Outten & Golden: Empowering Employees in the Workplace

Posts Tagged ‘sexual harassment’

House of Representatives has a sexual harassment policy — but it’s designed to protect the harasser

Wednesday, November 15th, 2017

House lawmakers met on Capitol Hill Tuesday to review the chamber’s sexual harassment policies. This review process comes on the heels of sweeping allegations of sexual misconduct and harassment among some of the nation’s most powerful institutions and industries — including the U.S. Congress.

In her opening statement, Rep. Barbara Comstock (R-VA) told the story of a young female staffer who was subject to sexual harassment from a sitting Congressman.

“This member asked a staffer to bring them over some materials to their residence. And a young staffer — it was a young woman — went there and was greeted with a member in a towel. It was a male, who then invited her in. At that point, he decided to expose himself,” Comstock said. “She left, and then she quit her job.”

Over 1,500 former Hill staffers have signed a letter calling for a formal review of the “inadequate” congressional sexual harassment policies in the wake of such incidents.

Lawmakers like Rep. Jackie Speier (D-CA) have previously shared their own stories of sexual harassment from their years working as aides on the Hill.

Speier — who shared a story on Twitter back in October about a congressional chief of staff who had once “stuck his tongue down her throat” — testified before the panel on Tuesday and disclosed there are at least two sitting members of Congress, one Democrat and one Republican, who have engaged in sexual harassment. She stated some victims have admitted to having their “private parts grabbed on the House floor” by members. Speier didn’t disclose the names of the members and said these cases have not yet been reviewed.

The reason for that is likely that the process for reporting sexual harassment in the House is so extensive and geared towards protecting the harasser.

As Speier noted in the hearing, successful claims against a House employee require the victim to sign a non-disclosure agreement (NDA). Any settlements made to the victim are taxpayer-funded and never disclosed, the identity of the accused also remains anonymous. Additionally, interns and fellows do not have access to this process, leaving them with nowhere to turn should they be sexually harassed by a member of Congress.

Currently, there is no required sexual harassment training in the House of Representatives, but rather, individual offices may have their staff attend training sessions offered by the Office of Compliance. The head of that department said during testimony on Tuesday that they have made multiple recommendations to Congress to mandate sexual harassment training for all employees since 2010.

Just last week, the Senate passed a resolution that required mandatory sexual harassment training for all members, including staffers, interns, and the lawmakers themselves.

Following the Committee on House Administration hearing on Tuesday, House Speaker Paul Ryan (R-WI) released a statement calling for mandatory sexual harassment training in the chamber.

“Today’s hearing was another important step in our efforts to combat sexual harassment and ensure a safe workplace. I want to especially thank my colleagues who shared their stories. Going forward, the House will adopt a policy of mandatory anti-harassment and anti-discrimination training for all Members and staff. Our goal is not only to raise awareness, but also make abundantly clear that harassment in any form has no place in this institution. As we work with the Administration, Ethics, and Rules committees to implement mandatory training, we will continue our review to make sure the right policies and resources are in place to prevent and report harassment.”

This article was originally published at ThinkProgress on November 14, 2017. Reprinted with permission.
About the Author: Rebekah Entralgo is a reporter at ThinkProgress. Previously she was a news assistant and social media coordinator at NPR, where she covered presidential conflicts of interest and ethics coverage. Before moving to Washington, she was an intern reporter at NPR member stations WLRN in Miami and WFSU in Tallahassee, Florida. She holds a B.A in Editing, Writing, and Media with a minor in political science from Florida State University

For Women Restaurant Workers, Sexual Harassment Starts with the Day You’re Hired

Thursday, November 9th, 2017

Anyone who has ever scanned Craigslist for a restaurant job knows the boilerplate “will train the right person,” code for, among other things, “Be young and have a nice ass.” I have two (attractive, blonde) female colleagues who got their first serving jobs at 19 on the supposed basis of their scores on the restaurant giant Darden’s infamous personality test. The first guy who ever hired me to wait tables said he liked my writing in my personal statement.

No one is innately or instantly good at waiting tables. Training someone who has never worked in a restaurant involves several long weeks of physically and mentally exhausting serial humiliation during which time she is likely, perversely, to be the restaurant’s most expensive front-of house employee, since until she is eligible to earn tips she has to be paid the ghastly sum that is the full minimum wage. The “right person” is likely to be the target, until a new right person supplants her, of so much hostility and derision from the chefs and the cooks and the food runners and the bartenders and the managers who didn’t hire her, and the other waiters and waitresses forced to train her, that the sexual harassment that results inevitably from being hired for her looks/intangibles/etc. is likely to seem, at first anyway, like the least of her problems. At first.

The dress code at my first restaurant job consisted, for women, of a black miniskirt, ballet flats and neutral makeup during the week and black minidress, slouchy boots, red lipstick and “statement jewelry” on the weekends. For dudes, it was a black shirt and jeans at all times. None of the dudes had been hired on the basis of their potential to prove themselves “the right person”; they’d all been servers at big strip mall chains and, before that, food runners and bussers and barbacks. They had collective decades of advanced tray carrying experience on us: The youngest female server had just turned 19, the youngest male was 27, and that was a fairly standard state of affairs at restaurants willing to administer Remedial Restaurant 101 to “the right person.” It would be hard to design a context more conducive to being sexually harassed by co-workers, and indeed, like 80 percent of women restaurant workers in a 2014 Restaurant Opportunities Center United (ROC United) survey, we all were.

We experienced sexual harassment from customers, too (as did nearly 80 percent in the ROC United survey)—the entire point of making female servers dress a certain way is to entice customers, not managers or coworkers. But as in any field, it’s the harassment from bosses and superiors—the guys who decide whether you’ll be waiting on three tables or ten tonight, who can choose to help you or chastise you if the hosts stick you with five two tops all at once and you get behind, the guys you see every fucking day—that really gets to you. Even the handsiest dirty old man customer has to compete with a dozen other dinner guests for your attention, and if he’s really that creepy the hosts won’t let him sit in your section—or depending on his spending habits/status/infractions, any woman’s section—again. (Also, there’s always the chance creepy old man leaves a 40 percent tip, in which case, and depending on the infraction, he is roughly 90 percent forgiven.) 

I was fired from my first job after two weeks, when the guy who hired me went on vacation. The firing was done by a nervous-looking fellow who’d spoken all of three words to me and gave no reason at all. For months afterward, I was still fielding flirtatious texts from the fortysomething ex-Marine I’d been assigned to shadow during my brief employment. (He thought he could get me hired back.) My friend Liz, who worked for an enormous restaurant chain, survived hazing to win the “most improved server” award after a year during which she learned “to finally not suck,” but one of her managers regularly slapped her ass on the floor (even after she started whipping out her lighter and threatening to burn him whenever he approached) and another would regularly creep up and massage her shoulder blades—oh to have a nickel for every unwanted shoulder massage!—while she was ringing in orders.

