The Roger Ailes harassment scandal was never just about Roger Ailes. We knew that from the beginning: Gretchen Carlson, the woman whose sexual harassment lawsuit helped topple the Fox News chief (and unleashed a flood of similar harassment and assault allegations) stated that she’d only come into Ailes’ line of sight because she was pursuing remedy for a different instance of workplace discrimination.
The circumstances of Carlson’s suit are indicative of a wider problem. In her suit, Carlson alleges that her Fox & Friends co-host, Steve Doocy, made her life hell by “mocking her during commercial breaks, shunning her off air, refusing to engage with her on air, belittling her contributions to the show, and generally attempting to put her in her place by refusing to accept and treat her as an intelligent and insightful female journalist.” When she reported his behavior, Ailes allegedly called Carlson a “man hater” and told her to “get along with the boys,” eventually demanding sex in return for his intervention.
With all that in mind, can it really be surprising that yet another woman has now come forward to allege sexual harassment—or that the woman in question, Andrea Tantaros, describes Fox News itself as “a sex-fueled, Playboy Mansion-like cult, steeped in intimidation, indecency, and misogyny?”
The specific harassers named are new—Bill O’Reilly, correspondent John Roberts and former Sen. Scott Brown are all named—and so are some details. (Tantaros alleges that after she shot Ailes down the company’s media relations department began arranging bad press for her, even setting up fake social media accounts to attack her online presence with nasty comments.) But the overarching allegation that Ailes “(did) not act alone”—that other men at the network benefited from a system designed to enable sexual harassment and that the system found a way to cover for the accused men and make their female victims disappear—was familiar from Carlson’s suit. The players may change, but the song remains the same, and anyone who’s studied how sexual harassment works has no trouble recognizing this particular tune.
Harassment isn’t an individual problem; it’s a problem inflicted by communities, either because the members participate in the violence or because they’ve learned to stay quiet as a means of self-defense. (Johnny Silvercloud/ Flickr)
Fox News has declined to comment on Tantaros’ case, citing pending litigation. The network’s parent company, 21st Century Fox, released a statement saying it was conducting an internal review of conduct by Ailes and Doocy. Ailes has strenuously denied the accusations against him, as has Brown.
There’s been a lot of ink spilled on Ailes’ personal repugnance over the past few months, but sexual harassment almost never comes down to one corrupt executive. For that matter, the harm done to victims usually doesn’t start with the big, obvious assaults or demands. Sexual harassment is built on minor violations accrued over time—a put-down here, an off-color hint there—until the boundaries of normal workplace behavior have been eroded to the point of collapse, and the major crimes (assault, stalking, quid pro quo demands) can be committed without fear of violating norms.
Though some harassers may be more vicious and more predatory than others, the process of disintegrating those boundaries and establishing an unsafe environment is usually crowdsourced throughout an organization. If harassers don’t think they can get away with something, they won’t do it. Creating an environment in which they can get away with it—and in which they can get away with it precisely because everyone else is already doing it—is part of the process.
To think of sexual harassment as a problem of one bad man is to fall into the fallacy of seeing sexual assault as a crime of passion. Sexual harassment is much more likely to result in someone losing her job than in sex. Someone is unlikely to fall in love or lust because she’s been forced to undress in front of colleagues (something Tantaros alleges Ailes did to her) but she’s very likely to have her job performance compromised by psychological damage or distraction, or gain a reputation as difficult because she can’t safely or comfortably work with certain colleagues, or simply quit because she can’t bear to come into work.
Sexual harassers don’t want sex. They want to push women out of the labor force, which they can easily do by making work more dangerous for women than it is for men.
Though it’s tempting to see the Fox News situation as somehow due to the uniquely horrible politics or personalities of the people involved—and they are, indeed, horrible—workplace environments like that are common enough that up to 1 in 3 women reports experiencing workplace harassment in her lifetime. And while we often envision harassment as coming from a predatory boss, in practice it’s largely a horizontal crime, committed between people whose only real power differential is their gender.
