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Posts Tagged ‘#MeToo’

Scalia’s challenge: Fiery old writings in a new era of #MeToo

Thursday, July 25th, 2019

Ian Kullgren March 9, 2018. (M. Scott Mahaskey/Politico)

Two decades before being nominated as President Donald Trump’s Labor secretary, Eugene Scalia was at war with the lion of the Senate.

In 2001, Sen. Ted Kennedy, the Democratic chairman of the Health, Education, Labor and Pensions Committee, expressed skepticism of then-President George W. Bush’s decision to nominate Scalia as the Labor Department’s top legal official. In his opening statement at Scalia’s confirmation hearing, Kennedy criticized a 1998 essay in which Scalia said that a form of workplace sexual harassment known as quid pro quo “should be eliminated as a functional category of discrimination” under the law.

But Scalia had a formidable ally: Ruth Bader Ginsburg, the Supreme Court justice and close friend of fellow Justice Antonin Scalia, Eugene Scalia’s father. In a letter to the committee, Ginsburg said the younger Scalia’s essay was “written with refreshing clarity and style. It is informative, thought-provoking, and altogether a treat to read.”

“She thought very highly of him. Ruth appreciates good lawyering,” Bill Kilberg, a partner at Gibson Dunn who considers both Scalia and Ginsburg close friends, said in a phone interview.

Scalia’s strongly worded essay is among key pieces of his record set to resurface as he faces confirmation in a #MeToo world. His views aired in that hearing 18 years ago were just a small piece of a career-long commitment to conservative legal theory and a penchant for rhetorical flair that echoes his father — but also present a potential liability in the Senate, which is more discerning toward sexual harassment issues than it was two decades ago.

“The Senate’s changed dramatically in the years since that confirmation hearing occurred,” said Jim Manley, Kennedy’s press secretary at the time and later a senior strategist for Senate Majority Leader Harry Reid. “What may not necessarily be a big deal then could be a big deal this time around. The people have changed and the issues have changed over the years, and he’s going to get some scrutiny on this.”

Scalia has represented a range of corporate clients in complaints related to workplace sexual harassment. As recently as 2015, he briefly worked for the global bank HSBC in a case involving current and former employees who accused a senior executive of repeated and unwanted sexual advances. Trump announced Scalia’s nomination last Thursday — a week after the ouster of Alex Acosta, who resigned amid scrutiny over his role in brokering a 2008 plea deal with wealthy sex offender Jeffrey Epstein, arrested in New Jersey earlier this month on new charges of sex trafficking.

Some liberal groups have already seized on Scalia’s prior writings, arguing they should disqualify him from serving in Trump’s cabinet. Allied Progress director Derek Martin said Scalia “may be a gifted legal mind, but his moral compass clearly needs some calibration.”

“The Senate should reject this nominee and demand a Labor secretary who will look out for all Americans in the workplace, not just the ones that sign the checks,” Martin said.

Scalia’s nomination was quickly celebrated by conservatives who see him as a warrior against regulations and a defender of business freedom.

“The confirmation process has gotten so silly that people will make something out of the most ridiculous things and attempt to block a nominee, but I will tell you that I know Gene Scalia would never tolerate sexual harassment in the workplace,” added Helgi Walker, a longtime colleague of Scalia’s at Gibson Dunn.

Scalia was narrowly approved by the Senate panel in 2001, despite the controversy stirred by his previous writings on sex discrimination. He was appointed to the position four months later during the Senate’s recess after Democrats, who controlled the upper chamber, refused to hold a confirmation vote.

The 7,000-word opinion piece, which Scalia published in the Harvard Journal of Law and Public Policy, a common resource for conservative legal scholarship, was cited by the Supreme Court in Burlington Industries v. Ellerth, a case that sought to clarify the legal exposure companies face amid instances of sexual harassment. The decision came a little over a year after the justices decided Clinton v. Jones, another landmark case involving former Arkansas state employee Paula Jones’ sexual harassment claim against then-President Bill Clinton.

In the essay, Scalia does not endorse leniency for harassers. But he does argue that quid pro quo harassment, the illegal practice of soliciting sexual favors in return for professional advancement, shouldn’t be distinguished from generalized harassment in the workplace.

“His point was only that employers should be liable and you don’t need a new doctrine to make it liable,” Kilberg said.

Scalia declined to comment on the record. White House spokesperson Judd Deere said his “past experience in the federal government … makes him the right choice to lead the [Labor] department.”

“Eugene Scalia is one of the most experienced and respected labor and employment lawyers in the country, which is why President Trump has expressed his intent to nominate him,” Deere added.

