Sexual Harassment: New Laws That Would Help

by Terri Gerstein, Leadership in Government Fellow, Open Society Foundations

*This piece was originally posted on On Labor.

We are experiencing a watershed moment in relation to sexual harassment: boldface names fall daily, and women are speaking up as never before. This is one of those moments when norms change, presenting a tremendous opportunity. Proposals that seemed unrealistic last year could now be taken seriously in the political sphere.
In the Guardian last weekend, Sharon Block and I outlined an agenda for bringing sexual harassment to light sooner, punishing it appropriately, and above all, preventing it in the first place. In the interest of furthering the conversation, this post elaborates on those ideas, and also aggregates several noteworthy articles proposing thoughtful reforms.
Along with the long-term work of building strong worker organizations, the following are some government policies to consider. Some of them would also serve to strengthen workers’ rights enforcement generally.
  1. Disallow non-disclosure agreements. The use of non-disclosure agreements in settlements involving workplace abuses should be limited, because of the broad public interests at stake (an idea I discussed in the Nation this spring). A bill proposed by New York State Senator Brad Hoylman would disallow settlement terms aimed at concealing details of harassment claims, as well as discrimination and wage and hour cases, a wise approach given the extent and public impact of workplace violations generally.
  2. Modify current anti-discrimination law. The 15-employee threshold for federal coverage should be reduced to cover more workplaces. In addition, the time frame for filing an EEOC charge should be extended beyond its current 180 days(or up to 300 depending on state and local agencies). By way of comparison, the FLSA’s statute of limitations is two years unless conduct is willful, and some state laws extend even further. Moreover, we have seen how long it takes many sexual harassment victims to come forward; a 180-day statute of limitations is plainly a mismatch with real world experience. Both of these suggested changes would require additional enforcement resources.
  3. Create strong penalties and qui tam or whistleblower statutes to enable and incentivize private lawyers to bring such cases, thereby also supplementing agency enforcement. Public agencies are resource-strapped, and enforcement by private plaintiffs plays a critical role. But the economics often don’t work for private lawyers, especially when it comes to low wage workers. Mandatory arbitration and class waiver agreements greatly exacerbate this situation, as Sharon Block and Celine McNicholas describe, because such agreements prevent individual sexual harassment and other cases from being aggregated into class actions, eliminating economies of scale. A qui tam or whistleblower law could go a long way to expand resources for public enforcement by enabling private lawyers to bring sexual harassment and other workplace justice cases. California’s Private Attorney General Act (PAGA) allows employees to file lawsuits to recover civil penalties on behalf of themselves, co-workers, and the state for labor law violations. False Claims Acts also allow whistleblowers in certain situations to sue on the government’s behalf and receive a portion of the recovery. States should consider passing laws, which would allow employees to sue on behalf of the state; for example, in New York, a legislative proposal called the Empowering People in Rights Enforcement (EMPIRE) Worker Protection Actwould deputize workers to enforce certain labor statutes on behalf of the state, with the state retaining control of the suit, and receiving the majority of damages.
  4. Require notification of government agencies when settlements occur. Despite those mandatory training videos, companies have proven unable to police themselves. Given this history, the government should have at least an oversight role when matters of public interest are resolved. This could be done in various ways. For example, settlement of FLSA lawsuits generally requires court approval or review by the federal labor department; a similar structure could be established at the city, state, or federal level for discrimination and harassment settlements. Another model could be the Class Action Fairness Act, which requires that notice of any proposed settlement in a class action lawsuit be provided to the appropriate state officials who regulate an employer’s business, with state Attorneys General as a default. Either of these approaches would give key government actors notice and the ability to step in if a pattern of violations existed.
  5. Strengthen anti-retaliation laws. Usually, workers – even well-paid professionals – are afraid to report labor law violations of all kinds because they fear retaliation. Consider Angelina Jolie, who strides boldly into war-torn countries and refugee camps, yet did not denounce Harvey Weinstein until multiple public allegations were made by others. If Angelina Jolie was initially quiet, how much harder can it be for rank-and-file or low wage employees to speak up? Workers who report lawless behavior should be praised, not punished. They protect not only themselves, but also their co-workers. Accordingly, when employers retaliate against workers for reporting violations, there must be harsh and meaningful penalties and damages. And anti-retaliation laws should address whistleblowing’s impact on future employment by explicitly outlawing blacklisting, and by barring reprisals not only by the employer but also by “any other person,” as New York’s anti-retaliation labor law.
  6. Criminally prosecute workplace violations, including sexual assault, when appropriate. Finally, when crimes occur, the perpetrators should be prosecuted. Much of the conduct coming to light is, frankly, rape or sexual assault. True, the crime scene is the workplace, which may seem unorthodox to prosecutors: it may feel, in some inarticulable way, like a civil case, and the victims may be reluctant witnesses. Similar challenges once protected domestic abusers from prosecution – after all, domestic violence occurs in the home. Yet prosecutors now fully embrace prosecution of domestic violence as part of their mission — just as they should now embrace addressing workplace abuses as well. A quick Google search reveals a growing list of arrests: an ice cream store owner in Colorado; a heating oil company owner in Connecticut; a restaurant owner in the Pittsburgh area. A few well-publicized prosecutions in each state would go a long way toward educating the public, empowering workers, and deterring future violations.
In addition to the ideas I’ve outlined above, a number of writers have advanced insightful proposals for an effective policy agenda. Sharon Block has written hereabout the need for higher penalties and more enforcement resources, and both she and Andrew Strom highlight the need for unions and more democratic workplaces. Mark Joseph Stern in Slate suggests that statutes are needed to counteract years of problematic Supreme Court jurisprudence, and Sandra Sperino and Suja A. Thomas in the New York Times point to the need for statutory revisions to correct overly narrow approaches by federal courts over time. Industry-specific solutions have been suggested too, including eliminating the tipped wage in restaurants, and creating specific protections for hotel housekeepers, including a panic button, as in a new Chicago law.
There is no silver bullet to end workplace abuse, and any successful approach should combine some or all of the measures described above. The important thing now is to seize the moment and take concrete action so that women can do their jobs in peace.