In the above-cited survey, 75 percent of women’s harassment came from male co-workers, and only 38 percent came from male managers. (Female co-workers were also represented on the list—but comprised only 10 percent of perpetrators.) What causes workplace harassment isn’t the politics of the workplace, or even individual power dynamics. The underlying cause is how the organization sees and enforces gender.
One of the defining features of sexual harassment, and one of the main reasons few cases are ever formally reported to higher-ups, is that victims are often penalized (as Tantaros says she was) or faced with an escalation in the harassment (as Carlson says she was) if they speak up. By the time a harassment case gets bad enough that a woman asks for help, the systemic corruption has already taken hold and the deck is likely to be stacked against her.
Yet, as dangerous as speech can be, silence is worse. Consider the many silences that supported Ailes: The women who were kept out of jobs because they refused Ailes’ advances (thus narrowing the field to women who were less likely to report him), the women who were removed or told to “get along with the boys” or “let it go” if they complained about lesser instances of sexism (thus sending the clear message that reporting larger instances would not be welcome), the men who, in the absence of any consequences, learned to behave as if there were no rules and joined in with a grope here or a proposition there, or simply a daily habit of being nasty and demeaning to their female co-workers.
Each minor infraction gives other men the message that they can get away with similar or worse infractions. Each penalty dealt to a female co-worker teaches other women not to speak up or support their fellow victims. Before long, the entire organization is a minefield.
This is what we miss when we try to frame sexual harassment as a matter of a certain perpetrator, or a certain act or even a certain organization. Monsters breed in silence and shadow, and though we may be revolted by the ones we do occasionally bring to light, punishing or reviling them does nothing about the wider problem—which is our complicity, our participation in cultures that exalt men and feed off female humiliation.
Harassment isn’t an individual problem; it’s a problem inflicted by communities, either because the members participate in the violence or because they’ve learned to stay quiet as a means of self-defense. So, while it’s fun to point at Ailes and Fox News, we should also keep in mind that what we’re seeing is not unique, and maybe not even that special. We should look around at our own communities, and ask where the shadows have fallen and who might be getting hurt, just out of sight.
This article was originally posted at InTheseTimes.com on August 26, 2016. Reprinted with permission.
Sady Doyle is an In These Times Staff Writer. She also contributes regularly to Rookie Magazine, and was the founder of the blog Tiger Beatdown. She’s the winner of the first Women’s Media Center Social Media Award. She’s interested in women in pop culture, women creating pop culture, reproductive rights, and women’s relationship to the Internet and the Left. You can follow her on Twitter at @sadydoyle, or e-mail her at email@example.com.
Some Missouri state lawmakers have a controversial idea for preventing future sexual harassment cases in the legislature: Imposing a new “modest” dress code for teenage interns.
State representatives are trying to figure out how to respond to several incidences of harassment among their ranks. In July, State Sen. Paul LeVota (D) resigned amid allegations that he sexually harassed two interns. And in May, House Speaker John Diehl (R) — perhaps the most powerful lawmaker in the state — stepped down after the Kansas City Star reported that he exchanged sexually explicit text messages with a 19-year-old intern.
In response, lawmakers are attempting to make changes to the current internship program to provide more oversight. And at least two state legislators — Reps. Bill Kidd (R) and Nick King (R) — have thrown their weight behind an intern dress code.
“We need a good, modest, conservative dress code for both the males and females,” King wrote in an email to the rest of his colleagues after Kidd made the initial suggestion. “Removing one more distraction will help everyone keep their focus on legislative matters.”
The idea was met with derision from Kidd and King’s Democratic colleagues, as well as roundly mocked on Twitter. Critics pointed out that changing interns’ dress codes won’t get at the fundamental issue of lawmakers potentially harassing their staff or colleagues. Plus, they argued there isn’t anything inherently distracting about interns’ bodies that should prevent their bosses from being able to go about doing their jobs.
