Where Feds Fail on #MeToo, States May Step In


• Congress hasn’t responded to the #MeToo movement, Justice Ruth Bader Ginsburg notes
• New suit by N.Y. attorney general against embattled movie executive Harvey Weinstein shows states might be able to fill void
• Suit brought under same expansive power that allowed N.Y. attorney general to sue over Trump University


Justice Ruth Bader Ginsburg faulted Congress for not responding to the #MeToo movement, which has shined a light on sexual harassment in the workplace, during an interview Feb. 11 at Columbia University in New York.

In the meantime, a New York lawsuit over embattled movie executive Harvey Weinstein suggests that states are ready to fill the void.

Ginsburg said right now it’s hard for Congress to even keep the government open. The federal government has already been briefly shutdown twice this year over spending and immigration disagreements in Congress.

But Congress will get past this time of inaction, Ginsburg said.

Pervasive Harassment

The New York attorney general’s office Feb. 11 sued Weinstein and his company for “vicious and exploitative mistreatment of company employees,” the office said in statement.

The allegations of pervasive sexual harassment against Weinstein triggered the #MeToo movement, in which countless individuals have come forward with their stories of such harassment.

Weinstein made several “quid pro quo offers or demands of sexual favors in exchange for career advancement” or “to avoid adverse employment consequences,” the statement said.

In 2014 and 2015, Weinstein “exposed himself to a female employee and made her take dictation from him while he leered at her, naked on his bed,” the statement said. That same employee described how Weinstein “would insist that she sit next to him in the back seat of his chauffeured vehicle and would place his hand on her upper thigh and buttocks near her genitalia and rub her body without her consent.”

But it’s not the harassed employees suing Weinstein in this latest suit. Instead, the state is relying on the attorney general’s expansive power “to investigate and to bring an enforcement against ‘persistent fraud or illegality in the carrying on, conducting, or transaction of business,’” Jones Day partner Harold K. Gordon, New York, wrote in 2016 on the breadth of the A.G.’s powers.

Broad Powers

Ginsburg said she’s putting her faith in the millennial generation to address the problems brought to light by the #MeToo movement.

Perhaps she should put faith in states to respond to widespread claims of sexual harassment, too.

N.Y. Attorney General Eric Schneiderman’s lawsuit seeks “to remedy a years-long gender-based hostile work environment, a pattern of quid pro quo sexual harassment, and routine misuse of corporate resources for unlawful ends that” existed for at least a dozen years, the complaint says. It also seeks to hold Weinstein and the company accountable “for repeated, persistent, and egregious violations of law, to vindicate the rights of” the company’s employees, “and to prevent future recurrence of such misconduct.”

The suit is brought under N.Y. Executive Law 63(12), which, in recent years, “the Attorney General’s office, and often the courts, interpret very broadly,” Gordon said in 2016.

For example, the attorney general’s office has used that authority in high-profile cases to halt fantasy sports websites and force a $25 million settlement with Trump University.

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at krobinson@bloomberglaw.com

To contact the editor responsible for this story: Jessie Kokrda Kamens atjkamens@bloomberglaw.com