Still, many of the passages in Scalia’s essay — though part of a larger and more complex legal argument — are likely to draw criticism from opponents.

“Saying ‘You’re an incompetent stupid female bitch’ a single time is not actionable environmental harassment,” Scalia wrote in one of his most emphatic lines. “Why should suit lie for saying ‘I don’t have time for you right now, Kim, unless you tell me what you’re wearing,’ a statement that Judge Flaum found to be a quid pro quo proposition in his Jansen opinion?”

Kennedy and his Democratic colleagues accused Scalia of arguing that employers should not be liable when executives or supervisors promise perks and promotions in exchange for sexual favors, or when they threaten adverse employment actions if a subordinate declines to engage in sexual activity.

“[Scalia] has said that employers should not be strictly liable in sexual harassment cases unless they expressly endorse the conduct of the harasser,” Kennedy (D-Mass.) said in his opening statement, according to a transcript of the confirmation hearing. (Kennedy died in 2009.)

To combat the onslaught of criticism from their Democratic colleagues, the panel’s Republican members frequently referred back to Ginsburg’s letter.

“I do not think she would have written that if she thought you were off the world somewhere in your views on that,” then-Sen. Jeff Sessions (R-Ala.) said of Ginsburg, whom he referred to as “the most ardent defender of women’s rights on the U.S. Supreme Court.”

Scalia ultimately overcame the controversy in 2001 and was approved by the Senate panel 11-10, with Vermont independent Jim Jeffords casting the deciding vote.

When Scalia started his new job, he boasted the essay as one of his top legal writings on the Labor Department website.

Rebecca Rainey contributed to this report.

This article was originally published by Politico on July 12, 2019. Reprinted with permission. 

About the Author: Ian Kullgren is a reporter on POLITICO’s employment and immigration team. Before joining POLITICO, he was a reporter for The Oregonian in Portland, Ore. and was part of a team that covered a 41-day standoff with armed militants at the Malheur National Wildlife Refuge. Their efforts earned the Associated Press Media Editors grand prize for news reporting in 2017. His real beat was politics, though, and he spent most his time at the state capitol covering the governor and state legislature.

About the Author: Gabby Orr is a White House reporter for POLITICO. She previously covered Donald Trump’s ascension to power for the Washington Examiner, from the day he announced his campaign to his transition to the White House. She spent one month in 2016 embedded in New Hampshire, where she covered several Republican candidates prior to the state’s first-in-the-nation primary. Orr has also worked for The New York Post and Fox News’ digital platform. Originally from Sonoma, Calif., she graduated from George Washington University in 2015 with a degree in political science.

Time’s Up: Time to Reconsider the “Severe and Pervasive” Standard for Sexual Harassment

Friday, March 8th, 2019

“The #MeToo and Time’s Up movements constitute a revolution in women’s rights that is too powerful to be turned back,” said Roberta Kaplan, co-founder of the Time’s Up Legal Defense Fund, in October 2018. But a recent Seventh Circuit decision (Swyear v. Fare Foods Corp.) dismissing an employee’s sexual harassment claim could jeopardize the momentum of the revolution.

On June 18, 2015, Fare Foods interviewed Amy Swyear for an outside sales representative position. During the interview, a hiring manager remarked that most of the other outside sales reps were men. He questioned Swyear about her ability to perform in a male-dominated field. The manager’s comments only hinted at what Fare Foods had in store for Swyear.

At the office, Swyear frequently overheard her new coworkers making crude sexual remarks and referring to female customers as “Cunty” and “Big Tittie.” Working in the field proved to be worse. In mid-July, Swyear and another sales representative, Russell Scott, attended an out-of-town overnight business trip. During a conversation with the client, Scott falsely implied that he and Swyear were sharing a hotel room.  At the hotel, Scott followed Swyear into her room and suggested that they have dinner together. Scott followed Swyear into her room without consent, got in her bed and said he wanted a “cuddle buddy.” He asked Swyear to go “skinny dipping” with him and put his hands on her lower back and arms. Scott eventually left Swyear’s hotel room, but he later returned. Swyear pretended to be in the shower and ignored Scott’s knocking. But Scott would not relent. He repeatedly called Swyear’s cell phone, demanding to enter her room.

Swyear reported Scott’s harassment during a performance meeting about one week later. Less than one month after the meeting, Fare Foods terminated Swyear’s employment.