“If my plaid jacket or the sight of a woman’s bare knee distracts you from your legislative duties, I would look for other work,” Rep. Jeremy LaFaver (D) responded.
Missouri’s legislature isn’t the first to wade into this fight. Last year, Montana lawmakers madenational headlines for approving new dress code guidelines that stipulated “leggings are not considered dress pants” and women should be “sensitive to skirt lengths and necklines.” Female politicians in the state objected, saying the new rules created “this ability to scrutinize women” and were “totally sexist and bizarre and unnecessary.”
The argument over gender-based dress codes has also spread to middle schools and high schools across the country, as female students push back against the assumption that the way they dressmay distract their male peers from concentrating in class. Critics say this approach to dress codesreinforces the idea that women’s bodies are inherently tempting to men and that women are responsible for covering themselves up. The implicit message, then, is that it’s women’s job to change their behavior to prevent men from committing sexual crimes.
“Maybe voters should insist on a special requirement for men applying to be a Missouri lawmaker,” Kansas City Star columnist Yael Abouhalkah wrote on Tuesday. “It could rule out any men who consider themselves to be lascivious, salacious and simply indecent.”
This blog originally appeared on ThinkProgress.org on August 18, 2015. Reprinted with permission
Tara Culp-Ressler is a Senior Editor at ThinkProgress. She was previously a Health Editor, Health Reporter, and Editorial Assistant for the site. Before joining the ThinkProgress team, Tara worked at several progressive religious nonprofits, including Faith in Public Life, the National Religious Campaign Against Torture, and Interfaith Voices. Tara graduated from American University and is originally from Lancaster County, Pennsylvania.
The following contains spoilers from Sunday night’s episode of Mad Men. The big reveal in Sunday night’s episode of Mad Men was that Sterling Cooper, a company where racist jokes are frequently thrown about and where the company’s only female partner literally earned that partnership because she was prostituted out to a client, is actually a progressive employer by the standards of its era. The episode is the first after Sterling Cooper is absorbed into the advertising behemoth McCann Erickson, and it begins with an African American secretary telling her casually racist boss that she won’t be going over to McCann with him because “advertising is not a very comfortable place for everyone.” Yet the highlight of the episode is Joan’s sexual harassment at the hands of a senior member of her new firm, and her eventual decision to take a buyout worth only half of her partnership stake in the now defunct Sterling Cooper rather than take McCann to court. (Joan, of course, is the partner who agreed to an indecent proposal from a client). In response to Joan’s fictional experience with sex discrimination, the real-life American Civil Liberties Union (ACLU) urged Joan to contact them in a tweet announcing that “sexual harassment has no place at work!” Yet the sad truth is that, had Joan actually pursued a lawsuit against McCann in 1970, the year when the final half-season of Mad Men takes place, she would have almost certainly lost.
Sunday’s episode focuses on Joan’s increasingly terrible interactions with three male colleagues. Early in the episode, Joan is matched with Dennis, an account executive who botches a call with a client and then dismisses Joan’s feedback (“Who told you you got to get pissed off!”) when she calls him out on his incompetence. Fearful that Dennis will destroy the client relationships that are her only capital within the firm, she approaches Ferg, a more senior colleague, seeking help.
Though Ferg initially presents himself as a lifesaver — he takes Dennis off Joan’s business and promises that she will report directly to him – he soon makes it clear that his real interest in Joan is sexual. Ferg suggests that the two of them travel together to Atlanta to meet the client Dennis upset and tell her that he’s “not expecting anything more than a good time.” Once Joan goes over Ferg’s head, she’s informed that Ferg is a high-status player at McCann and that she needs to fall in line. At first, Joan threatens to bring in the Equal Employment Opportunity Commission (EEOC), Betty Friedan and the ACLU to press her sexual harassment claim, but she ultimately takes what amounts to a settlement offer consisting of only half of what McCann owes her for her stake in Sterling Cooper.
