The Speak Out Act: How the #MeToo Movement is Driving Change Five Years Later

by Haley Dominique, Associate Member, University of Cincinnati Law Review Vol. 91

I. Introduction

The “me too.” movement, founded by Tarana Burke, has roots dating back to 2006.¹ However, the year 2017 and social media changed everything.² The #MeToo hashtag became a global phenomenon due to celebrities such as Alyssa Milano,³ Lady Gaga,⁴ Gabrielle Union,⁵ and many others sharing their “me too” status—survivors of sexual abuse, sexual harassment, and rape culture.⁶ This created a domino effect that reached millions of people and helped amplify those who had courage to share their stories about experiences with sexual harassment and assault.⁷

This article examines how the Speak Out Act was driven by the #MeToo movement and how workplace culture will change to the benefit of both employees and employers if passed. Section II provides background on the #MeToo movement and the push for legislation to protect individuals in the workplace from sexual harassment and assault. Section III discusses the positive impact on workplace culture if the Speak Out Act is passed. Finally, Section IV concludes by reiterating the importance of protections in the workplace, and how this legislation is just the first step to protect individuals affected by sexual misconduct in the workplace.

II. Background

A. The #MeToo Movement: History and Development

#MeToo is a social movement that elevates the voices of survivors of sexual abuse, sexual assault, sexual harassment, and rape.⁸ Tarana Burke was the first voice behind the #MeToo movement on Myspace.⁹ In 2006, Burke coined the phrase “Me Too” and created a Myspace page to help people, especially women and girls of color, who also experienced and survived sexual violence.¹⁰ From the late 2000s to the mid-2010s, Burke focused her activism in Selma, Alabama.¹¹ Today, Burke serves as the Senior Director of Girls for Gender Equity in Brooklyn, NY, speaks all across the nation, and publishes work in Teen Vogue, Colorlines, Glamour, Ebony, Essence, and The Source, among others.¹²

In 2017, Alyssa Milano—an American actress in popular television shows such as Melrose Place and Charmed—tweeted a photo¹³ and said: “If you’ve been sexually harassed or assaulted write ‘me too’ as a reply to this tweet.”¹⁴ The tweet was a reaction to sexual assault allegations against Harvey Weinstein that surfaced around this time.¹⁵ The impact was immediate, and there were more than 19,000,000 #MeToo tweets on Twitter in the year following the initial tweet from Milano.¹⁶

Since 2017, the revival of the #MeToo movement has driven positive change.¹⁷ Training to prevent sexual misconduct¹⁸ in various industries has become more readily available.¹⁹ More people are speaking out when they witness sexual misconduct: 17% of Americans say sexual misconduct is a serious problem at their workplace—compared to 32% in 2017.²⁰ While there has been generally encouraging shift, some companies still have not made changes and continue to silence survivors and witnesses of sexual misconduct in the workplace.²¹

B. A Reaction to #MeToo: The Speak Out Act

Pre-dispute non-disclosure agreements (“NDAs”) are typically used to protect trade secrets and intellectual property.²² However, pre-dispute NDAs are also used in a broader sense when signed at the beginning of employment—to silence survivors of sexual misconduct in the workplace and hide misconduct on the job.²³ For example, Gretchen Carlson and Julie Roginsky, both former Fox News employees, were forced to sign NDAs when they were hired that ultimately prohibited them from talking publicly and among themselves about their harassment experiences.²⁴ Per the Forbes article, Carlson stated that “I would have been violating the NDA to go into [Roginsky]’s office at Fox and say, ‘Hey, has anything ever happened to you with Roger Ailes?’”²⁵ The revival of the #MeToo movement in 2017 put pressure on Congress to take a stand to protect survivors of sexual misconduct in general, especially targeting misconduct in the workplace.²⁶

The Speak Out Act was introduced by the House of Representatives on June 24, 2022.²⁷ If passed, the Speak Out Act will limit the judicial enforceability of pre-dispute NDAs relating to sexual assault and sexual harassment cases.²⁸ The proposed bill includes findings that establish the need for this legislation, including that sexual harassment and sexual assault are pervasive issues in the workplace.²⁹ 81% of women and 43% of men have experienced sexual harassment and/or sexual assault in their lives, and an estimated 87 to 94% of women who face sexual harassment in the workplace do not file a formal complaint.³⁰ The fact that workplace sexual harassment disproportionately effects not only women, but an even higher rate of women of color is an alarming statistic when thinking about these voices getting silenced in the workplace due to sexual misconduct.³¹ Ultimately, pre-dispute NDAs silence survivors and witnesses in the workplace while protecting perpetrators and allowing abuse to continue.³²