And that’s par for the course at a massive publicly traded company with a huge human resources department. My current restaurant group has no HR department, despite employing close to a thousand people (among them a half dozen “guest relations” staffers whose full time job it is to pore over the responses to our incessant feedback emails for negative reviews.) The response to sexual harassment claims varies depending on who is doing the harassing and who is responding to the complaint: The chefs recently fired a cook for repeatedly cornering a cocktail waitress in the underground parking lot to ask for dates, but a food runner who complained last year of being constantly harassed for sex by an executive manager was simply transferred to another restaurant. Nor was there an HR department at Besh Hospitality Group, the 1,200-employee restaurant group helmed by Louisiana celebrity chef John Besh, until the publication last month of an expose in which 25 separate women accused the chef of fostering a Playboy Mansion-esque corporate culture and forcing himself (and inflicting what can only be described as two years of veritable sex slavery) upon a young female subordinate. I don’t want to make too much of this: “Human resources” as a field originated primarily as a union avoidance scheme; its practitioners are inherently adversarial to the interests of employees. But if nothing else, the presence of someone, anyone, devoted to the function can—maybe?—serve as a deterrent to the worst behavior, or a psychological comfort to someone who knows she is being mistreated. A union could help, but you could probably fit the number of unionized non-hotel American restaurant workers inside my restaurant.

Without any third party nominally devoted to employment law compliance, bosses operate with total impunity, as a friend of mine learned when her manager attacked her in the office when she was working as a nightclub bartender in her early twenties. “He was always known as ‘the groper’ and it was just kind of this hilarious joke,” she recalls. “He had an Asian fetish and that was a joke, too. I worked with him for two or three years and nothing happened. Then one night I needed cash in the middle of my shift, and I went into the office and he’s putting his hand up my skirt. I ran out, and after that he suddenly started acting really serious with me. One night in the middle of service, he called me into the office and showed me a video of me serving a guest, then immediately serving another and explained that I had just given a drink away without ringing it in—which was probably because she or someone in her group had a tab—but anyway, therefore I was being fired for stealing. I didn’t even argue. I just felt like I had no voice and would be forever known as ‘that girl.’”

It’s hard to say what exactly she means by “that girl.” Every restaurant is haunted by a few apocryphal tales of “that girl” who slipped on a piece of pasta while cutting in line for staff meal and successfully sued for nine months of worker’s comp, or forgot her hairnet the day the health inspector came and shut down the restaurant during service, or had some conflict with the only prep cook who could properly execute the foie gras parfait—and now we can’t eat in the back hallway/chop vegetables during staff meal/have nice things/etc. “That girl” isn’t always a girl—and the stories often have some basis in reality—but it is generally some employee whose defining quality is incompetence/disposability. Women who work in restaurants are exponentially more likely to feel acutely disposable in any given context, I think because we so often start in semi-ornamental roles, whether as barely-competent server trainees hired for our intangible qualities, or as hostesses hired to stand at the front of the restaurant and apologize profusely for the circumstances that led to all the riverside tables being occupied right now.  

A parallel, albeit more nuanced imbalance exists on the other side of the kitchen doors, where you will never, ever, ever find a woman washing dishes (typically, you will find a Latino man in trash bags doing the job) and you will virtually never find a woman grilling steaks, but you’ll find lots of women polishing glasses and arranging edible flowers on salads and piping meticulous domes and Hershey kisses and happy birthday messages out of oversized pastry bags. Women culinary workers who venture outside their assigned ghettos are often made to feel sorry they tried, via sexual assault and humiliation: A chef I know was fired from her first job in fine dining after the sous chef she’d theretofore considered a mentor shoved his crotch into her hands inside a walk-in refrigerator. She told people the story; soon after, she was fired over a small infraction—being late for a shift. She believes they feared she’d report the assault and wanted her gone.

Which brings me to a rare redeeming trait of the industry’s gender dynamics: As rampant as sexually inappropriate behavior is, there is also a severe shortage of private spaces in which that behavior has the opportunity to rise to full-fledged assault. (This is not to say assault doesn’t find places to happen: An August lawsuit detailing the “rape culture” pervading the—unionized!—Plaza Hotel described the coatroom as a go-to unsafe space for uninvited groping, and a Texas jury last year awarded $7.65 million to a teenage Chipotle employee whose manager raped her in the bathroom, the back office and by the dumpster outside in the parking lot.) There are no private offices and very few hotel suites, and the amount of time in a day the typical restaurant manager or server or even dishwasher or coat check girl can plausibly spend away from the kitchen or the floor is measured in minutes. Most importantly, the industry itself is fragmented and dispersed, its ultimate product hopelessly chained to an old-fashioned distribution system that relies on vast armies of human laborers, not an exclusive clique of “It Girl” starlets. There are thousands of chefs and restaurants with Michelin stars and James Beard awards and cookbooks and reality television appearances, and none of them can even begin to approach, even on a regional level, the influence or reach Harvey Weinstein exerted in Hollywood. That might be the biggest reason I don’t know anyone who has been seriously long-term traumatized by restaurant industry sleazebaggery the way certain journalist and media friends have been left utterly devastated by their relationships with various “predators”—no one person, in restaurants, can destroy your livelihood or render you long-term unemployable.

And yet over the long term I think all the women I know intend to lose the war of attrition with this industry. ROC United found that a third of women who had quit the restaurant industry after working in tipped positions did so because of unwanted sexual behavior. The diminishing financial returns are no longer worth the accumulated microaggressions—and it gets to the point where every friendly high-five between male colleagues in the line for staff meal feels like a tiny ulcer. I have been waiting tables for longer than I ever intended, and since graduating from the prime sexual harassment demographic, the rare lecherous remark is almost flattering. I look young enough that I should have a good five to seven years left before I find myself mysteriously demoted or taken off the schedule (the fate that tends to befall middle aged servers at Darden-owned Seasons 52, whose age discrimination case goes to trial this month.) But I still don’t make nearly as much money as male colleagues who regularly make stupid mistakes and get negative guest feedback and come to work viciously hungover—and neither do any of the female servers (save the one hypercompetitive twentysomething wunderkind who through sheer force of singleminded perfection and dogged sycophancy gets as many VIP tables as the mediocre bro types.) According to ROC United, full-time female servers make 68 cents for every dollar earned by their male counterparts.

But the most damaging legacy of our profession’s institutional sexual harassment may be the lasting perception that whatever we have achieved in the industry we owe to the fact that someone, at some point, just wanted to get in our pants.

This piece was originally published at In These Times on November 9, 2017. Reprinted with permission.

About the Author: The author works as a server in a restaurant. Ursula Buffay is a pseudonym.

Do Nondisclosure Agreements Perpetuate a Toxic Workplace Culture?