Had Joan sued McCann, she would have relied on a legal theory that wasn’t even in its infancy in 1970. The ban on sexual harassment in the workplace flows from Title VII of the Civil Rights Act of 1964, which forbids employment discrimination because of “race, color, religion, sex, or national origin.” Six years after the law’s passage, however, the courts had only barely begun to grapple with how sex discrimination actually manifests in the workplace, and the term “sexual harassment” didn’t even exist yet.
Had Joan filed suit against McCann, her lawsuit would have preceded all of these legal developments. For that reason, despite her threat to get the ACLU involved, it is unlikely that top-notch civil rights lawyers would have wanted to use her case as the vehicle to try to blaze a new legal trail. When lawyers bring a “test case” seeking to create new law, they typically choose their plaintiff or plaintiffs very carefully, selecting someone with an especially compelling case who is likely to win the sympathy of judges or justices. Bad facts make bad law, and a lawyer who offers a novel legal theory on behalf of a client who experienced subtle or uncertain harassment is likely to not only lose their case, they are likely to create a bad precedent that will harm future plaintiffs.
Here, for example, are the allegations in Vinson, the first Supreme Court case to recognize that sexual harassment suits are viable:
Respondent testified that during her probationary period as a teller-trainee, Taylor treated her in a fatherly way and made no sexual advances. Shortly thereafter, however, he invited her out to dinner and, during the course of the meal, suggested that they go to a motel to have sexual relations. At first she refused, but out of what she described as fear of losing her job she eventually agreed. According to respondent, Taylor thereafter made repeated demands upon her for sexual favors, usually at the branch, both during and after business hours; she estimated that over the next several years she had intercourse with him some 40 or 50 times. In addition, respondent testified that Taylor fondled her in front of other employees, followed her into the women’s restroom when she went there alone, exposed himself to her, and even forcibly raped her on several occasions.
Though Vinson recognized that this egregious level of harassment-becoming-assault violates the law, it set a very high bar for future sexual harassment plaintiffs. “For sexual harassment to be actionable,” Justice William Rehnquist wrote for the Court, “it must be sufficiently severe or pervasive ‘to alter the conditions of [the victim’s] employment and create an abusive working environment.’” The Court also cited favorably to a racial harassment case establishing that the “‘mere utterance of an ethnic or racial epithet which engenders offensive feelings in an employee’ would not affect the conditions of employment to sufficiently significant degree to violate Title VII.”
Ferg’s advances, though clearly inappropriate, did not even approach the egregious level of discrimination that allegedly occurred in Vinson. He began his conversation with Joan by excusing Dennis’s sexism, but ultimately promised to give Joan the professional “respect you desire.” And he propositioned Joan more through innuendo than through the direct demands that allegedly occurred in Vinson. There’s little doubt what kind of “good time” Ferg was looking for, but it would be difficult for Joan to prove that this one incident constituted the kind of “severe or pervasive” harassment Vinson demands.
That’s not to dismiss the reality of Ferg’s harassment of Joan, or to suggest that the working conditions that she faced were anything less than disgusting. But sexual harassment claims are notoriously difficult to win, and even our modern, more developed sexual harassment law is inadequate to combat the kind of harassment women like Joan continue to face in the workplace.
Had Joan filed suit against McCann, she would have been a true pioneer, bringing a novel legal case years before the term “sexual harassment” even existed. She also would have almost certainly lost her case in a legal system that was not the least bit prepared to hear it.
This blog was originally posted on Thinkprogress.org on May 4, 2015. Reprinted with permission.
About the Author. The author’s name is Ian Millhiser. Ian Millhiser is a Senior Fellow at the Center for American Progress Action Fund and the Editor of ThinkProgress Justice. He received a B.A. in Philosophy from Kenyon College and a J.D., magna cum laude, from Duke University. Ian clerked for Judge Eric L. Clay of the United States Court of Appeals for the Sixth Circuit, and has worked as an attorney with the National Senior Citizens Law Center’s Federal Rights Project, as Assistant Director for Communications with the American Constitution Society, and as a Teach For America teacher in the Mississippi Delta. His writings have appeared in a diversity of legal and mainstream publications, including the New York Times, The Los Angeles Times, U.S. News and World Report, Slate, the Guardian, the American Prospect, the Yale Law and Policy Review and the Duke Law Journal. Ian’s first book is Injustices: The Supreme Court’s History of Comforting the Comfortable and Afflicting the Afflicted.
