Outten & Golden: Empowering Employees in the Workplace

Some Good Things Are Blowing From the Windy City

August 3rd, 2006 | Paula Brantner

While Chicago may not be so windy these days, with the summer heat wave and all, there is some good news for workers blowing out of the Chicago area this week. Between the passage of a living wage ordinance for big-box workers, and an appeals court decision reinstating the case of a teen who was sexually harassed by her supervisor, some winds of change are coming out of the Windy City which could actually affect quite a few workers outside of Chi-town.

Last week, the Chicago City Council voted 35-14 to force mega-retailer big-box stores such as Wal-Mart to pay a living wage to their workers, of at least $10 an hour plus $3 in fringe benefits. (The minimum wage in Illinois is currently $6.50 an hour and the federal minimum is $5.15.) Wages would go up, starting July 1, 2007, to $9.25 an hour, plus $1.50 in benefits, for workers employed at least 10 hours a week in stores. (See Bloomberg article.) By the year 2010, companies with more than $1 billion in annual sales and stores of at least 90,000 square feet would be forced to comply with the proposed ordinance, if it is signed by the Mayor, Richard Daley. (See Los Angeles Times article.)

As you might imagine, Wal-Mart didn’t like this proposed law any more than it liked Maryland’s fair share bill. (See blog entry of July 25 for more information.) Wal-Mart’s Senior Vice President Michael Lewis said that the vote “sends a message that Chicago is closed for business, closed for development and closed for job creation….[and] imposes special interest mandates that will unfairly deny savings and job opportunities to those who need them most.” (See Bloomberg article.) Wal-Mart claims that its average hourly wage is almost $11 an hour in the Chicago area and that the lowest wage that will be paid at Chicago’s new West Side store will be $7.25 an hour. (See AP article.) Previously, a Wal-Mart spokesperson had threatened to leave the city if the measure passed, saying “We’d redirect our focus on our suburban strategy and see how we could better serve our city of Chicago residents from suburban Chicagoland.”

Groups supporting workers hailed the move. Chicago residents “can’t live off a minimum wage, especially if you have kids,” Juan Carrillo, 25, a member of activist group and living-wage supporter Association of Community Organizations for Reform Now (ACORN), said in an interview. “We’re not against big-box stores. We’re just looking for a living wage and benefits.” (See Bloomberg article.) “We’re very confident that retailers want and need to be in Chicago, and the question for the city is what kinds of jobs they will bring,” said Annette Bernhardt of the Brennan Center for Justice, which helped draft the Chicago bill and has done economic studies of its likely impact.

Will this kind of bill blow into some other cities? Experts think it’s the kind of measure that could catch on elsewhere. Said Paul Sonn of the Brennan Center, “Like Chicago, other cities are seeing growth in retail jobs, and are searching for solutions to make them living wage jobs…I think the Chicago model will be of great interest to [proponents of living wage ordinances in] other cities.” There will undoubtedly be some trepidation on the part of some city leaders, who fear the kind of litigation faced by the state of Maryland after passing its “fair share” law, and retailers affected by the Chicago law have already threatened to file suit. (See Chicago Sun-Times article.)

Although you have to wonder why don’t they save the millions in legal fees they’re sure to incur by challenging these laws, and just send a few bucks more an hour their workers’ way. It’s the principle of the thing, they’re sure to argue. But why is it more important to defend their right to pay workers low wages than it is to embrace the principle that their workers should be able to make enough money to afford the consumer goods these retailers are selling, even at such low prices? If those who work at Wal-Mart can’t even afford to shop there, and Wal-Mart’s wage practices encourage other retailers to pay their workers less in order to be competitive, and people who can spend more money start deciding to support retailers who pay a fair wage, then who’s left to shop at Wal-Mart?

It’s not clear whether Mayor Daley will sign this bill. He had signaled his opposition before it was passed, saying that would drive jobs and desperately needed development from some of the city’s poorest neighborhoods and lead giants like Wal-Mart to abandon the city. (See AP article.) If the voting holds up, the City Council has two more votes than is needed to override a veto, although the city council aldermen are certainly under tremendous lobbying pressure right now. (See New York Times article.) If you’d like to write Mayor Daley and encourage him to support the bill, you can do so here. Obviously, if you’re a Chicago-area resident and/or retail employee, your message will carry more weight, so be sure to tell your own story.