Thursday, November 2nd, 2017

In Hollywood, the cat is out of the bag. Scores of women (and men) are pouring out pent-up tales of sexual assaults and sexual harassment by famous producers, directors and actors. Every day brings new accusations against some movie icon. A group of women at Weinstein Co. has asked to be released from nondisclosure agreements so they can speak publicly to Harvey Weinstein’s alleged decades of predatory abuse and brazen quid pro quo demands.

The mere fact that an entire group of employees at one company is seeking to be unmuzzled is testament to a deep problem. Nor is it limited to the entertainment industry. NDAs and “hush money” settlements are common in every employment sector, including government agencies.

Sweeping it under the rug … until someone notices the lumps

There are two types of nondisclosure agreements at play in scenarios like the Weinstein saga:

First, there are standard NDAs in employment contracts which prevent employees from speaking up about what they’ve seen or experienced. These are a preemptive strike against disclosures that would reflect negatively on the company. When victims, witnesses and allies are effectively gagged, offenders are off the hook and a culture that tolerates sexual harassment is perpetuated.

Second, there are nondisclosure “agreements” thrust upon victims after the fact when they report harassment/assault or threaten legal action. In exchange for a payoff and/or a specifically worded NDA, they keep their jobs or walk away with a settlement and never speak of it again. The alternative is the threat of being blacklisted and smeared.
Again, this dynamic is not unique to Hollywood. Sexual harassment and coerced silence happens in every industry.

How nondisclosure agreements inhibit sexual harassment claims

A few mavericks have violated their NDAs with the Weinstein Co., knowing the company would face fierce public backlash if it tried to enforce the confidentiality agreements. But most people who are subject to NDAs do not have the upper hand. They can be terminated, sued and “outed” for breaching the agreement. The contract may specify monetary damages greater than the original settlement.

One-third of the 90,000 complaints to the Equal Employment Opportunities Commission in 2015 involved workplace harassment. About 45 percent of those cases were sexual harassment. A report by the EEOC revealed that taking formal action is the least common response for women or men who reported being sexually harassed at work.

Why would they not file a formal complaint or lawsuit? Some fear termination or other retaliation. Others fear they won’t be believed or that nothing will change. And some take no action because their hands are tied by employment agreements.

Many employment contracts and NDAs require that claims against the employer – including sexual harassment — be resolved through arbitration. Employers favor mandatory arbitration clauses because (a) there is no risk of a big jury award and (b) the proceedings are private. Whatever the outcome, it is kept quiet. For victims of sexual harassment who want their abuser exposed, arbitration is a dead end.

Nondisclosure agreements are not ironclad

The mere threat of enforcing an NDA is very effective. Some victims do not want the public exposure, expense and stress. Settling and staying mum was their way of making the best of an awful ordeal and moving on.

However, NDAs are not as bulletproof as most employees think. No employment agreement can supercede state or federal laws. A victim of a crime cannot be prevented from talking to police or testifying in court. An employer cannot prevent an employee from reporting sexual harassment to the EEOC. A settlement agreement and NDA only prevents the employee from suing the company and speaking publicly about the incident. And if the agreement was overreaching or coerced, it may not be enforceable.

If you are subject to a nondisclosure agreement, you also cannot be barred from talking to a lawyer. An employment law attorney can explain your rights, your legal options, and any possible consequences of breaching the NDA.

This blog was originally published at Passman & Kaplan, P.C., Attorneys at Law on November 3, 2017. 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.

The pay gap and sexual harassment must be addressed simultaneously

Wednesday, October 25th, 2017

Over the past few days, more and more men have continued to resign or at the very least publicly confront accusations of sexual harassment, and this trend shows no sign of slowing down.

On Wednesday, former President George H.W. Bush apologized for groping actress Heather Lind (with a caveat that it was an “attempt at humor“). On Tuesday, Leon Wieseltier, former literary editor of The New Republic, apologizedfor “offenses against some of my colleagues in the past” after Emerson Collective, a for-profit organization, stopped supporting Wieseltier’s project, a new magazine. On Monday, a top labor executive who led the Fight for 15 campaign resigned. Former and current Service Employees International Union (SEIU) staffers told BuzzFeed that SEIU Executive Vice President Scott Courtney had sexual relationships with young female staffers who were later promoted. Last Friday, Lockhart Steele, editorial director at Vox Media, was removed from his position after a former Vox employee, Eden Rohatensky, wrote a post on Medium that led to a company investigation. (Rohatensky did not mention Vox or anyone at Vox by name but did say “one of the company’s VPs” put his hands on them and started kissing them.)

The alleged sexual harassment and assault has ranged from the entertainment industry to the financial industry. On Sunday, The Wall Street Journal reported that Fidelity, a financial services corporation, has its own problems with sexual harassment. Also on Sunday, the Los Angeles Times reported that 38 women came forward to accuse Director James Toback of sexual harassment. It took a few hours for the number of women accusing Toback to double, and now, the reporter says that a total of 193 women contacted him since his initial expose.

But if companies are going to tamp down on sexual harassment, they need to do more than spend money on sexual harassment training and hope that’s enough. As Vox reported, sexual harassment trainings have become a legal precaution more than anything, and the data shows that they are not effective at lowering incidents of harassment. Trainings often help people realize what counts as workplace harassment, but they don’t actually change change their views or actions. Instead of simply holding trainings and hope they work, employers must make it clear that there is a culture of accountability and transparency for everyone, even executives and people who consistently provide results for the company — or the “rainmakers.” They also have to ask themselves important questions about the performance review process and how it determines pay, because women’s lack of economic power in their workplaces often makes them vulnerable targets for sexual harassment. Are senior employees held accountable for their biases in performance reviews?

Brit Marling emphasized this point when she told her own story about sexual harassment and a meeting with Harvey Weinstein that sounds like so many others. As in many other cases, Weinstein’s assistant said the meeting had been moved from a hotel bar to his hotel suite. When she got there, Weinstein asked her to shower with him. She left the room, but as it all unfolded, Marling said she was very aware of the power he had over her career. She wrote:

Men hold most of the world’s wealth. In fact, just eight men own the same wealth as 3.6 billion people who make up the poorer half of humanity, the majority of whom, according to Oxfam, are women. As a gender whole, women are poor. This means that, in part, stopping sexual harassment and abuse will involve fighting for wage parity.

Last year, the gender wage gap widened, according to a March Institute for Women’s Policy Research analysis. The ratio of median weekly earnings for women working full time compared to men decreased by 1.4 percent. Even improvements in the economy don’t help women get better-paying jobs, since those usually go to men, in part because of occupational segregation that pays women less when they are in fields dominated by women.

