Monday, July 16, 2018

Ballard v. AT&T Mobility: Has #MeToo lowered the bar for unlawful sexual harassment?

In Ballard v. AT&T Mobility, Inc., No. 15-8808(MAS)(LHG) (D.N.J. July 11, 2018), plaintiff Taylor Ballard argued, among other things, that her sexual harassment claim should be revived based on the emergence of the Me Too movement since Judge Michael Shipp had awarded summary judgment to the defendant.

Like a lot of legal analysis, the question of whether sexual harassment is unlawful is governed in large part by standards of reasonableness. And these standards can change based on broader societal perceptions. What someone might not have reasonably perceived to be harassing in the 1950s might nevertheless be perceived as harassing in 2018. If you've ever watched the "Honeymooners," you may remember that the character Ralph Kramden would often threaten to send his wife "to the moon." Apparently, that kind of line was funny 60 years ago, but it makes us cringe nowadays.

Whether Me Too has ushered in that kind of change over such a short period of time is questionable. But it's almost certainly true that Me Too has had a significant impact on how American society views sexual harassment. Sexual harassment claims must be evaluated in context, and social perceptions are part of the context. For example, societal views about sexual harassment could be relevant in assessing whether a plaintiff reasonably perceived conduct to be hostile or offensive; whether the alleged harasser should have known that his conduct was offensive to the victim; and whether the employer took harassment seriously enough.

Still, Ballard had complained about conduct that occurred well before the start of the Me Too movement. It's not surprising then that, even though Judge Shipp acknowledged that the plaintiff's assertions about the conduct of corporations before and after the start of the Me Too movement was not entirely unsupported by evidence, he concluded that none of the evidence was relevant to this case.

This blog reflects the views solely of its author. It is not intended, and should not be regarded, as legal advice on how to analyze any particular set of facts.