III. Discussion

With high bipartisan support in both chambers of Congress, the Speak Out Act would have an immediate impact on workplaces that (1) do not have bylaws allowing survivors and witnesses to speak out or (2) are not in a jurisdiction with a similar state law in place like the Speak Out Act.³³ With the potential passage of the Speak Out Act, coupled with the recent ban on mandatory arbitration in sexual misconduct cases,³⁴ this could be a huge stride for companies fostering a more honest, trustworthy, and inclusive workplace environment. In turn, this will benefit companies financially because these workplace culture dynamics have on areas such as happiness, productivity, engagement, and low-stress levels.³⁵

Trust and honesty in the workplace are tied to productivity.³⁶ “High-trust” companies, compared to those at “low-trust” companies are 74% less stressed, have a 50% higher productivity rate, and a 76% higher engagement rate.³⁷ If employees in the workplace trust their colleagues, bosses, and human resources department to do their jobs and protect them, the output for the company in general will produce work that benefits the business’ profitability and growth in the long run.³⁸ And quite frankly, that is what companies and shareholders care about at the end of the day—profitability and growth.³⁹ This change in law will reach companies that were using pre-dispute NDAs and force them to act in a way that maintains an orderly and inclusive workplace, which will in turn benefit profitability and growth in the long run.⁴⁰

Aside from the benefits a company will reap, the Speak Out Act is a monumental step to create a safe workplace for all, not just men in power. The Speak Out Act is beneficial because of the reasons listed in the bill, and the idea of “productivity and profitability” does not overshadow the main reason why this bill needs to be passed—to bring about inclusivity and safety for survivors and witnesses.

IV. Conclusion

The #MeToo movement was and still is an important shift in how people view sexual misconduct in life generally.⁴¹ Without Burke’s initial work, and the rise in popularity in 2017 with the #MeToo hashtag, there may not be these changes in policies and views such as the Speak Out Act.⁴² The Speak Out Act is an important step for fostering a workplace environment of being open, not silenced.⁴³ The benefits of a trustworthy and inclusive workplace are something that undeniably enhance life for the employees and the employer.⁴⁴ However, the need for change is still apparent, and the problem will not be completely erased with one piece of legislation. Burke’s work needs to continue to live on and strive to reach all areas of human life in order to not only hold those accountable that commit sexual misconduct, but to minimize the number of instances as well.

Cover Photo by Duncan Cumming on Flickr licensed under CC BY-NC 2.0

Haley C. Dominique

Haley Dominique received her bachelor's degree in Business Administration (2020) and a Graduate Certificate in Public Administration (2021) from Ball State University. She is interested in legal issues pertaining to mental health, economic development, sports, and social media.