Bias in performance reviews certainly doesn’t help. Paola Cecchi-Dimeglio, a postdoctoral research fellow at Harvard University, shared her findings on individual annual performance reviews and bias in Harvard Business Review. Cecchi-Dimeglio found that women were 1.4 times more likely to receive critical subjective feedback, not positive feedback or critical objective feedback and that traits that were considered negative in women were often interpreted as positive in men. Where a man was considered careful for taking his time on a project, a woman was told she had “analysis paralysis.” Women’s successful performance in the office was often perceived to be the result of hard work or luck rather than abilities and skills.

Cecchi-Dimeglio said that the solution to dealing with some of these issues of gender bias include using more objective criteria, making reviews more frequent, which appeared to cut down on gender bias, and using a broader group of reviewers. A 2008 study by Emilio Castilla focused on the impact of lack of transparency and accountability on performance appraisal and performance pay.It found that employers adopting merit-based practices and policies, which are meant to motivate employees and foster a meritocracy, can actually increase bias and reduce equity in the workplace if the policies have limited transparency and accountability. The study noted that some experts on performance evaluation practices say that there should a separation of performance appraisals and salary discussion, in part because employees will focus more on the monetary amount they receive than the feedback, and managers can “manipulate performance ratings to justify salary increases” they want to give to certain employees.

Another 2012 study also reinforces the idea that transparency and accountability are central to dealing with pay inequities. Janice Fanning Madden, a Wharton real estate professor and a professor of regional science and sociology at the University of Pennsylvania, looked at the gender pay gap among stockbrokers.Madden found found that women were assigned inferior accounts, so they would earn lower returns and commissions, and as a result, they would be less likely to receive support staff, nice offices, and mentors. Using information about sales transferred by management from one broker to another, she analyzed performance and found that when women had clients who had the same potential for high commissions, they produced the sales results as men. This demonstrates the need for accountability for senior executives who are as subject to gender bias as anyone else.

Ariane Hegewisch, a researcher at the Institute for Women’s Policy Research who focuses on workplace discrimination, said that although Fidelity’s performance evaluation system, which women at the company have been critical of, may appear to be fair, it is lacking accountability for senior management. Hegewisch gave an example of a common problem in businesses and organizations.

“So the section heads have been told you have the power to assess people and there doesn’t seem to be a lot of control or monitoring of what they are doing,” Hegewisch said. “There are organizations where the HR department scrutinizes what section heads do and that has an element of performance accountability for those decisions, and that seems to be missing to some extent in the Fidelity system.”

Hegewisch added, “What it is interesting about this is that it was clearly not only women who felt aggrieved by this system. It was also some men who said it was unfair and led to inequitable outcomes and to favoritism.”

When it comes to sexual harassment claims, the situation is similar, Hegewisch added. People need to know that there is accountability for senior employees and rainmakers. There also needs to be transparency so that people know why someone left the company.

You can’t have the best designed systems if the culture is not supportive or the hierarchy is not seen as supportive. It will not generate the results that you want,” Hegewisch said. “We’ve told organizations to set up external complaint lines for sexual harassment cases. And then it turns out that in some organizations, they hand it over to HR and tell them who it is and nothing happens anyway.”

Even if a company is handling sexual harassment claims well, it needs to clear to employees what happened or why someone was dismissed. Of course, there are sometimes legal barriers to companies disclosing information about someone’s misconduct.

“If you do the right thing and pretend it was for a different reason, [it matters that employees] know about it and believe this was a way the company is backing them up when something like this happens. You have to be able to communicate it and if you can’t communicate it, you’re tying yourself up,” she said.

When it comes to reporting harassment, Hegewisch said, “There has to be some proof that people can take away that this is an issue that is serious that the company takes seriously.”

That means setting up systems to keep senior managers in check, not simply setting up a training for employees on what sexual harassment is. Since 2010, harassment complaints at the federal level stagnated or slightly rose, according to recent Equal Employment Opportunity Commission (EEOC) data. The report explained that the sexual harassment training provided over the past few decades has not been effective as a prevention tool, according to an EEOC report.

Researchers also recommend that employers try to achieve a gender balance at every level of their organization to reduce harassment and that employers need to provide assurances that people who report harassment will not be retaliated against. They need to guarantee protection against non-employer retaliation and confidentiality of complaints, when possible. The policies on how to report harassment should be clear to employees and any training on harassment should include an explanation of what constitutes employer retaliation.

This article was originally published at ThinkProgress on October 25, 2017. Reprinted with permission.

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

Forced Arbitration Protects Sexual Predators and Corporate Wrongdoing

Tuesday, October 24th, 2017

Fox News.  Sterling Jewelers.  Wells Fargo. 

What do they all have in common?  For years, they successfully kept corporate wrongdoing secret, through forced arbitration.

Buried in the fine print of employment contracts and consumer agreements, forced arbitration clauses prohibit you from going to court to enforce your rights.  Instead, employees who experience harassment and discrimination, or consumers who are the victims of financial fraud or illegal fees, are sent to a private arbitration forum.  Frequently designed, chosen, and paid for by the employer or corporation, in arbitration everything is conducted in secret. People who suffered the same abuses often can’t join together to show how rampant a problem is and confront a powerful adversary—and people are less likely to come forward at all, because they have no idea they aren’t alone.

When Gretchen Carlson sought her day in court over sexual harassment allegations against Roger Ailes, her former boss at Fox News, Mr. Ailes’s lawyers had a quick response: send the case to forced arbitration.  After she filed suit, he also invoked a clause that reportedly required absolute secrecy: “all filings, evidence and testimony connected with arbitration, and all relevant allegations and events leading up to the arbitration, shall be held in strict confidence.” It was only because she resisted that clause through a creative legal theory that her allegations were made public—unleashing a tsunami of claims of sexual harassment by Ailes and others at Fox News.

Hundreds and maybe thousands of former employees of Sterling Jewelers, the multibillion-dollar conglomerate behind Jared the Galleria of Jewelry and Kay Jewelers, known for advertising slogans such as “Every kiss begins with Kay,” were allegedly groped, demeaned, and urged to sexually cater to their bosses to stay employed.  The evidence of apparent rampant sexual assault was kept secret for years from other survivors and the general public through gag orders imposed in forced arbitration.

The same thing happened at American Apparel, where employees and models were forced to arbitrate sexual harassment claims and keep the details secret, and the proceedings were reportedly a sham.

We don’t yet know if Hollywood producer Harvey Weinstein used forced arbitration to suppress allegations of his decades-long campaign of sexually harassing, abusing, and assaulting young assistants, temps, employees and executives at the Weinstein Company and Miramax.  But the clauses may well have played a role, and his nondisclosure agreements and secret one-by-one settlements worked to the same effect.

And forced arbitration clauses do not only hide wrongdoing in sexual harassment cases.  Corporations also use forced arbitration to isolate victims and cover up massive, widespread wrongdoing in the financial sector.

