Has the Weinstein Reversal Hurt the #MeToo Movement?

Has the Weinstein Reversal Hurt the #MeToo Movement?

7.8.2024

By Tara Toevs Carolan and Morghan Leia Richardson

Four years ago, when a New York jury convicted Harvey Weinstein of rape, the #MeToo movement hailed the verdict as long-overdue justice for a producer who had a reputation in the movie industry as a sexual predator. But now that New York’s highest court, the Court of Appeals, has overturned that conviction on grounds that the lower court should not have allowed the prosecution to cite past claims of sexual abuse that never resulted in formal charges, there are concerns that the #MeToo movement might be less of a force for stronger laws to protect women from sexual harassment and abuse. Judging by what has happened so far in New York, however, the answer would be no.

#MeToo Has an Impressive Record

#MeToo was ignited in 2017 when several Hollywood actresses went public with their claims that Weinstein had abused them. Not long after, more women in the industry came forward with similar claims of past abuses but had remained silent out of fear that Weinstein could ruin their careers. Then, as lurid details came out at Weinstein’s trials in both New York and California, #MeToo became a de facto national movement, reshaping the legal landscape in many states and practice areas. According to Politico, as a direct result of the movement, states introduced a total of 2,324 bills, of which 286 passed into law between 2017 and 2021.¹ These laws focused on sexual harassment, including topics like anti-harassment training, nondisclosure agreements and government officials being held accountable. In addition to changes in areas of employment law, the #MeToo movement has had some impact on the areas of family and criminal law.

New York’s Legislative Response To Combat and Prevent Sexual Assault, Harassment

New York State led the charge on April 12, 2018, when New York State Governor Andrew Cuomo signed into law the 2018-2019 New York State budget imposing significant new obligations on private and government employers aimed specifically at combating and preventing sexual harassment in the workplace.

Historically, separation and settlement agreements in the employment context have commonly included obligations of confidentiality and non-disparagement protections running to the employer. Under the 2018-2019 New York State budget, the availability of these provisions in agreements containing waivers of claims of sexual harassment were restricted to very limited circumstances and only where the restrictions were the complainant’s preference.

The 2018-2019 New York State budget also amended the New York State General Obligations Law and Civil Practice Law and Rules prohibiting nondisclosure clauses in settlement agreements, “the factual foundation for which involves sexual harassment,” unless it is the “complainant’s preference” to include a confidentiality provision. With respect to ensuring and documenting that it is a complainant’s preference to include a confidentiality provision, any nondisclosure language was required to be provided to all parties to the agreement and the complainant was to be given 21 days to consider the clause, its terms and conditions and to indicate the complainant’s agreement to the inclusion of the clause or mandate its removal from the agreement. Complainants were further provided with a seven-day revocation period to revoke a signed confidentiality preference agreement.

The 2018-2019 New York State budget also amended the CPLR to ban mandatory arbitration of sexual harassment claims. The amendment prohibits provisions in an employment agreement requiring that the parties submit sexual harassment claims to mandatory binding arbitration.

New York City followed suit less than a month later, on May 9, 2018, when New York City Mayor Bill de Blasio signed into law the Stop Sexual Harassment in New York City Act, which expanded discrimination protections under the New York City Human Rights Law, mandated anti-harassment training and required employers to post notices regarding sexual harassment prevention policies.

New York State laws also expanded protections against sexual harassment under the New York State Human Rights Law to non-employees, including contractors, subcontractors, vendors, consultants and other persons providing services pursuant to a contract. It also mandated annual anti-sexual harassment training for all employees and required employers to adopt and disseminate written anti-sexual harassment policies.

On Nov. 17, 2023, Gov. Kathy Hochul expanded New York State’s restrictions with respect to nondisclosure clauses from claims limited to sexual harassment to claims of harassment (including sexual harassment), discrimination and discriminatory retaliation.²

Additionally, while settlement and separation agreements in the employment context have included a requirement that the complainant pay liquidated damages or forfeit all, or part of, the monies received as consideration under the agreement, in the event of a breach of the agreement including breach of a nondisclosure provision, under a recent amendment to New York State law, no release agreement involving a claim of discrimination, harassment or retaliation will be enforceable if the agreement includes either of these remedies for breach of a confidentiality and/or non-disparagement provision. In addition, a release agreement will not be enforceable if it contains an affirmative statement, assertion or disclaimer by the complainant that the complainant was not subject to unlawful discrimination, harassment or retaliation.

Additionally, to the extent it is a complainant’s preference to have a confidentiality provision in a separation or settlement agreement, the previously required non-waivable 21-day period for the employee to consider if confidentiality was the employee’s preference, with a seven-day revocation period to follow, may now be waived but only in prelitigation resolutions. The law was not amended for release agreements involving settlement of claims once litigation commences. The 21-day review period and the seven-day revocation period remain non-waivable once a litigation alleging claims of unlawful discrimination, harassment or retaliation is commenced.

The confidentiality preference protection previously only covered employees. It now also extends to independent contractors.

Beyond the Workplace and Into Family and Criminal Courts

Changing the discussion around workplace harassment has slowly opened the door to discussing gender stereotypes in the family courts in both custody and domestic violence matters.