References

1
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3
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4
Lady Gaga (@ladygaga), Twitter (Oct. 15, 017, 6:57 PM), https://twitter.com/ladygaga/status/919698717392887808 [https://perma.cc/76EX-HUTL].
5
Gabrielle Union (@itsgabrielleu), Twitter (Oct. 15, 2017, 7:18 PM), https://twitter.com/itsgabrielleu/status/919704129295077377 [https://perma.cc/7XCM-M4TR].
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9
Abby Ohlheiser, The Woman Behind ‘Me Too’ Knew the Power of the Phrase When She Created It – 10 Years Ago, Wash. Post (Oct. 19, 2017), https://www.washingtonpost.com/news/the-intersect/wp/2017/10/19/the-woman-behind-me-too-knew-the-power-of-the-phrase-when-she-created-it-10-years-ago/ [https://perma.cc/LEY4-82EX].
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12
Kerri Lee Alexander, Tarana Burke, Nat’l Women’s History Museum, https://www.womenshistory.org/education-resources/biographies/tarana-burke [https://perma.cc/GK88-KH58] (last visited Oct. 22, 2022). Accrediting Burke’s work as the original source of this phrase and idea is important because almost a decade after the phrase was coined, a white woman made #MeToo popular without initial recognition to Burke. Ohleheiser, supra note 9. Milano did not credit Burke for #MeToo in her initial tweet. However, after doing research, she ultimately gave Burke credit and encouraged others to research the roots of the movement. See Alyssa Milano (@Alyssa_Milano), Twitter (Oct. 19, 2017, 9:15 AM), https://twitter.com/alyssa_milano/status/921001844318466049?lang=en [https://perma.cc/7AC8-EGR3].
13
See Milano, supra note 3. The photo, a screenshot of text, stated in part: “If all the women who have been sexually harassed or assaulted wrote ‘Me too.’ as a status, we might give people a sense of the magnitude of the problem.” Id.
14
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Adam Reiss & Tim Stelloh, More Than Two Years After His Rape Conviction, Harvey Weinstein is Granted an Appeal, CNBC (Aug. 24, 2022), https://www.cnbc.com/2022/08/24/more-than-two-years-after-his-rape-conviction-harvey-weinstein-is-granted-an-appeal.html [https://perma.cc/C792-2PJW]. Weinstein was convicted in 2020 on two charges of criminal sexual acts—first degree and third-degree rape. He was sentenced to twenty-three years in prison but was granted an appeal. Id.
16
Monica Anderson & Skye Toor, How Social Media Users Have Discussed Sexual Harassment Since #MeToo Went Viral, Pew Rsch. Ctr. (Oct. 11, 2018), https://www.pewresearch.org/fact-tank/2018/10/11/how-social-media-users-have-discussed-sexual-harassment-since-metoo-went-viral/ [https://perma.cc/US74-Y6XV].
17
Four Years Later, Most Believe Women Have Benefited from the #MeToo Movement, AP-NORC at the Univ. of Chi. (Oct. 15, 2021), https://apnorc.org/projects/four-years-later-most-believe-women-have-benefited-from-the-metoo-movement/ [https://perma.cc/S2YY-X783].
18
What is Sexual Misconduct?, Clark Coll., https://www.clark.edu/about/governance/policies-procedures/title-IX/what-is-sexual-misconduct.php [https://perma.cc/7UZD-9HRE]. The phrase sexual misconduct will be used hereinafter as a broad term that encompasses sexual assault and sexual harassment. Id.
19
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20
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21
Kim Elsesser, Senate Aims to End Silencing of Sexual Harassment Victims with New NDA Bill, Forbes (July 14, 2022), https://www.forbes.com/sites/kimelsesser/2022/07/14/senate-aims-to-end-silencing-of-sexual-harassment-victims-with-new-nda-bill/?sh=9c368de28633 [https://perma.cc/7PWJ-U3E4].
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27
All Actions, H.R.8227 – Speak Out Act, congress.gov, https://www.congress.gov/bill/117th-congress/house-bill/8227/all-actions?overview=closed#tabs (last visited Oct. 22, 2022).
28
Speak Out Act, S. 4524, 117th Cong. § 4(a) (2022). As mentioned above, a substantially similar bill was previously introduced in the House of Representatives in June 2022. Speak Out Act, H.R. 8227, 117th Cong. (2022).
29
S. 4524 § 2(1).
30
Id. § 2(2)-(3).
31
Maria Patrick & Olympia Feil, Black Women Disproportionately Experience Workplace Sexual Harassment, New NWLC Report Reveals, Nat’l Women’s L. Ctr. (Aug. 2, 2018), https://nwlc.org/press-release/black-women-disproportionately-experience-workplace-sexual-harassment-new-nwlc-report-reveals/ [https://perma.cc/449J-DAQS].
32
S. 4524 § 2(1).
33
Chris Marr, States Expand Bans on Nondisclosure Pacts Beyond #MeToo Claims, Bloomberg Law (July 7, 2022, 5:00 AM) https://news.bloomberglaw.com/daily-labor-report/states-expand-bans-on-nondisclosure-pacts-beyond-metoo-claims [https://perma.cc/WCU5-KTLK]. States like Washington and California already have laws that ban employers from imposing contracts (pre-dispute NDAs) that prevent employees from talking about sexual harassment. Id.
34
See Mariel Padilla & The 19th, ‘They Want You to Feel Alone’: New Bill Aims to Ban NDAs for Victims of Workplace Harassment, Fortune (June 29, 2022), https://fortune.com/2022/06/29/bill-ndas-sexual-harassment-abuse-workplace-companies/ [https://perma.cc/QZ6Q-M4Z5]. The ban on mandatory arbitration was passed in February by the House and Senate. This bill allows survivors of workplace sexual misconduct to have the opportunity to go in front of a judge and potentially a jury rather than forcing arbitration. Id.
35
Abbey Lewis, Good Leadership? It All Starts with Trust., Harv. Bus. Publ’g (Mar. 4, 2021), https://www.harvardbusiness.org/good-leadership-it-all-starts-with-trust/ [https://perma.cc/2S84-CGX2].
36
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37
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38
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39
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40
See Daniel Hemel, How Nondisclosure Agreements Protect Sexual Predators, Vox (Oct. 13, 2017), https://www.vox.com/the-big-idea/2017/10/9/16447118/confidentiality-agreement-weinstein-sexual-harassment-nda- [https://perma.cc/QC4Y-Z7QQ].
41
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42
History & Inception, supra note 1.
43
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44
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