Sexual Harassment: A Doctrinal Examination of the Law, An Empirical Examination of Employer Liability, and A Question About NDAs— Because Complex Problems Do Not Have Simple Solutions

The #MeToo movement casts critical light on the pervasive nature of sexual harassment, particularly in the employment context, and continues to motivate a number of initiatives that address important social and workplace ills. The problems this movement has uncovered, however, run much deeper and likely exceed the scope and capacity of many of the proposed “fixes” it has inspired. Worse still, however, is that some of the proposed fixes may prove counterproductive. This Article examines the history and development of the relevant employment laws, empirically assesses judicial holdings on the employers’ affirmative defense to liability, and argues that many employees may be better off with a nondisclosure agreement (NDA) in many instances. Our conclusion sketches out the basic contours of an alternative legal standard, a new affirmative defense, and related policy initiatives that call into question the common perception that privacy benefits employers and not employees