For example, forced arbitration clauses found in legitimate customer accounts let Wells Fargo block lawsuits related to the 3.5 million sham accounts it opened; as a result it kept its massive scandal secret for years, and then lied to Congress about it.  People began trying to sue Wells Fargo in 2013, but cases were pushed out of our public courts into secret arbitrations, and Wells Fargo continued creating fake accounts.

KeyBank, like Wells Fargo, has also used forced arbitration to keep disputes secret and block relief for people charged overdraft fees when their accounts weren’t overdrawn.  A court recently ruled “unconscionable” KeyBank’s provision requiring a customer to “keep confidential any decision of an arbitrator.”  But the court allowed KeyBank to force the plaintiff to arbitrate his case individually, despite the fact that thousands or millions of KeyBank customers were subject to the same abuses. These customers were not permitted to come together to challenge these abuses as a group in court, because of forced arbitration.

By imposing secrecy and isolating victims, forced arbitration shields corporate wrongdoing and leaves it more difficult for those harmed to hold the wrongdoers accountable.  That’s why the Consumer Financial Protection Bureau issued a rule earlier this year prohibiting banks, payday lenders and other financial companies from using forced arbitration to cover up widespread frauds, scams and abuses.  This is a first step in the right direction of restoring Americans’ rights to challenge predatory practices.  But some in Congress have threatened to block this important protection. 

Earlier this year, Congress and President Trump overturned rules that prohibited employers with federal contracts from forcing employees to arbitrate sexual harassment or sexual assault claims, or claims alleging discrimination on the basis of sex, race, or religion.  In so doing, they took power away from women facing sexual harassment and returned it to those trying desperately to keep that harassment under wraps.

We cannot tolerate another blow against Americans seeking to hold the wealthy and powerful accountable.  The CFPB’s rule must be permitted to go forward. 

This blog was originally published at Public Citizen Litigation Group’s Consumer Law & Policy Blog on October 23, 2017. Reprinted with permission. 

About the Author: Emily Martin is General Counsel and Vice President for Workplace Justice at the National Women’s Law Center. She oversees the Center’s advocacy, policy, and education efforts to ensure fair treatment and equal opportunity for women at work and to achieve the workplace standards that allow all women to achieve and succeed, with a particular focus on the obstacles that confront women in low-wage jobs and women of color.

The National Park Service has a serious workplace harassment problem

Tuesday, October 17th, 2017

In a week that has exposed the pervasiveness of sexual harassment in Hollywood, a new federal survey released Friday by the Department of the Interior points to a similar culture within the agency’s National Park Service (NPS).

According to the survey, some 39 percent of NPS employees say they have experienced harassment or discrimination on the job. “In the last year, over 10 percent of NPS employees experienced sexual harassment, almost 20 percent reported experiencing gender-based harassment, and 0.95 percent reported experiencing sexual assault,” Buzzfeed reported.

The survey also shows a lack of faith in the federal agency to take care of their employees whenever they experience any kind of harassment. Seventy-five percent of National Park Service employees who said they had been harassed said they did not report the incidents, with half of that group citing their concerns that it wouldn’t have made difference anyway. Thirty-three percent explicitly stated that they “did not trust the process.”

In January of 2016 the Department of the Interior’s Office of Inspector General reported that it had “found evidence of a long-term pattern of sexual harassment and hostile work environment” in multiple national parks, including the Grand Canyon National Park’s River District, the Chattahoochee River National Recreation Area in Georgia, and De Soto National Memorial in Florida.

As with any occupation that is rooted in “outdoors culture,” an emphasis is placed on masculinity in the Park Service, often resulting in a lack of female park rangers.

In Texas, where only 8 percent of the state’s 500 game wardens were women, some members of the Parks and Wildlife Department complained to the state in 2012 about a “legacy” of racial and gender intolerance, according to in-depth reporting by HuffPost. Similarly, female employees of the U.S. Forest Service in California filed a class-action lawsuit in 2014 over the same issues women in the Texas parks service were facing.

The Department of the Interior has begun to take steps to address the numerous allegations of harassment and discrimination that have seemingly flown under the radar or been ignored for decades. Ahead of the release of the survey, the agency said it would add more staff to the NPS Employee Relations and Labor Relations team, in addition to backing employee support groups and training sessions.

In a Friday news conference at the Grand Canyon, Interior Secretary Ryan Zinke addressed his commitment to ending the culture of harassment at the NPS.

“In the past, ‘zero tolerance’ has been an empty phrase — instead of taking action, our leadership fell back and took no action at all,” said Zinke. “That’s over. We’re going to root out this virus, and it begins with putting a new culture in place that embraces the best of the Park Service’s values.”

This article was originally published at ThinkProgress on October 12, 2017. Reprinted with permission. 

About the Author: Rebekah Entralgo is a reporter at ThinkProgress. Previously she was a news assistant and social media coordinator at NPR, where she covered presidential conflicts of interest and ethics coverage. Before moving to Washington, she was an intern reporter at NPR member stations WLRN in Miami and WFSU in Tallahassee, Florida. She holds a B.A in Editing, Writing, and Media with a minor in political science from Florida State University.

Stop asking women to change to make men feel comfortable in the workplace

Wednesday, October 11th, 2017

Numerous women have said that film producer Harvey Weinstein sexually harassed or raped them. But rather than blaming the man responsible for the sexual assault, conservative commentators, former White House officials, and journalists alike are turning their focus on eliminating interaction between men and women.

Last week, the New York Times published an investigation on the experiences of actresses who were alone with Weinstein and the allegations of sexual harassment and sexual assault against Weinstein, which occurred over the span of three decades. On Tuesday, The New Yorker published an article detailing the experiences of multiple women in excruciating detail. It also exposed the ways in which the industry protected Weinstein and how his employees helped him meet women, despite their discomfort in doing so.

Weinstein has been fired from the company he co-founded, and A-list celebrities, such as Meryl Streep, Viola Davis, Judy Dench, George Clooney, and Jennifer Lawrence, have spoken out against him and his treatment of women he worked with. On Tuesday, Weinstein’s wife of a decade, Georgina Chapman, said she’s leaving him. On the surface level, it seems that Weinstein’s career is over and that his accusers have found justice. But the response to the Weinstein sexual harassment reports proves that instead of putting blame where it belongs — on sexual predators — some men are still interested in blaming women and their presence in the office for their own abuse.

Former deputy assistant to President Donald Trump, Sebastian Gorka, tweeted that all of these sexual assaults could have been avoided if Weinstein simply didn’t meet with women one-on-one. He referred to Vice President Mike Pence’s rule of not eating alone with any woman other than his wife, Karen, and suggested if Weinstein simply hadn’t met with women alone, he wouldn’t have assaulted them.

