It’s safe to say that as a result of the #MeToo movement, we now live in a world that views sexual harassment, abuse and assault in a profoundly different light. The problem is that while the conversation has changed, the law has not, and this leaves the majority of victims unsupported and unable to speak out.
Yesterday, Philip Green, chair of the Arcadia Group, was outed by Labour peer Lord Hain as the business mogul at the centre of Britain’s #MeToo scandal. The case is a perfect illustration of why cultural shifts must be followed by law reform if they are to have any practical impact.
Lawmakers and commentators are now debating the use and abuse of non-disclosure agreements – it has been reported that a bill will be introduced to outlaw the use of NDAs in sexual harassment claims – but the law reform needed to make #MeToo a reality goes much further than that.
What the Green scandal shows us is that the world of #MeToo is only available to those powerful enough to put their heads above the parapet – the Alyssa Milanos of the world – without fearing significant consequences for doing so and without being strong-armed by a considerably more powerful opponent. If Lord Hain had not named Green, his alleged behaviour would likely have remained hidden and unchecked.
The vast majority of victims are not protected by the cultural zeitgeist; by power, or fame, or wealth, or influence, no matter how much we talk about #MeToo. They are factory workers, and retail workers, and hospitality workers, and entry-level professionals. For these women, #MeToo is still just a conversation; it is not a solution.
It is a significant achievement that the conversation about harassment and abuse has shifted so profoundly over the last twelve months. But cultural change of this magnitude needs to be followed by substantial law reform to reflect the standards of our post-Weinstein society. In the UK, employees are formally protected against sex discrimination, which includes harassment, by the Equality Act 2010, however rates of reporting under this act are still remarkably low.
In the legal profession, unlawful conduct with reporting rates as low as workplace harassment are referred to as behaviours that are formally illegal but socially accepted. But now, the latter part of that equation has changed, and the law needs to change to keep up.
To do this, we need to introduce robust laws to protect whistleblowers. It also means making the law tougher on employers who are found to be punishing employees for speaking up.
Some lawyers have suggested that the way to ensure practical change is to take this conduct out of the realm of workplace law and into the criminal justice system.
This would mean creating specific criminal offences for individuals who harass or abuse people in their workplace. As it stands, many powerful employers can simply pay top dollar to settle these claims and use their wealth as both a shield and a sword. If we were to introduce tougher criminal laws on harassment, paying your way out would no longer be an option.
Introducing criminal provisions into anti-discrimination law, both for harassment itself and for silencing victims, has the potential to act as a strong deterrent even for the mega-rich and most untouchable of employers.
But we also need to go one step further: we need to ensure that any new laws passed to reflect the impact of #MeToo are practically accessible to victims, who are, by definition, facing down opponents whose war chests far outweigh their own.
If we are to take #MeToo seriously, any new laws should also be paired with increased funding for legal aid services who represent victims of abuse.
The case of Philip Green lays bare just how limited the practical impact of a cultural shift can be for vulnerable victims. Green is a powerful man who is wealthy enough to use high-paid lawyers, injunctions and non-disclosure agreements to protect himself against allegations.
It’s possible that Lord Hain’s decision to name Green in parliament yesterday will mean there will be consequences for him. But it should not have come to this – the fact that parliamentary privilege had to be invoked before alleged victims could speak truth to power shows how the law is failing them and needs to be brought up to speed.