#MeToo Changed Norms, Not the Law

Last week, the Minnesota Supreme Court heard Kenneh v. Homeward Bound, a sexual harassment case that takes aim at the legal requirement that harassment must be “severe and pervasive.” The case hinges on an assistant program supervisor harassed by a janitor. According to her, when he stopped by to fix her desk, he began “talking sexually” and licking his lips. One day he followed her to the vending machine and proposed oral sex. He even pulled up next to her at a gas station—as if he were following her. The court will now decide whether this conduct is “severe and pervasive,” or whether that requirement is outdated.

After #MeToo, men and women largely agree on what sexual harassment is1 -- and want workplaces to eradicate it: 86% of Americans now endorse a zero-tolerance policy toward harassment.2 The law is not governed by public opinion, but what Americans believe about sexual harassment does have a direct impact on the law. A crucial question, said the Supreme Court in 1993 in the landmark case Harris v. Forklift Systems, is whether a “reasonable person” would find a work environment hostile. What a reasonable person would believe today is very different from what people believed in the 1990s.