CODE ANN. § 40.1-28.01 (2020).	N/A	N/A	N/A
Washington	For Employers: Prohibited from forcing employees to sign a preemptive document containing a confidentiality provision regarding sexual assault or harassment in the workplace. WASH. REV. CODE § 49.44.210(1) (2020).	A settlement agreement can include a confidentiality provision if the provision was written after actual litigation began or was threatened. WASH. REV. CODE § 49.44.210(4) (2020).	N/A	A provision requiring an employee to waive their right to “publicly pursue a cause of action” for discrimination is unenforceable. Wash. Rev. Code § 49.44.085 (2020).

*Terry Morehead Dworkin, Wentworth Professor of Business Law, emerita, Indiana University and Scholar in Residence, Seattle University School of Law. **Cindy A. Schipani, Merwin H. Waterman Collegiate Professor of Business Administration and Professor of Business Law, University of Michigan, Ann Arbor. The authors wish to gratefully acknowledge the research assistance of Claire Tuffey, J.D. 2019; Brooke Bonnema, J.D. 2020; Guus Duindam, J.D. 2021; and Shane Callaghan, J.D. 2019, University of Michigan Law School, Ann Arbor.