The Seventh Circuit concluded that the harassment was not sufficiently severe and pervasive to constitute a hostile work environment and entered summary judgment for Fare Foods. The court forgave the “crude,” “immature,” and “vulgar” sexual comments because they were “off-hand” and not directed at Swyear. Similarly, Judge Bauer, writing for the court, excused Scott’s unwelcome sexual comments, advances, and touching because it occurred just once. The court’s decision indicates that, absent physical sexual assault, an employee cannot meet his/her burden to show a ‘severe and pervasive’ hostile work environment.

Essentially, the court’s decision gives employers a free pass for egregious sexual misconduct, as long as it only happens once. But one time is one too many. The #MeToo movement has helped thousands of sexual harassment victims get justice against their harassers. Unfortunately for Amy Swyear, the Seventh Circuit has yet to realize the effects of the movement. But worse, it may have set a dangerous precedent for future sexual harassment claims.

About the Author: Krista Wallace is an Associate Attorney at Alan Lescht and Associates, P.C. in Washington, D.C. Alan Lescht and Associates, P.C., has partnered with the Time’s Up Legal Defense Fund to represent private and public-sector workers in federal court proceedings and before administrative agencies.

EEOC reports (mostly) positive developments on sexual harassment

Monday, October 22nd, 2018

The Equal Employment Opportunity Commission reports that formal complaints of sexual harassment complaints are up significantly from 2017. The EEOC is also litigating substantially more harassment cases.

Amid the uptick in reported harassment, there is evidence that men are changing their behavior – in good and bad ways. While the impact of the #MeToo movement has mostly been positive, some leery men are going to the other extreme and avoiding female co-workers completely.

Formal harassment complaints and lawsuits have increased

The EEOC says it is leading the way in combating workplace sexual harassment. Through outreach and education, as well as through investigation and enforcement, the agency believes it’s making an impact:

  • Formal sexual harassment charges in fiscal year 2018 increased by more than 12 percent from 2017.
  • Reasonable cause findings increased by 23 percent and successful conciliations by 43 percent.
  • In complaints not resolved through mediation, the EEOC has filed 41 sexual harassment lawsuits, a 50 percent increase.
  • The EEOC recovered $70 million for victims in FY 2018, an increase of 47 percent.

In the aftermath of #MeToo, traffic to the EEOC website doubled in the past year as both employees and employers sought information on dealing with workplace harassment. The agency conducted hundreds of outreach events to educate individuals and employers

Some men are taking the wrong message from #MeToo

Overall, the #MeToo movement has affected real and positive change. More women (and men) are confronting abuse and reporting sexual harassment rather than quietly tolerating it. Employers, including government agencies, are re-examining their policies and doing more trainings. Habitual and egregious offenders are being fired or otherwise suffering real consequences.

At least anecdotally, males in the workplace are changing their behavior, out of self-preservation if not because they genuinely “get it.” From sexual come-ons and inappropriate touching and to sharing sexual jokes or pictures, men appear to be getting the message.

But there has been some unexpected backlash from the #MeToo campaign. Some men in positions of power are intentionally avoiding or excluding female counterparts to avoid being accused of harassment. For example, women may not be invited to key meetings or after-hours events. Some men say they will no longer mentor women or hire female assistants. Some go so far as to avoid riding in an elevator or vehicle with female co-workers.

This overreaction has the unintended consequence of limiting opportunities for women and creating barriers. Such behavior can rise to the level of retaliation, sex discrimination or creating a hostile work environment.

This blog was originally published by Passman & Kaplan, P.C., Attorneys at Law on October 22, 2018. Reprinted with permission. 

About the Authors: Founded in 1990 by Edward H. Passman and Joseph V. Kaplan, Passman & Kaplan, P.C., Attorneys at Law, is focused on protecting the rights of federal employees and promoting workplace fairness.  The attorneys of Passman & Kaplan (Edward H. Passman, Joseph V. Kaplan, Adria S. Zeldin, Andrew J. Perlmutter, Johnathan P. Lloyd and Erik D. Snyder) represent federal employees before the Equal Employment Opportunity Commission (EEOC), the Merit Systems Protection Board (MSPB), the Office of Special Counsel (OSC), the Office of Personnel Management (OPM) and other federal administrative agencies, and also represent employees in U.S. District and Appeals Courts.

#MeToo Hits Fast Food: Why McDonald’s Workers Are Out on a Historic Strike Today

Wednesday, September 19th, 2018

Workers at McDonald’s are set to walk out of work today in ten U.S. cities: Chicago, St. Louis, Durham, Kansas City, Los Angeles, Miami, Milwaukee, New Orleans, Orlando and San Francisco.