The second piece of good news to blow out of Chicago last week was the 7th Circuit Court of Appeals decision in Doe v. Oberweis Dairy. In that case, a teen who had brought a sexual harassment lawsuit against her employer after she was targeted by her 25-year-old supervisor in an ice cream shop, was allowed to proceed with her lawsuit after it had been thrown out by a lower court. Although the supervisor was prosecuted, convicted, and sentenced for sleeping with his 16-year-old employee, the employer had argued that it wasn’t liable for her sexual harassment claim, saying that the sex was consensual and occurred outside the workplace. The lower court judge agreed, saying that the conduct did not meet the “severe and pervasive” standard required to prevail in a sexual harassment case.

The 7th Circuit, in an insightful opinion written by Judge Richard Posner, soundly rejected both arguments. As Jane Doe was a minor, and her supervisor’s conduct amounted to statutory rape, Illinois law presumes that she cannot consent to sexual intercourse. The Court’s opinion holds that courts should look to the state’s age of consent law to determine whether a minor could consent to the sexual activity involved, and if not, it should not be considered consensual for purposes of the sexual harassment case, either. It only makes sense that if a supervisor’s conduct is so egregious as to constitute a crime where consent is no defense, the supervisor shouldn’t be off the hook in a civil case by being allowed to make that defense.

As for the company’s second defense — that the sex happened away from work — the opinion quickly disposed of that argument as well. The most egregious forms of sexual harassment — those that constitute forcible rape or sexual assault — may not happen on the employer’s premises, and we certainly don’t want a standard that says that all a preying supervisor or co-employee has to do is lure their target off the premises, and they’re home scot-free. Here’s what Judge Posner had to say about that: “The sexual act need not be committed in the workplace, however, to have consequences there….at the very least the harassment must…be an episode in a relationship that began and grew in the workplace.” Here, since “[t]he relationship began with flirtatious talk and erotic touching in the workplace and continued there for nine months before Nayman and Doe had sex,” it was sufficient to count as workplace sexual harassment. (See Doe opinion at 17-18.)

As our recent report, Summertime, and the Working Isn’t Easy, highlighted, the sexual harassment of teenagers is a significant problem, and one of which everyone close to a teen worker should be aware. As EEOC Chair Cari M. Dominguez has pointed out, “Discrimination happens to employees of all ages, but offenders sometimes single out teen workers because they think they won’t know any better.” Adding to the problem is that teen workers often don’t know that they are being harassed or that is it illegal, and don’t know what they should do about it. Even if young workers do know they are being harassed, many don’t report it because they think it could cost them their jobs. Jane Doe presented evidence that she was disturbed by her supervisor’s attentions in the workplace but did not feel free to resist them for fear of losing her job (and it was her first job) — unfortunately, her case is not atypical.

As a result of the Doe v. Oberweis Dairy decision, more teens will have the ability to fight back when they have been harassed, and more employers will realize the importance of making sure their supervisors do not prey on the young workers they supervise. Doe’s supervisor, Matt Neyman, had preyed on several other young victims before Doe’s time, previously sleeping with two of the young women he supervised, one of whom was a minor. Companies will find that having a supervisor who works his way from one young woman to the next is a major liability, costing far more than a shift supervisor’s salary in damages and legal fees.

While going through this kind of litigation was obviously very harrowing for Jane Doe (luckily a pseudonym has preserved her identity), her courage will result in a better workplace for many other young women in their first summer jobs. However, we can publicly thank Jane Doe’s attorney, H. Candace Gorman of Chicago, who has fought this fight on Jane Doe’s behalf for several years now.

The winds of change can be fickle. Next week, Chicago could become as cold and harsh to workers as most of its winters are. But right now, we can enjoy the refreshing breeze while it lasts.

More Information:

WF Action Alert: TELL CHICAGO’S MAYOR TO SIGN THE LIVING WAGE ORDINANCE
(If you’re not an Illinois resident, please e-mail Mayor Daley here.)

Brennan Center for Justice: Chicago’s Retail Living Wage Law

ACORN: Living Wage Campaign; Living Wage Resource Center

WF Report: Summertime, and the Working Isn’t Easy: Teens and Harassment: Just Horsing Around, or Serious Business?

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