Yahoo CEO Marissa Mayer tries to stay far away from the gender-based stereotypes plaguing the tech industry.
“I never play the gender card…The moment you play into that, it’s an issue,” Mayer told Medium for an article centered on Yahoo’s two-decade legacy and Mayer’s hand in turning the company around. “In technology we live at a rare, fast-moving pace. There are probably industries where gender is more of an issue, but our industry is not one where I think that’s relevant.”
While gender is certainly an issue when it comes to workplace diversity, it’s even more pronounced when climbing through the ranks. Women only make up 11 percent of all executive positions in Silicon Valley companies, and often deal with hostile work environments, where sexual harassment and innuendo are rampant.
She is one of 24 women CEOs at S&P 500 companies, and just one of four female CEOs in the tech industry’s S&P 500 companies — Xerox’s Ursula Burns, Hewlett Packard’s Meg Whitman, Oracle’s Safra Catz, and Virginia Rometty at IBM, according to a report from Catalyst, a business research and strategy firm.
Like other tech companies, including Google and Twitter, looking to diversify and shed the “brogrammer” stereotype, Yahoo employees are overwhelmingly male and white. Women make up 37 percent of of all Yahoo employees, according to the company’s diversity report released last year. Only 15 percent work in tech worldwide, while another 23 percent hold leadership positions.
Those figures are echoed throughout the industry and have led companies to make deliberate efforts to boost racial and gender diversity, weed out harassment and discrimination. For example, Google launched an initiative “Made With Code” to get young girls interested in coding, alongside independent efforts that ramp up outreach efforts through programs like Black Girls Code and Code2040 to make the industry less homogenous.
This article originally appeared on thinkprogress.org on March 2, 2015. Reprinted with permission.
About the author:Lauren C. Williams is the tech reporter for ThinkProgress with an affinity for consumer privacy, cybersecurity, tech culture and the intersection of civil liberties and tech policy. Before joining the ThinkProgress team, she wrote about health care policy and regulation for B2B publications, and had a brief stint at The Seattle Times. Lauren is a native Washingtonian and holds a master’s in journalism from the University of Maryland and a bachelor’s of science in dietetics from the University of Delaware.
Four female workers at two Ford Motor plants, the Chicago Ford Assembly Plant and the Chicago Stamping Plant—have filed sexual harassment lawsuits in federal court, claiming they were groped, touched inappropriately and harassed.
The plaintiffs described an overwhelmingly hostile work environment for women, particularly women of color.
“It’s not like work, it’s more like a meat market,” Charmella LeViege, one of the four plaintiffs, said in a press conference.
As reported by Crain’s Chicago‘s Meribah Knight, another plaintiff, Christie Van, claimed that after complaining about harassment to the company’s harassment hotline,
while walking to her car she was pushed to the ground and stomped on and told she was a “black snitch bitch” and that she’d better not return to her job at Ford. The lawsuit stated Ms. Van’s assailant threatened that he knew where she lived and would kill her if she came back. …
[Maria] Price, a single mother, said she was “groped, felt on and violated in every way,” by managers, co-workers and supervisors while on the job. “It’s come from every angle,” she said.
The four plaintiffs in the suit, Leviege, Van, Price and Helen Allen, are not the only women claiming harassment at work. The case is a class action suit and Hunt claims that there are over a hundred complaints filed with the U.S. Equal Employment Opportunity Commission.
The women’s attorney, Keith Hunt, has brought suits against Ford before, in 1995 and 1997. When the second suit was settled in 2000, it contained provisions requiring Ford to introduce new sexual harassment training and to have independent monitors at the plant to oversee the enforcement of the agreement. Ford was expecting to pay over $10 million for that new training.