Gorka’s tweet laid bare the real argument that is being made when men say they can’t be alone with women. It perpetuates the cultural pretense that when men are sexually violent, it is simply an impulsive mistake, a part of their nature that they can’t control, instead of a decision they made to prey on particular women they know they can control or whose reports won’t later be believed. The New Yorker’s investigation into Weinstein’s alleged sexual assaults clearly shows that his decisions were calculated and followed a pattern. For example, Weinstein reportedly used female executives to give the women he harassed a false sense of security before he met with them alone. The New Yorker piece read:

Some employees said that they were enlisted in subterfuge to make the victims feel safe. A female executive with the company described how Weinstein assistants and others served as a ‘honeypot’—they would initially join a meeting, but then Weinstein would dismiss them, leaving him alone with the woman.

Other men noted that women shouldn’t have met with Weinstein in hotel rooms, as if Weinstein didn’t also sexually assault women in his own place of business.

Weinstein used every tool available to him to manipulate women into meeting with him, including his colleagues and the impunity he enjoyed at his workplace. One of Weinstein’s producers told a woman that she was meeting several people for a Miramax party at a hotel, but when the woman arrived and the producer led her to the room, Weinstein was the only person there, according to the New Yorker. Weinstein also reportedly sexually assaulted a woman during daylight hours inside his Miramax office. He expected that some of the women he harassed and assaulted would speak out, and he made the consequences clear to them. The reporting on Weinstein shows that he is a man who knew how to intimidate and control women to force himself on them and keep them silent. There is nothing accidental about it. He was inventive, cunning, and powerful enough that a formal workplace culture never would have stopped him from sexually assaulting women.

Still, none of these details have stopped people from suggesting that a different kind of workplace would have solved the Harvey Weinstein problem and magically stop men from sexually harassing women. Josh Barro, a senior editor at Business Insider, wrote that the real problem is fun office cultures. Barro wrote for Business Insider:

But there are industries with cultures that involve after-hours social activities that blur the lines between business and leisure and can easily appear inappropriate for colleagues who could be suspected of sexual involvement.

Barro doesn’t think that getting rid of after-hours socializing will hurt women. He thinks it will break up all-male networks. To that, I laugh heartily. Men may not go to official after-hours events that their boss encourages them to attend, but such a ban certainly doesn’t prevent men from meeting with each other after work (and why should it?). The only result is that there isn’t an official employer-endorsed space for both men and women to gather. If women already feel shamed for meeting with men alone, it certainly won’t help for employers to make mixed-gender socializing seem strange, or even harmful.

In response to the Times piece detailing men’s concerns about accusations of sexual harassment or the “appearance of impropriety,” Barro wrote that instead of dismissing these men’s fears, the whole office culture must adapt to them and their concerns. He said it requires more than “just the hand wave of ‘don’t harass women, it’s simple.’”

But it is that simple. The office culture that needs to be destroyed is not one that has happy hours. It’s one that has no real system of accountability for powerful men who could easily crush the careers of their subordinates. The reports about Weinstein follow a series of high-profile sexual harassment cases across a range of industries over the last year, including Fox News personalitiesactorsmusicians, and Silicon Valley investors and executives.

Still, Barro isn’t alone. The flurry of reports of sexual harassment have caused some men to decide to avoid one-on-one interactions with women altogether. As one orthopedic surgeon told the New York Times, “I’m very cautious about it because my livelihood is on the line. If someone in your hospital says you had inappropriate contact with this woman, you get suspended for an investigation, and your life is over. Does that ever leave you?”

The men interviewed didn’t mention the effects sexual harassment has on the career of the women who come forward, nor did they appear to understand the career risks women take to report sexual harassment. If they did, they might understand that it is not a flippant choice. By saying they’re not interested in interacting with women because they’re scared of sexual harassment allegations, these men demonstrate one of the main reasons why women don’t come forward with allegations sooner: they don’t want to be shut out of career opportunities.

Unfortunately, this view is all too common. A 2010 Center for Talent Innovation study found that almost two-thirds of male executives said they stopped having one-on-one meetings with junior female employees because they feared that people would think they were having an affair. Nearly two-thirds of people interviewed for a May poll by Morning Consult said people should take caution when meeting with people of the opposite sex at work. Fears that other people may view their meetings as improper stop the majority of senior men from meeting with women, even though women’s careers benefit from having sponsors.

Demanding that entire industries that revolve around evening cocktails and building relationships with colleagues outside of work hours stop all off-hours socialization is unrealistic, but even if it were possible, it still wouldn’t prevent sexual harassment. Weinstein himself met with women in a variety of settings, but he also found ways to cleverly shift where and when meetings would take place. The former assistants and executives mentioned in the New Yorker piece, some of whom facilitated the meetings, said there was a “culture of silence” around sexual assault.

Other sexual harassment allegations show that men don’t need social events or “fun” workplace atmospheres to harass women. Regarding a sexual harassment case at SoFi, an online personal finance company, the plaintiff said that he saw his manager put “explicit sexual innuendo and statements into normal workplace communications.” A former Fox News host, Eric Bolling, was accused of sending lewd photos to his female colleagues via text message in August. Should male colleagues no longer send professional communication to all co-workers or have their female colleagues’ phone numbers? That would be ludicrous. The best solution is for men to be as considerate to their female colleagues as they are to their male colleagues, to no longer shut them out of business meetings for the sake of “appearances,” and to work to create an environment that supports their female colleagues when they do come forward with harassment allegations.

Here’s another thought: They could also stop sexual harassing women.

This blog was originally published at ThinkProgress on October 11, 2017. Reprinted with permission.

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

Sexual harassment of graduate students by faculty is a national problem

Tuesday, August 22nd, 2017

University of Wisconsin-Madison’s anonymous complaints of sexual harassment often rest on “institutional memory” and there is no actual requirement in place to document them, according to the Wisconsin State Journal.

There are two channels for sexual harassment reports at the university. Students and employees can file formal complaints, which results in an investigation by the Title IX coordinator’s office, or they can report through an informal resolution that lets accusers remain anonymous but does not allow the university to mete out more severe penalties.

UW-Madison officials told the Wisconsin State Journal that the university is working on clearer policies for both of these processes, but confirmed that there is no policy in place requiring employees to track anonymous complaints.

The lack of a formal system to track anonymous sexual harassment complaints is particularly troublesome given the number of complaints made against faculty members by co-workers or students at UW-Masison. It’s fairly common for female graduate students at the university to experience sexual harassment from faculty members. A 2015 survey on sexual misconduct found that of those women who experienced harassment, 22.2 percent reported that their harasser was a faculty member at UW-Madison.

Experts interviewed by the Wisconsin State Journal — Neena Chaudhry, director of education and senior counsel at the National Women’s Law Center, and Saunie Schuster, a co-founder of the Association of Title IX Administrators — said this is big problem for universities. Universities may not know that a faculty member is a serial harasser if they haven’t recorded multiple complaints, and the institution would be a legal target for sexual harassment victims.