While a string of fast food strikes has hit chains in recent years, this time workers aren’t walking out for higher wages, but for respect and freedom from harassment in an industry known for rampant abuse.

In the non-unionized fast food industry, marked by high turnover, low wages, and poor to non-existent benefits, sexual harassment is endemic. A recent study of fast food restaurants such as Taco Bell and McDonald’s found that 40 percent of workers reported experiencing sexual harassment at work. A full 60 percent of the women who reported multiple occurrences of harassment said they felt pressure to accept the abuse because they could not afford to quit their job.

McDonald’s has faced a slew of lawsuits related to sexual harassment in recent years. In October 2016, Fight for $15, the group advocating for minimum-wage increases in the service sector, filed 15 sexual harassment claims with the Equal Employment Opportunity Commission, accusing the McDonalds corporation and franchisees of failing to protect—and sometimes retaliating against—workers reporting harassment.

According to the National Women’s Law Center, an organization supporting the striking workers, McDonald’s management routinely “initiated or disregarded” instances of sexual harassment. Among the incidents reported by the Center: A 15-year-old cashier in St. Louis who was asked by an older male employee: “Have you ever had white chocolate inside you?” When the 15-year-old reported the harassment to her manager, she was told, “you will never win that battle.” In New Orleans, a female worker complained about a co-worker groping her, to which her manager responded that she should “take it to the next level” with him. This same worker also endured an attempted sexual assault, which she did not report because of her past experiences.

“By funding the legal representation in these cases, we hope to help ensure that these charges will be a catalyst for significant change,” Sharyn Tejani, Director of the TIME’S UP Legal Defense Fund, said in a statement. “Few women working in low-wage jobs have the means or the financial security to challenge sexual harassment. As shown by these charges and thousands of intakes we have received at the Fund from women in every industry, those who report their abuse are often fired, demoted or mocked—and since nothing is done to stop the harassment, nothing changes.”

The TIME’S UP Legal Defense Fund is the latest example of the #MeToo movement’s solidarity with low-wage workers. The Fund, which arose as a response to the sexual harassment faced by women in Hollywood, has now amassed over 200 volunteer lawyers, and has pledged to support “the factory worker, the waitress, the teacher, the office worker.” The organization was also led to this cross-class alliance in part by expressions of solidarity from workers across sectors, including a letter signed by 700,000 female farmworkers associated with the Alianza Nacional de Campesinas, and a 2017 “Take Back the Workplace” march in Los Angeles.

The strike is historic. While labor organizing campaigns have often made sexual harassment a focal point, this strike marks the first multi-state action devoted solely to the issue. 

Workers organizing against sexual harassment at McDonald’s can draw from a long tradition. In the 1830s, one of the first labor struggles in the early phases of American industrialization centered around addressing the sexual harassment and assault faced by female mill workers in Lowell, Massachusetts.

In one of the first efforts to organize workers at a restaurant chain, the Hotel Employees and Restaurant Employees International Union (HERE) launched a six-year campaign during the 1960s to organize Playboy Bunnies. The campaign centered around combating the sexist workplace of the Playboy Clubs, an environment rooted in Hugh Hefner’s ethos that “women should be obscene and not heard.”

In the book Feminism Unfinished, Dorothy Sue Cobble writes that tenacious HERE organizer Myra Wolfgang told reporters the Bunnies would “bite back” against Playboy’s sexist working conditions.  And that’s just what they did. According to Cobble, management ultimately agreed to a “national contract promising to pay wages to Bunnies (previously the women relied solely on tips) and allow Bunnies more discretion over uniform design, customer interactions, and company appearance standards.”

While historically unions have (albeit sometimes unsuccessfully) been a bulwark against sexual harassment, fast-food empires like McDonald’s have always been closed off to unions. Without the protection of a union, fast food workers are particularly vulnerable to harassment. But, according to sexual harassment expert Lin Farley, the equation can also be reversed: Harassment can be a tool to prevent unionization and collective worker struggle. “You have fast-food managers systematically using sexual harassment to keep turnover high, so they don’t have to unionize, they don’t have to give higher wages,” Farley told On the Media.

That might be changing, however. With a more class-conscious #MeToo movement, a wave of militant teachers’ strikes, anti-sexual harassment campaigns and strikes in the majority female hotel industry, it’s clear that women are fed up with abuse in the workplace. The McDonald’s strike shows that this increased organizing may soon translate into more wins for labor in the most exploited sectors like the fast food industry, where class struggle is now on the menu.

This article was originally published at In These Times on September 18, 2018. Reprinted with permission. 