Supreme Court will decide if women can join together to fight sexual harassment at work

by Celine McNicholas, Labor Counsel, Economic Policy Institute and Sharon Block, Executive Director of the Labor and Worklife Program, Harvard Law School

After the news that Hollywood producer Harvey Weinstein had been sexually harassing and assaulting women in the movie industry for decades, millions of women shared their stories with the hashtag #metoo. The social media campaign shined a light on a fact that to many women: sexual harassment is a daily fact of life in the workplace. Many American corporations foster—or at least tolerate—widespread, egregious sexual harassment of their workers, even all these years after U.S. law first recognized sexual harassment as a form of sex discrimination. As the Supreme Court considers the first case of its term, National Labor Relations Board v. Murphy Oil, we hope they have read the stories about Weinstein, Bill O’Reilly and other men, as well as the millions of people who spoke up online.

Just last week, a poll conducted by NBC News and the Wall Street Journal found that 48 percent of currently employed women in this country say that they have personally experienced an unwelcome sexual advance or verbal or physical harassment at work. And, while many corporations have announced zero-tolerance policies for harassment, employers are increasingly preventing workers who experience sexual harassment to join together to seek justice

Today, 24.7 million American workers have been forced to sign contracts that, as a condition of employment, require them to waive their rights to joining a class action lawsuit to address sexual harassment and other workplace disputes—instead these workers must act alone to resolve what is often systemic violations of employment protections. The National Labor Relations Board has determined that these arbitration agreements violate workers’ right under the National Labor Relations Act to join together for “mutual aid and protection.” Business interests—and the Trump administration—disagree. In Murphy Oil, the Supreme Court will decide whether workers have the right to come together to protect themselves from workplace issues like sexual harassment. The case could not be more relevant, or present the Justices with two more starkly divergent options.

If the Justices side with Trump and big corporations, women across America will be forced to go it alone when they are victimized and harassed. This means that a woman whose boss just threatened to fire her if she refuses to perform sexual favors (1) has to find a lawyer on her own, (2) is prevented from bolstering her credibility by involving coworkers who have endured the same treatment, and (3) has to subject herself to sole scrutiny of the action. As recent revelations demonstrate, in many workplaces this is not a one-off experience, but is instead a systemic problem. Prohibiting women and men from collectively addressing harassment and forcing them to go it alone creates an obstacle to pushing for systemic change, which means that the problem is likely to continue.

If the Justices side with the NLRB and the working people they represent, that woman can seek the support of her coworkers, making it easier to find a lawyer to take the case and present the pattern that gives an accurate picture of the workplace. From Rosa Parks to Lily Ledbetter to the brave women in the #metoo campaign, women have recognized the power of community to effect real change. The argument in Murphy Oil could not present a more stark choice for the Justices—a choice between a future where corporations can run roughshod over the rights of workers or where women and men can effectively seek justice.

The Supreme Court has a chance to restore a critical right to women at work

by Marni von Wilpert, Associate Labor Counsel, Economic Policy Institute

*This blog was originally published on EPI's blog

In 2017, the nation has been publically discussing what many women have known privately for years —there is still a vast amount of sexual harassment and gender discrimination in America’s workplaces. The revelations about Harvey Weinstein are the latest example of predatory sexual conduct against women at work, but the list of business leaders engaging in or condoning a culture of sexual harassment at work is staggering: Fox News chairman Roger Ailes and reporter Bill O’Reilly, Uber CEO Travis Kalanick, Amazon executive Roy Price, SoFi CEO Mike Cagney, BetterWorks CEO Kris Duggan, Epic Records chairman Antonio “L.A.” Reid … even the current U.S. president has admitted to sexual assault, and referred to his own daughter in sexually explicit and derogatory terms.  