The university responded to the Journal and said it is in the process of developing a system to record these allegations.

The University of Wisconsin-Madison is hardly alone, however. Universities across the country have poor policies to address harassers in their university systems, even if that person has harassed people multiple times. Some universities may actively protect faculty who are accused of harassment.

In March 2015, Sujit Choudhry, the dean at UC Berkeley School of Law, was accused of harassment by his executive assistant. Berkeley investigators found that he had in fact harassed his assistant Tyann Sorrell, but in April of this year, the university reached a deal with him anyway, allowing him to receive research funding, keep tenure, and avoid any charges. His pay was reduced 10 percent and he had to apologize to Sorrell, but even with his pay cut, he made $373,500 annually.

Soon after the university reached this deal, experts on Title IX policy told ThinkProgress that the Choudhry deal is fairly common, because universities tend to identify more with the alleged harasser than the victim. In many cases, faculty members have more resources than the victim, and could drag out a lawsuit against the university after it metes out serious disciplinary consequences.

And too often, serial harassers are allowed to continue their harassment. In March, the Associated Press looked at 112 cases from January 2013 to April 2016 at nine campuses in the University of California system. The investigation found that rumors about the accused faculty circulated for years until universities took any kind of action??and that even after they did so, many faculty members kept their jobs.

The issue of faculty harassment of graduate students is a national one, and universities will have to adjust their policies if they’re going to address it. In 2016, researchers who surveyed 525 graduate students on sexual and gender-based harassment found that 38 percent of female participants and 23.4 percent of male participants self-reported that they had experienced sexual harassment from faculty or staff.

More recent research shows that faculty harassers are often serial harassers and engage in serious forms of harassment such as sexual assault. According to a study released in July, “A Systematic Look at a Serial Problem: Sexual Harassment of Students by University Faculty,” most harassers studied have physically rather than verbally harassed students. Some faculty harassers exhibited “domestic-abuse like behaviors.” Over half of the faculty cases studied — 53 percent — were alleged to have participated in serial harassment.

Graduate students hope to secure protection from harassment as they fight for their labor rights. Graduate students say that union representation and collective bargaining will help them get contracts that cover issues of sexual harassment.

This article was originally published at ThinkProgress on August 21, 2017. Reprinted with permission.

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

New study confirms widespread reports of science’s sexual harassment problem

Tuesday, July 11th, 2017

In January 2016, Rep. Jackie Speier (D-CA) took to the House floor and delivered a blistering speech on a topic not often discussed outside the towers of academia: sexual harassment in the sciences.

“When I was made aware of it, I was astonished and disgusted,” Speier told Wired about the case she presented on the floor, based on a leaked report on harassment at the University of Arizona. But she wasn’t surprised: “It was consistent with what I have seen in science for a long time.”

As Speier notes, the idea that science has a sexual harassment problem is hardly new?—?particularly for female scientists, who’ve been dealing with and fighting against it for decades. But until recently, it didn’t get a lot of attention. Speier’s speech helped open up a dam, as female scientists came forward in droves to share their experiences with sexist discrimination and harassment.

And this week, new survey data confirms what the anecdotes told us: Women, and particularly women of color, working within the astronomical and planetary sciences are vastly more likely than their male colleagues to experience a hostile work environment based on their race or gender.

A series of scandals

Speier her speech began by referencing two high-profile cases that had shaken the world of astronomy and first brought the issue into the spotlight, the first of which centered on world-famous astronomer, tenured professor, and, as it turns out, serial sexual harasser Geoff Marcy.

Marcy had repeatedly violated the school’s sexual harassment policy and engaged in inappropriate behavior with female students, including unwanted massages, kisses, and groping, as a Title IX investigation leaked to Buzzfeed revealed. According to subsequent reports, his behavior dated back to previous academic posts and had gone on for decades with little consequence, despite numerous reports from women.

Despite the extensive documentation and report, Berkeley did not hand down punishment for Marcy. He resigned from his tenured position down after pressure from his colleagues.

Then, a similar story broke at Caltech, where newly-tenured astrophysics professor Christian Ott was suspended for inappropriate behavior toward two female graduate students?—?one of whom he fired after he fell in love with her, upending her research plans and ultimately causing her to leave the university to finish her studies elsewhere.

And on the floor, Speier outed yet another instance of harassment within astronomy: Timothy Frederick Slater, a professor at the University of Wyoming who obtained the post despite a documented history of sexual harassment at his previous job at the University of Arizona.

As the topic moved out of the shadows and into the mainstream, women from all across the sciences came forward with their own stories of gender-based discrimination and harassment.

Reformers, however, still faced a classic problem when it comes to sexual harassment: disbelief. Were these anecdotes just isolated incidents, or particularly high-profile examples of a widespread epidemic?

Now, new survey data published in the Journal of Geophysical Research is helping confirm that it’s the latter?—?and illustrate that when it comes to harassment and hostile workplace behavior, women of color, as a double minority, are the people at the greatest risk.

A culture of sexism

Researchers surveyed 474 astronomers and planetary scientists in an internet survey, asking about their experience with harassment over a period of five years. As they were particularly interested in the experience of women?—?who experience the majority of sexual harassment and gender discrimination in the workplace, and who also form a minority group within the scientific field at issue?—?they specifically targeted recruitment so they would be oversampling women relative to their numbers in the field.

They found that overall, women were more likely than men to experience a hostile work environment, and were far more likely to experience sexism and harassment.

“The results were initially worse than expected, as somebody who’s been working in and around these issues for some time,” study co-author Christina Richey told Inside Higher Ed. “It’s a little disheartening, but at least as we present this information it’s an opportunity for that gut-check moment. It forces conversations to start.”

Seventy-nine percent of women surveyed reported hearing at least some sexist remarks from their peers, and 44 percent reported hearing them from their supervisors. Women were also more likely than men to hear remarks about their physical ability or disability. Seventy-five percent of women reported hearing remarks from others about their mental abilities, as compared to 48 percent of men.

And in nearly every significant area, the researchers found that “women of color experienced the most hostile environment, from the negative remarks observed to their direct experiences of verbal and physical harassment.”

Forty percent of women of color reported feeling unsafe at work because of their gender, and 28 percent reported feeling unsafe because of their race. They also observed the highest frequency of problematic remarks, as compared to white men and men of color and white women, and were the most likely to report harassment based on their race.

White women and women of color experienced verbal harassment related to their gender about equally?—?with 43 percent and 44 percent reporting it, respectively.

Overall, the study paints a picture of endemic hostile experiences predicated by race, gender, and their intersections.

And this culture has an effect: Thirteen percent of women reported skipping at least one class, meeting, fieldwork, or professional event due to feeling unsafe, as compared to 3 percent of men. Twenty-one percent of women of color reported skipping professional events due to feeling unsafe, as did 18 percent of men of color. Only 2 percent of white men reported skipping at least one event due to feeling unsafe.