About the Author: Rachel Johnson is a writer based in Chicago. She holds a master’s degree in U.S. history from Northwestern University.

Senators are letting themselves off the hook with sexual harassment bill, women's rights groups say

Friday, May 25th, 2018

Sexual harassment in Congress is a scandal—and it would probably be a lot more of one if Congress hadn’t written its own rules for dealing with allegations in secret. But since the #MeToo movement has shined a light on sexual harassment, the House of Representatives has managed to pass a decent bill. The Senate … hasn’t, and the bill it has coming up for a vote is not the answer. The American Civil Liberties Union, Equal Pay Today, the Leadership Conference on Civil and Human Rights, National Women’s Law Center, and Public Citizen are calling on the Senate to strengthen its bill.

Their letter points to serious weaknesses in the Senate bill, including that it doesn’t call for an independent investigator, instead putting approval of settlements in the hands of the ethics committees of both the House and the Senate to sign off on if the settlement is because of a member of Congress’s own actions:

“This provision appears to provide an opportunity for a Member who has settled a claim to avoid personal accountability and to be absolved from reimbursing the taxpayers,” the groups wrote in the letter.

Additionally, the Senate bill fails to hold members liable for discrimination settlements:

“A Member who has committed wrongdoing should be liable for all damages negotiated in a settlement or awarded by a court; they should not be shielded from the consequences of their actions,” they wrote.

Seriously. Time for Congress to be held accountable—and the way for that to happen is for Congress to write its own rules to demand accountability.

This blog was originally published at Daily Kos on May 25, 2018. Reprinted with permission.

About the Author: Laura Clawson is labor editor at Daily Kos.

The Supreme Court’s Latest Anti-Worker Decision Deals a Major Blow to the #MeToo Movement

Tuesday, May 22nd, 2018

After months of sustained public pressure targeting sexual harassment in workplaces across the United States, the U.S. Supreme Court on Monday significantly undermined the power of workers to collectively challenge discrimination and abuse at the hands of their employers. In a 5-4 decision on the Epic Systems Corp. v. Lewis casethe Court ruled that private-sector employees do not have the right to enter into class-action lawsuits to challenge violations of federal labor laws.

“[T]he Supreme Court has taken away a powerful tool for women to fight discrimination at work,” said Fatima Goss Graves, president and CEO of the National Women’s Law Center, in a press statement. “Instead of banding together with coworkers to push back against sexual harassment, pay discrimination, pregnancy discrimination, racial discrimination, wage theft and more, employees may now be forced behind closed doors into an individual, costly—and often secret—arbitration process. This will stack the deck in favor of the employer.”

The case concerns tens of thousands of employees at three companies—Epic Systems Corp., Ernst & Young LLP and Murphy Oil USA Inc.—who were forced to sign away their right to join class-action lawsuits against their employers as a precondition to being hired.

The workers argued that their right to file class-action lawsuits over alleged wage and hours violations is protected by the National Labor Relations Act (NLRA), which was passed in 1935 to offer employees greater leverage to collectively challenge unjust treatment on the job. But, echoing the employers’ arguments, Justice Neil Gorsuch—who was appointed by Trump—wrote in the majority opinion that the 1925 Federal Arbitration Act supersedes the NLRA.

The ruling means that workers do not have the right to take bosses to court over alleged violations of federal labor laws. It also means bosses can force workers to arbitrate complaints individually instead of collectively, which overwhelmingly slants in favor of employers. This ruling is poised to impact a large swath of the U.S. workforce, where 41 percent of private-sector employees have already signed away their right to class-action legislation.

These workers include those who are pushing against wage and hour violations, as well as fighting patterns of racism, sexism and other forms of harassment in the workplace. Workers’ rights advocates say they are concerned that the ruling could potentially be detrimental to the #MeToo movement, which has relied on power in numbers to confront sexual assault in workplaces from Hollywood to tomato fields. Some warn that, for those facing sexual harassment in the workplace, the choice between employer-controlled arbitration or continuing on in silence is a choice between two bad options.

“#MeToo has shown us that the abuse of power is not one ‘rotten apple in a barrel’: It is widespread and systemic, especially in low-wage industries,” Palak Shah, social innovations director for the National Domestic Workers Alliance, told In These Times. “We need checks on power—like collective action—to counter abuses of power when they happen. While unchecked power imbalances exist between employers and workers, we can be sure abuses like sexual harassment will continue.”