In response to this latest lawsuit, Ford said in a statement, “Where allegations of misconduct are raised, it is our policy to investigate them thoroughly and take all appropriate steps in response.”
The Ford Code of Conduct says that employees should “report, and encourage others to report, incidents of harassment or retaliation. Report any incidents to appropriate Human Resources personnel, or use the Company’s reporting system.” It also bars retaliation for those who report.
How Ford investigated those complaints are part of the lawsuit. According to the Chicago Tribune’s Alejandra Cancino:
[Helen] Allen, a maintenance worker, said the location of the plant’s labor relations office, in sight of co-workers, makes it difficult to file complaints without being identified. Once she said she was called into the office after calling the harassment line. Then, a few minutes after she walked out, her supervisor was called in. As a result, workers immediately knew she had complained about her supervisor, she said.
“When you complain, you become the problem,” Allen said.
Allen went on to describe being pushed down, stomped on, and called a “snitch” as a result. She reported the incident, but the lawsuit claims Ford did not investigate. The reported incidents came from coworkers, supervisors, and managers.
The lawsuit is seeking damages, lost earnings, back pay, and independent monitors for five years. Workers at the plants are represented by the UAW.
This blog originally appear on IntheseTimes.com on Wednesday November 5, 2014. Reprinted with permission. http://inthesetimes.com/working/entry/17321/over_a_hundred_female_auto_workers_claim_assault_sexual_harassment_at_ford.
About the Author: Kevin Solari is an intern at In These Times.
A “whore,” “gold-digger,” “desperate loser,” and “just a bad girl.” These are only a handful of the sexist comments that Whitney Wolfe, co-founder of the mobile dating app Tinder, alleges she was subjected to by chief marketing officer Justin Mateen. Last month, Wolfe brought suit against Tinder for sex discrimination and harassment. Wolfe’s legal complaint details how Mateen sent outrageously inappropriate text messages to her and threatened her job, and how Tinder CEO Sean Rad ignored her when she complained about Mateen’s abuse. Wolfe claims that Mateen and Rad took away her co-founder designation because having a 24-year-old “girl” as a co-founder “makes the company look like a joke” and being a female co-founder was “sluty.”
The conduct, which Wolfe’s complaint characterizes as “the worst of the misogynist, alpha-male stereotype too often associated with technology startups,” unfortunately remains the norm, and Wolfe is not alone in her experience. Last year, tech consultant Adria Richards was fired after she tweeted and blogged about offensive sexual jokes made by two men at a tech conference. After one of the men was fired from his job, Richards experienced horrendous Internet backlash, including rape and death threats. She was then fired by Sendgrid after an anonymous group hacked into the company’s system in some twisted attempt at vigilante “justice.”
In 2012, junior partner Ellen Pao filed a sexual harassment suits against a venture capital firm, alleging retaliation after refusing another partner’s sexual advances. And back in 2010, Anita Sarkeesian was the target of online harassment after she launched a Kickstarter campaign to fund a video series to explore female stereotypes in the gaming industry. An online video game was even released in which users could “beat up” Sarkeesian. These are just some of the many examples of demeaning attacks against women in the testosterone-driven tech world.
There are many state and federal laws that prohibit the kinds of workplace harassment that these women experience, including the federal Civil Rights Act of 1964, the California Fair Employment and Housing Act, the Bane and Ralph Act, and the California Constitution. These laws provide strong protections against gender harassment in employment and other contexts. So why do these attacks on women continue to happen in an industry that is supposedly progressive and populated with fairly educated adults?
It doesn’t help that tech companies are also notorious for their lack of diversity. This year, Google released its first diversity report which revealed that 70 percent of its workforce was male, and 61 percent was white. The workforce was also predominantly male and white at Facebook, Yahoo, Twitter, and LinkedIn. Another report this year shows that the percentage of women occupying CIO positions at companies has remained stagnant at 14 percent for the last decade. These numbers confirm what the stories reflect — that this industry truly is “a man’s world.” And this needs to change.
