Professors: With #MeToo movement, a need for more than legal protections

Elon Law scholars Catherine Dunham and David Levine believe it will take the courage of young people to speak out against demeaning comments by their peers and colleagues to fully attack sexual harrassment in the workplace.

Combating sexual harassment can’t be ended through enforcement or changes to the law alone, according to two Elon Law scholars, but rather young people must also muster courage to speak out when they witness behavior that creates barriers to success for women.

And that is admittedly a tough thing to do, especially when power dynamics can affect your career.

The professors – one who studies gender discrimination and unconscious bias, the other with experience practicing employment and labor law – delivered a lunch hour presentation on Jan. 31, 2018, to students and colleagues seeking a deeper understanding of the #MeToo movement and the complexities that exist in changing workplace cultures.

Professor Catherine Dunham and Associate Professor Dave Levine were candid in their presentations: the law clearly protects against crimes like sexual assault. However, they said, it does not always protect women from all harassment since “you can act like a jerk in the workplace but not violate the law.”

That doesn’t mean there aren’t longstanding problems in some work environments. Discrimination might take the form of sexually charged male behavior that creates a hostile work environment – “I never cease to be shocked at how often that still happens,” Dunham said – or it could harm women in a way different than men even if a workplace policy appears neutral.

But the law isn’t always a solution. Levine pointed out that society has yet to agree on what is meant by “equality.” Is it equality of treatment regardless of immutable characteristics like sex and race? Or is it equality of achievement? “Is there only one definition?” he said. “For example, if everyone is being harassed in the workplace, they are ‘equal.’”

So until that definition is settled, he said, the law can only go so far in protecting workers. Therefore, young people – and young lawyers who will shape the legal profession in the decades ahead – must take the lead in countering abuse by confronting harassment when they see it.

The afternoon "Faculty Development Hot Topics" program for more than two dozen students, educators and staff in Room 204 had originally been scheduled for Jan. 17 but was moved due to winter weather that had closed the school.

About the Professors:

Catherine Dunham is an expert in the law related to civil procedure and civil litigation. She teaches and writes in the area of federal civil procedure and is co-author of the text “Skills and Values: Civil Procedure” published by Lexis. She has authored articles on procedural doctrine and the Federal Rules of Civil Procedure and regularly contributes the Federal Rules of Civil Procedure update to the American Association of Law Schools Civil Procedure Section Newsletter.

In addition, Dunham is an expert in North Carolina Civil Procedure, teaching North Carolina Civil Procedure for Kaplan and serving as a co-author on “North Carolina Civil Procedure Deskbook”, a forthcoming publication from Carolina Academic Press. Dunham serves on the faculty of the National institute for Trial Advocacy and teaches in regional, national and international advocacy programs.

David S. Levine is the Jennings Professor and Emerging Scholar at Elon Law. An affiliate scholar at the Center for Internet and Society at Stanford Law School, Levine also was a fellow at Princeton University's Center for Information Technology Policy from 2014-2017. He is the founder and host of Stanford University’s KZSU-FM “Hearsay Culture,” an information policy, intellectual property law and technology talk show. He was previously a resident fellow at CIS, legislative aide in the New York State Assembly, assistant corporation counsel for the City of New York and in private practice in Manhattan.

Levine’s scholarship, which has been published in several law reviews, focuses on the operation of intellectual property law at the intersection of technology and public life, specifically information flows in the lawmaking and regulatory process and intellectual property law's impact on public and private secrecy, transparency and accountability.