Arbitration is often kept secret and, employees frequently foot the bill for the arbitration process. Experts warn that this secrecy would protect employers responsible for harmful work environments by not allowing space for workers to collectively address widespread patterns of harassment.

“In the case of sexual harassment, say there was a group of employees who claimed that they’d been sexually harassed, they can’t proceed together. They’d have to go individually [to arbitration] and they can’t go to court,” Alexander Colvin, a labor relations scholar at Cornell University, told In These Times.

According to Graves, the stakes are “particularly high” for women who “often face discrimination that is difficult to detect, like pay discrimination, or suffer from sexual harassment and face retaliation for reporting it.”

Writing the dissenting opinion, Justice Ruth Bader Ginsburg argued that the 1925 law exemplified a different age for labor relations, and that employees should not be forced into “take-it-or-leave-it” agreements in order to find gainful employment.

The case is one of several currently being considered by the Supreme Court that could severely undermine workers’ rights. Much like the pending decision in Janus v. AFSCME, which could prevent unions from collecting union dues from non-union members, it furthers the ongoing anti-worker agenda pushed by the Trump administration.

“As mandatory arbitration is forced on growing numbers of employees as a condition of employment,” Graves added, “the Supreme Court should strengthen rather than undermine the rights of workers to challenge insidious and often widespread civil rights violations.”

 About the Authors: Rima Parikh is a summer 2018 editorial intern at In These Times and an incoming MSJ candidate at Northwestern University. Tanner Howard is a freelance journalist and In These Times editorial intern. They’re also a member of the Democratic Socialists of America.

Women of color face barriers in sexual harassment claims

Tuesday, May 8th, 2018

Women of color are more likely to experience sexual harassment, yet less likely to report it.

The dynamic is true across all sectors, including state and federal government jobs. The increased awareness and sympathy in the wake of #MeToo and #TimesUp doesn’t always translate when the victim of sexual harassment is a minority woman.

What needs to change to make it safe and viable for women of color to report harassment?

Minority women are still leery of coming forward

Numerous surveys and studies indicate women of color experience sexual harassment at a higher rate than white women. This is especially true in low-wage occupations such as food service and housekeeping. So why don’t formal harassment complaints reflect this?

  • Women of color are both fetishized and marginalized, making them frequent targets for harassment. This is especially true if they are isolated in the workplace. I’m the only non-white woman in my whole department. They worry that co-workers or supervisors will not back them up.
  • Dominant culture stereotypes can inhibit investigation of workplace harassment. Asian women are submissive. Black women are dramatic. Latinas are hotheads. Such preconceptions can skew how sexual harassment complaints are perceived and processed by management or HR.
  • Cultural norms also influence women from minority communities, including what they consider harassment and whether to report it. We don’t snitch on our own. You should take it as a compliment. Our people don’t rock the boat. No one will take a black woman seriously.

These external and internal messages get in the way of holding harassers accountable. Instead of focusing on the sexual harassment, the victim is more likely to be doubted or “handled” if she is a woman of color.

More to lose, less to gain

Women from racial and ethnic minorities are already at a disadvantage when it comes to hiring and advancement. Like all women, they have to weigh the risks and rewards when deciding whether to blow the whistle on harassment. But women of color are less likely to be believed and supported, even within the current environment to expose sexual harassment. According to The Alliance, for every black woman who reports a sexual assault, there are 15 black victims who don’t even bother to go to police.

Women of color are also more likely to suffer retaliation after reporting sexual harassment – transfers, poor performance reviews, denial of security clearance, or even termination. And so the self-dialogue becomes how much harassment they are willing to put up with.

You do not have to fight this battle alone.

The inequality won’t change overnight, but the needle is moving in the right direction. Women of color do have legal recourse to stop workplace sexual harassment and pursue civil damages. An employment law attorney can help document the harassing behavior, identify allies (or reluctant witnesses) and initiate a formal sexual harassment complaint through the EEOC or other channels.

This blog was originally published at Passman & Kaplan on May 4, 2018. Reprinted with permission. 

About the Author: Founded in 1990 by Edward H. Passman and Joseph V. Kaplan, Passman & Kaplan, P.C., Attorneys at Law, is focused on protecting the rights of federal employees and promoting workplace fairness.  The attorneys of Passman & Kaplan (Edward H. Passman, Joseph V. Kaplan, Adria S. Zeldin, Andrew J. Perlmutter, Johnathan P. Lloyd and Erik D. Snyder) represent federal employees before the Equal Employment Opportunity Commission (EEOC), the Merit Systems Protection Board (MSPB), the Office of Special Counsel (OSC), the Office of Personnel Management (OPM) and other federal administrative agencies, and also represent employees in U.S. District and Appeals Courts.

