The 2018 midterm elections represented the first electoral referendum of the #MeToo era.
Even so, it also reveals how far women are from achieving parity in politics – they are projected to hold barely more than a fifth of seats in the House and Senate. For comparison, that’s less than in Iraq, where the post-Saddam Hussein Constitution sets a 25 percent minimum for female representation in the national assembly.
In a way, it reflects the ways in which the #MeToo movement, for its many achievements, has thus far stalled at the federal level. After a year of headlines involving sexual misconduct in a variety of industries, Congress has not passed a single piece of legislation on harassment.
With Democrats poised to take over the House but not the Senate, the question is now whether Congress will finally roll up its sleeves to tackle the root causes of the #MeToo crisis.
In many ways, the #MeToo crisis is similar to the financial collapse of 2008.
As I argued in a recent law review article, the #MeToo crisis resulted from a similar slow buildup – companies failed to adequately respond to workplace harassment, permitting harassers to continue to rise up the ranks, while victims saw their careers sidelined.
But in both cases, it was about more than just bad people making bad choices and covering their tracks. Business decisions, like board games, are constrained by the rules of the game. If players figure out a way to “hack” the rules or decide there is more to be gained by breaking them, their behavior probably won’t change without changing the rules.
Just as brokers peddling subprime loans were enabled by bad business practices and regulatory gaps, employer indifference to harassment was made possible by out-of-date harassment laws that gave companies a free pass.
The #MeToo crisis also raises concerns about how companies handle discrimination complaints and whistleblowers – since internal processes for doing so are often the same as for harassment.
In some ways, though, the #MeToo crisis succeeded where the response to the financial crisis fell short.