Women are also paid less than men for the same work. The disparities are even worse for women of color. Relative to white non-Hispanic men, white non-Hispanic women are paid only 76 cents on the dollar, but Hispanic women are paid only 68 cents on the dollar and black women are paid only 67 cents on the dollar, even after controlling for education, years of experience and location.

So, what can women do in the face of all of this workplace discrimination? We could take our employers to court, seeking justice through a class-action lawsuit. But it turns out, many of us probably can’t anymore. That’s because many of us have signed away our rights to go to court: 56.2 percent of private-sector nonunion employees are subject to mandatory employment arbitration procedures.

The Supreme Court heard oral arguments on October 2 in Murphy Oil v. NLRB, a case that will have significant consequences for women’s abilities to fight back against discrimination and sexual harassment on the job. In this case, the Court will decide whether workers should have to sign away their rights to take their employers to court, just to obtain, or keep, their jobs.

Forced arbitration is a tool employers use to prevent their employees from seeking justice in court when disputes arise in the workplace. Arbitration is a form of private dispute resolution in which the employer and employees submit their dispute to a professional arbitrator (usually a private lawyer), who will hear both sides’ positions and decide who wins. The arbitrator’s decision is legally binding and generally non-appealable in court—meaning, it’s final. And usually, the arbitrator deciding the dispute is chosen by the employer.

Since these clauses are buried in the fine print of employment contracts, it’s estimated that at least 60 million workers in America are subject to forced arbitration and may not even be aware of it. Because of a clause in the contract they signed to get a job, workers must accept a process they often don’t understand, where the costs of seeking justice might be far higher, even as their chances of winning or obtaining a just award of damages are reduced dramatically. That’s right—employers and employees have to pay for this service. Arbitration is like a private, for-profit court system, where the employer usually gets to pick the judge.

By signing mandatory arbitration contracts, employees are waiving their fundamental, constitutional right to a trial by a jury of their peers. And many of the employees subject to mandatory arbitration were also forced to waive their right to be part of a class action lawsuit – out of the 60 million workers subject to mandatory arbitration, employers have required 24.7 million American workers to sign away their rights to address widespread violations through class-action lawsuits. That may not seem like a big deal, but many of society’s most important legal changes came from cases fought on the public stage of the United States Supreme Court. Imagine, if the Brown v. Board of Education plaintiffs, instead of having the public forum of the Supreme Court (and the eyes and ears of the nation) had to fight their cases behind closed doors with a private arbitrator. We would never have had that landmark decision, which confronted racial animus and changed the landscape of our country’s education system.

And when it comes to fairness on the job, it matters that workers are given their day in court—even when workers lose, because the nation still pays attention. Take Lilly Ledbetter’s case, for example, Ledbetter v. Goodyear Tire & Rubber Co. When she found out that she was earning significantly less than her male colleagues for doing similar work during her nearly 20 year career at Goodyear, she fought her case all the way to the Supreme Court. She lost, because of a flawed procedural requirement in the law—namely, she did not file suit within the 6 month deadline from the time her employer first started underpaying her, even though she didn’t know at that time that she was being underpaid. As Justice Ginsburg rightly pointed out in her dissent, it can take time for employees to discover pay discrepancies, particularly when comparative pay information is hidden from them.

But because Lilly Ledbetter spoke out in open court, the nation heard her story—and so did Congress. The first piece of legislation that President Obama signed was the Lilly Ledbetter Fair Pay Act of 2009, fixing the procedural problem in the law that was keeping women from their day in court. If she had been forced into a private arbitration instead, the nation never would have heard about Lilly Ledbetter, and our federal government never would have fixed the law to help women get justice for pay disparities going forward.

Indeed, our nation’s first pregnancy discrimination law was born after women workers tried and lost a case in the Supreme Court. In General Electric Company v. Gilbert, women workers filed a class action against General Electric for pregnancy discrimination 1976, and they lost when the Supreme Court held that pregnancy discrimination was not “sex discrimination” under Title VII. But because of the open court proceeding, the nation paid attention, and Congress acted quickly to pass the Pregnancy Discrimination Act in the wake of that court case.

The increased use of forced arbitration silences working men and women, and forces us to fight our battles quietly, and alone, behind closed doors. Just ask Gretchen Carlson, and the other women at Fox News who were prohibited from joining a class action for sex discrimination and sexual harassment, because of forced arbitration clauses in their employment contracts.

Congress can fix this problem by amending the Federal Arbitration Act to make sure employers can no longer force this system on their employees—and Senator Al Franken has offered the Arbitration Fairness Act of 2017 in Congress to do just that. Maybe, someday, our Congress will do the right thing for women, for workers, and for our nation’s system of justice in open court. Working people should not have to sign away their rights to hold a job.

After the New Yorker broke the Harvey Weinstein story, social media was flooded with thousands of messages, mostly from women, who used #MeToo  to indicate that they, too, have experienced sexual harassment or assault. Unless we stop allowing employers to force workers to sign mandatory arbitration agreements, social media may be the only place left where women can join together to speak out about sexual harassment in the workplace.