Labor Department tells senators it’s too ‘complex’ to collect sexual harassment data

Thursday, May 3rd, 2018

The Labor Department told Democratic senators that it can’t collect data on sexual harassment in the workplace because it would be “complex and costly.” On Monday, Democratic senators dismissed that justification.

In January, 22 Democratic senators sent a letter to labor department officials requesting the department act on studying sexual harassment. Sen. Kirsten Gillibrand (D-NY) signed the letter and Sens. Kamala Harris (D-CA) Elizabeth Warren (D-MA), Bernie Sanders (I-VT), and others co-signed the letter, according toBuzzFeed.

Referring to the #MeToo movement, the letter noted that “there has not been an exact accounting of the extent of this discrimination and the magnitude of its economic costs on the labor force. We therefore request your agencies work to collect this data.”

CNN was the first to obtain the Labor Department’s response, which was addressed to Gillibrand. The department’s letter read, “There are a number of steps involved in any new data collection, including consultation with experts, cognitive testing, data collection training, and test collection. Once test collection is successful, there is an extensive clearance process before data collection can begin.”

The department went on to say that employers would have difficulty providing the information they’re requesting and that requesting additional information for the Bureau of Labor Statistics survey “may have detrimental effects on survey response.”

The letter mentions “alternative sources of information on sexual harassment,” such as the Bureau of Justice Statistics’ National Crime Victimization Survey, but senators sent a letter in response that essentially balked at that recommendation.

“…the Department is surely aware that not all sexual harassment rises to the level of a violent criminal act and therefore would not be captured by this survey,” the letter read.

Senators called the justifications for declining to work on the issue “wholly inadequate” and wrote that since they “hope that the Department would always consider rigorous methods inherent in data collection,” the department’s mention of its complexity should not justify the decision to not study sexual harassment. Senators also mentioned that the U.S. Merit Systems Protection Board did this type of data collection and analysis in the ’80s and that “Surely the government’s capacity to collect this data has only become more sophisticated over the past several decades.”

Senators from both parties asked the labor secretary to take some kind of action on sexual harassment at an April Senate panel on the budget. According to Bloomberg, at the time, Labor Secretary Alexander Acosta “expressed willingness to act.”

Many researchers have looked at the economic cost to harassed women themselves. Heather McLaughlin, an assistant professor of sociology at Oklahoma State University, has studied the career effects of sexual harassment and found that a lot of the women who quit jobs because of sexual harassment changed careers and chose fields where they expected less harassment. But that meant that some of those fields were female-dominated, and many female-dominated fields pay less. Some women were more interested in working by themselves after the harassment.

” … but certainly they’re being shuffled into fields that are associated with lower pay because of the harassment,” McLaughlin told Marketplace.

People who have been harassed also experience effects on their physical and mental health, such as anxiety, depression, and post-traumatic stress disorder. Victims of sexual harassment can also experience headaches, muscle aches, and high blood pressure.

Fifty-four percent of U.S. women said they received inappropriate and unwanted sexual advances from men, with 23 percent saying those advances came from men who had influence over their careers and 30 percent coming from male co-workers, according to a 2017 ABC News/Washington Post poll.

“Right now, we don’t know how many gifted workers and innovators were unable to contribute to our country because they were forced to choose between working in a harassment-free workplace and their career,” Gillibrand wrote in her January letter to the department.

This article was originally published at ThinkProgress on May 2, 2018. Reprinted with permission.

About the Author: Casey Quinlan is a policy reporter at ThinkProgress covering economic policy and civil rights issues. Her work has been published in The Establishment, The Atlantic, The Crime Report, and City Limits.

Academy of Motion Picture Arts and Sciences president under investigation for sexual harassment

Thursday, March 22nd, 2018

John Bailey, president of the Academy of Motion Picture Arts and Sciences, is under investigation for allegations of sexual harassment, according to an exclusive Variety report published Friday. A probe into the academy president’s alleged misconduct was immediately opened after the academy received three claims of sexual harassment against Bailey.

In a painful twist of irony, Bailey’s tenure has been marked by the #MeToo movement, which forever changed the way the academy approaches misconduct by its members, almost using membership as a tool to punish those accused of sexual assault and/or harassment.

Just 10 days after The New York Times published its bombshell report on film producer Harvey Weinstein’s history of sexual assault and harassment, the academy voted to expel him from the organization. In spite of this, however, many prominent actors themselves accused of sexual harassment or assault — such as Casey Affleck, Bill Cosby, and Roman Polanski — remain members of the academy.