This result underlines a common theme with workplace sexual harassment: Often, when men in power harass their employees, it’s the women on the receiving end whose careers pay the price.

A discriminatory environment creates a leaky pipeline

This study specifically focused on astronomy and the planetary sciences?—?one area within the sciences where women are particularly scarce, and where some of the highest-profile scandals have occurred.

Reports indicate, however, that the problem stems across disciplines and even across academia. According to a 2015 report, one in three female science professors reported experiencing sexual harassment at some point in their career.

One likely reason sexual harassment in the sciences is prevalent is because of gender imbalances in the field: While women now outnumber men in social and some biosciences, they remain drastically underrepresented in engineering, physics, and computer science.

Academia is also a world where length of career matters. For decades, women weren’t even accepted to technical or scientific degrees. Now, that legacy still lingers in the ranks of those who lead University departments or who built powerful research legacies?—?and therefore are in charge of the course of young careers. That means that more often than not, even as more women are being encouraged to choose STEM careers, those in charge of mentorship, funding, and career opportunities are men.

All of this has a perpetuating effect: Women remain stubbornly underrepresented in the sciences, and part of that is because the pipeline is leaky.

In engineering, for example, women earn only 19 percent of bachelor’s degrees, and then on top of that 40 percent of female degree earners leave the field, citing hostile work cultures, limited advancement opportunities, and unsupportive supervisors.

That’s a problem not just for women, but also for science in general, because it means that fields are missing out on bright minds.

The authors of the study offer several suggestions for remedying the environment for women and women of color in science?—?including adopting codes of conduct protecting vulnerable populations, providing diversity and cultural awareness training, and helping women and women of color to build communities of peers.

They also recommend that when abuse is reported, that the perpetrators be sanctioned swiftly, justly, and consistently, “as this is the only way to signal consequences to the target and the broader community.”

This article was originally published at ThinkProgress on July 11, 2017. Reprinted with permission.

About the Author: Laurel Raymond is a reporter for ThinkProgress. Previously, she worked for Sen. Patrick Leahy (D-VT) and served as a Fulbright scholar at Gaziantep University in southeast Turkey. She holds a B.A. in English and a B.S. in brain and cognitive sciences from the University of Rochester, and is originally from Richmond, Vermont.

Trump reversal of Obama-era labor rule is great news for corporations

Friday, June 23rd, 2017

A transgender woman is suing McDonald’s and the owner of the franchised restaurant she worked for after allegedly experiencing sexual harassment and discrimination.

La’Ray Reed said a coworker asked if she were a “boy or girl,” “top or bottom,” or what her “role” was “in the bedroom.” She said she was groped and spied on while using the public toilet.

But for Reed to hold McDonald’s responsible for her alleged mistreatment, her lawyers have to prove that McDonald’s should be held responsible as a joint employer—not just the owners of the franchised restaurant. There is a question of whether the Labor Department’s recent decision to rescind the standard for determining who is a joint employer will hinder her ability to seek justice. The Obama administration’s standard went beyond simply looking at who sets wages and hires people, and considered a worker’s “economic dependency” on the business.

McDonald’s has resisted this legal responsibility for many years, and says it does not have control over things like pay and working conditions at franchised restaurants. In 2016, McDonald’s settled a wage-theft class action through a $3.75 million payment that allowed it to dodge responsibility. McDonald’s released a statement that said it “reconfirms that it is not the employer of or responsible for employees of its independent franchisees.”

Industry groups have been pushing against efforts to call businesses like McDonald’s joint employers for many years now. In 2015, Matt Haller, a lobbyist at the International Franchise Association called a 2015 National Labor Relations Board ruling on whether a recycling company could be called a joint employer, “a knife-to-the throat issue for the franchise model.” He told the Washington Post, “You’d be hard pressed to find a business that shouldn’t be concerned about the impact of this joint employer standard.” Haller said IFA was “pleased” at the department’s decision to rescind guidance this month.

But there is certainly hope for La’Ray Reed, and other workers like her who are experiencing discrimination or issues such as wage theft at work. Since the joint employer guidance does not have the full force of law, it is not as important to these cases as existing tests for determining if an employer relationship exists. Under the economic realities test, applied under Title VII of the Civil Rights Act of 1964 and the Fair Labor Standards Act, among other laws, a relationship exists if someone is economically dependent on that business. Paul Secunda, professor of law at Marquette University, who teaches on employment discrimination law, said this test will play a much bigger role in determining whether an employee can hold McDonald’s responsible for discrimination.

“Just the Trump administration withdrawing this guidance does not mean in any way that these claims are doomed to failure or are otherwise are not plausible,” Secunda said. “Because what matters the most with employment law is focusing on employment discrimination under Title VII and what other state laws apply there.”

‘This control standard is the standard that has been in place since the 1950s and ‘60s, and so it doesn’t make sense to have different standards under different laws. It only makes sense to hold liable those who control what happens in the workplace,” Secunda added.

Representatives of Fight for $15, a group of fast food workers, teachers, and adjunct professors advocating for better pay backed by the Service Employees International Union, said McDonald’s has failed to enforce its own policies.

“The growing number of allegations suggests a failure by McDonald’s to enforce the zero-tolerance policy against sexual harassment outlined in its Operations and Training and Policies for Franchisees manuals,” the labor group told BuzzFeed.

“There are terms and conditions that are set by the national parent McDonald’s,” Secunda said. “It has a policy on sexual harassment and equal opportunity that all its franchisees have to meet: that it will not tolerate sexual harassment whether based on transgender status or otherwise in the workplace. [The argument is] that McDonald’s parent company exercises meaningful control—that is being free from sexual harassment and demeaning conduct in the workplace.”

None of this means that any parent corporation is responsible for any franchisees’ lability, Secunda said, since every case must be decided on its facts, but where employers do exercise meaningful control over employees, there should be a possibility that they will be held responsible.

The decision to rescind this joint-employer guidance will by no means kill any possibility of holding a corporation, such as McDonald’s, responsible, and a judge would be more likely to consider the rule of law first, Secunda said, but the joint employer guidance would still be a helpful resource for the defendant to have in its arsenal.

“If I were a conservative jurist who wanted it to come out on the corporate conservative side of the world, I see that they could use this. ‘You know they’re the expert agency, so they can’t be wrong,’” Secunda said. “But I just think that would be disingenuous, because the agency has obviously changed its position based on the politics on the administration. And this should be an answer that has nothing to do with politics. It should be based on rule of law.”

This blog was originally published at ThinkProgress on June 22, 2017. Reprinted with permission. 

About the Author: Casey Quinlan is a journalist covering education, investments, politics, crime, and LGBT issues.

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