In New York, there is legislation being put forward named Kyra’s Law (2021-S7425), wherein the court must consider the effect of domestic violence on the best interests of the child. The legislation is named after a Long Island child who was murdered by her father during a court-ordered visitation. In a report in April 2024 on family court reform by the heads of the Senate Judiciary Committee and Committee on Children and Families, the findings detailed a family court system that is “dysfunctional, unacceptable and requiring deep re-examination.” The legislation would require courts to conduct a review of any findings or allegations of child abuse, domestic violence, heightened danger and risk of lethality before issuing permanent and initial orders of custody or visitation, or successive temporary orders of custody or visitation. The bill includes a series of considerations that should be reviewed, including allegations of violence, a history of violence perpetrated by either party, police reports, use or threats to use a weapon, coercive control, etc. Should the court determine limitations or restrictions of a party’s custody, visitation or contact with the child are necessary, the court would be required to set forth conditions in the order that prioritize the avoidance of significant risk to the child’s safety.

Additional New York legislation has been put forward to help domestic violence victims protect their immediate family members from abuse. Melanie’s Law (S6288/A6026) is named for the adult daughter of a domestic violence victim, who was murdered by her mother’s ex-boyfriend when her mother’s restraining order did not extend to include her, as it would have had she been under 18 years. Melanie’s Law would expand orders of protection to immediate family members or household members of the victim, regardless of age.

Civil Lawsuits for Victims and Survivors of Sexual Abuse and Sexual Assault

New York State was also at the forefront of opening up lookback periods for adult survivors of sexual abuse and sexual assault across the country.

In 2022, Gov. Hochul signed the Adults Survivors Act, which allowed a temporary one-year lookback for adult survivors of sexual assault to file lawsuits against their assailants, regardless of when the assault occurred. Between November 2022 and November 2023, over 3,000 lawsuits were filed as a direct result of the law, according to the New York Times, which reported that politicians, including New York City Mayor Eric Adams, and celebrities, including Sean “Diddy” Combs, Columbia University hospitals and Riker’s Island all had lawsuits filed against them as a result. The listing of Sean “Diddy” Combs stands out because of a recent video showing him brutally beating a former girlfriend in a California hotel lobby in 2016. Combs escaped criminal charges for that attack because of California’s statute of limitations but given New York’s extended timelines for filing lawsuits against abusers, he will not escape civil liability for alleged past actions here.

Conclusion

While great strides have been achieved with protections being broadened inside and outside of the workplace and home, the work is not nearly finished, by any means. Additional changes to laws across the nation, and even the globe, are expected to continue.

Tara Toevs Carolan is a partner at Tarter Krinsky & Drogin, where she advises employers on employment law, including litigation and discrimination complaints before the New York State and federal courts and discrimination charges before the U.S. Equal Employment Opportunity Commission, the New York State Division of Human Rights and the New York City Commission on Human Rights.

---

Morghan Leia Richardson is a partner at Tarter Krinsky & Drogin, where she co-chairs the Matrimonial & Family Law Department and focuses her practice on divorce and family law. She has fought complex divorce cases for clients who include a Nobel Prize-winning economist, a prominent music magazine editor and one of the spouses from the hit television show “The Real Housewives of New York.”

The views expressed here are solely those of the authors and not those of Tarter Krinsky & Drogin.

The #MeToo Movement and Federal Legislation

The #MeToo movement is reshaping the national legal landscape through its impact on Congress. Here is a look at what has happened so far.

• The U.S. Congress and several state governments acted by passing laws prohibiting mandatory arbitration, nondisclosure, and non-disparagement clauses in an effort to expand transparency around sexual harassment and assault and combat workplace sexual harassment, explored more fully below.

• The U.S. Congress also legislated similar requirements prohibiting mandatory arbitration of disputes of sexual harassment or assault and pre-dispute restrictions concerning confidentiality and non-disparagement provisions in agreements.

• On July 16, 2021, the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (H.R. 4445) was originally introduced to the U.S. House of Representatives. It was signed by President Joseph Biden on March 3, 2022 and became Public Law No. 117-90. This law precludes employers from requiring employees to arbitrate disputes related to sexual assault or sexual harassment, which limits the disputes from being reported and heard publicly in a court.

• On July 13, 2022, U.S. Senator Kristen E. Gillibrand (D-NY) introduced the Speak Out Act (S.B. 4524), which was signed by President Biden and became Public Law No. 117-224 on Dec. 7, 2022. This is a federal act to limit the judicial enforceability of pre-dispute nondisclosure and non-disparagement contract clauses relating to disputes alleging nonconsensual sexual acts or contact or sexual harassment.

• Of course, #MeToo continues to influence different states to reshape their own legal landscapes with new protections against sexual abuse. For example, California has one of the country’s first laws explicitly prohibiting coercive control in intimate partner relationships (S.B. 1141). The law allows domestic violence victims to use descriptions of psychologically damaging and abusive behavior in family court and criminal court hearings and trials and adds “coercive control” to the Family Code. Coercive control includes isolating the victim from friends, relatives or other support, depriving the victim of basic necessities, controlling the victim’s communications, daily behavior and finances, as well as behaviors that cause severe emotional distress.