In January, the academy proposed a new standards of conduct as part of the organization’s attempt to respond to the sexual harassment and assault scandals.

“The Academy’s goal is not to be an investigative body, but rather ensure that when a grievance is made, it will go through a fair and methodical process,” CEO Dawn Hudson said in an email sent to members.

The standards outlined how the academy will approach sexual misconduct allegations going forward. According to a document sent to members, individuals will be able to report misconduct through an online form the academy plans to launch in the summer of 2018, or by phone to the academy’s membership department. The allegations must be substantiated by evidence, and will be subject to a review by the academy’s membership committee. If the allegations are deemed serious enough, the committee may refer the issue to the board of governors, which can then vote to suspend or expel a member.

But Bailey’s alleged actions put the academy in the precarious position of choosing how to handle potential misconduct at the organization’s highest level. Should the academy choose to let Bailey go, Lois Burwell, a veteran makeup artist, will fill the role until the next election in July.

This article was originally published at ThinkProgress on March 16, 2018. Reprinted with permission. 

About the Author: Rebekah Entralgo is a reporter at ThinkProgress. Previously she was a news assistant on the NPR Business Desk. She has also worked for NPR member stations WFSU in Tallahassee and WLRN in Miami.

Women in male-dominated workplaces more likely to be mistreated

Friday, March 16th, 2018

Nearly half of American women work in places where they outnumber the men. But for millions of other women, employment in a male-dominated workplace can be stressful, dangerous and harmful to their careers.

A Pew Research Center survey confirmed that women in majority-male workplaces are more likely to experience gender discrimination and sexual harassment. The mistreatment is often worst in traditionally male jobs and workplaces without women in positions of authority.

Gender ratios are linked to gender discrimination

The Pew Research survey was conducted in 2017 before the #MeToo movement put a national spotlight on sexual harassment. The research gave credence to a known phenomenon:

  • Sex discrimination – In majority-male workplaces, women were more likely to say they (a) are paid less than men, (b) are treated as not competent, (c) received less support from leadership than their male counterparts, and (d) suffered small but repeated slights based on their gender.
  • Sexual harassment – Women in majority-male workplaces were more likely to say that they had personally been sexually harassed (28 percent). Harassment occurs even in female-dominated occupations, but both men and women said it was less of a problem in those work settings.

Fire station lawsuit is “Exhibit A” of boys’ club mentality

The Justice Department has filed a discrimination lawsuit against the City of Houston. The suit alleges years of egregious harassment against three female firefighters – the only female firefighters – who worked at Houston’s Station 54 firehouse. The lawsuit describes male firefighters behaving badly in a concerted campaign: Racial epithets. Death threats. Ostracizing. Juvenile pranks. Mocking a woman’s dead daughter. And literally marking their territory in the women’s dorm – urinating on toilet seats, urinating on the carpet and defecating in the women’s toilet after covering up the flushing sensor.

It’s definitely a guy thing

While the misconduct alleged at Station 54 is over the top, it fits a pattern. Gender discrimination, a hostile work environment and sexual harassment are often worst in traditionally male occupations: firefighting, dock work, auto repair, law enforcement, computer programming, engineering, construction and landscaping, to name a few. The higher the ratio of men, the more pervasive or brazen the misconduct is likely to be.

The Pew survey noted that women in male-dominated workplaces do not differ much from women in gender-balanced or majority-female workplaces. They have similar demographics as far as age, education, race and ethnicity. The variable is male attitudes toward their female co-workers and subordinates. Many men in majority-male fields view women not as equals but intruders. Management sets a poor example or downplays complaints.

In the #MeToo era, fewer women are willing to put up with the status quo.

This blog was originally published at Passman & Kaplan, P.C., Attorneys at Law on March 15, 2018. Reprinted with permission.

About the Authors: Founded in 1990 by Edward H. Passman and Joseph V. Kaplan, Passman & Kaplan, P.C., Attorneys at Law, is focused on protecting the rights of federal employees and promoting workplace fairness.  The attorneys of Passman & Kaplan (Edward H. Passman, Joseph V. Kaplan, Adria S. Zeldin, Andrew J. Perlmutter, Johnathan P. Lloyd and Erik D. Snyder) represent federal employees before the Equal Employment Opportunity Commission (EEOC), the Merit Systems Protection Board (MSPB), the Office of Special Counsel (OSC), the Office of Personnel Management (OPM) and other federal administrative agencies, and also represent employees in U.S. District and Appeals Courts.

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