Some may dismiss Wolfe’s lawsuit and similar complaints as coming from women who are hypersensitive. Indeed, Wolfe claims that when she complained about Mateen’s harassment, she was dismissed as being “annoying” and “dramatic.” While some degree of social adaptation may be expected when joining any company, particularly freewheeling start-ups, there are limits that must be respected. Those limits are crossed when the pressure to conform to a white, male norm is so great that women who challenge this norm are further harassed or their voices suppressed.
Unfortunately, this marginalization of women who challenge the macho culture even comes from other women, who blame the “feminists” for making it harder for women to advance in tech. This also needs to change. Women who speak out about sexism and misogyny in the tech industry deserve the support of their colleagues, and men who turn to vitriol and juvenile behavior to intimidate deserve censure.
But change will not be achieved without help from sources outside the industry. Attorneys and employee advocates must continue to bring attention to the rampant sexism that is “business as usual” in the tech industry. We need to encourage tech companies of all stages and sizes to comply with employment laws, adopt proper HR practices, promote diversity and inclusion, and use objective standards to measure performance. If the tech industry is serious about encouraging young girls to become coders and developers, it also needs to place women in conspicuous leadership roles and pay real attention to change the “guy culture.”
The tech world doesn’t have to be a man’s world, and it shouldn’t be.
This blog originally appeared in CELA Voice on July 25, 2014. Reprinted with permission. http://celavoice.org/author/lisa-mak/.
About the Author: The authors name is Lisa Mak. Lisa Mak is an associate attorney at Lawless & Lawless in San Francisco, exclusively representing plaintiffs in employment matters. Her litigation work focuses on cases involving discrimination, harassment, whistleblower retaliation, medical leave, and labor violations. She is an active member of the CELA Diversity Committee, Co-Chair of the Asian American Bar Association’s Community Services Committee, a volunteer and supervising attorney at the Asian Law Caucus Workers’ Rights Clinic, and a Young Professionals Board member of Jumpstart Northern California working to promote early childhood education. She is a graduate of UC Hastings School of Law and UC San Diego.
A New York federal district court has ruled that a former unpaid intern for Phoenix Satellite Television US, Inc., cannot bring a sexual harassment claim under the New York City Human Rights Law, because the lack of compensation renders her unable to meet the requirement of employee status under the statute.
Judge P. Kevin Castel issued the ruling in Lihuan Wang v. Phoenix Satellite Television US, Inc., on Thursday. The alleged harassment included ongoing social and sexual overtures and physical touching by a bureau chief who supervised the plaintiff’s work.
As reported by Jay-Anne B. Casuga for the BNA’s Daily Labor Report (subscription required):
A female former unpaid broadcasting intern cannot bring a sexual harassment claim under the New York City Human Rights Law because she is not an “employee” within the meaning of the law, a federal judge in New York held Oct. 3, addressing an issue of first impression . . . .
. . . Relying on federal and New York case law, the district court said unpaid interns do not qualify as employees under Title VII of the 1964 Civil Rights Act or the New York State Human Rights Law because of the “absence of remuneration,” which is an “essential condition to the existence of an employer-employee relationship.”
O’Connor v. Davis (1997)
The district court cited favorably to the leading decision on the legal question of whether unpaid interns have standing to sue under employment discrimination laws, O’Connor v. Davis, a 1997 Second Circuit Court of Appeals decision involving a student social work intern who alleged that she was sexually harassed by a staff psychiatrist in the course of an internship with the Rockland Psychiatric Center in New York.
The plaintiff filed suit, claiming, in part, that she was subjected to sexual harassment in violation of Title VII of the federal Civil Rights Act. The Second Circuit Court of Appeals held that O’Connor was not an “employee” within the statutory meaning of Title VII, reasoning that compensation “is an essential condition to the existence of an employer-employee relationship.” The absence of any kind of salary, wages, health insurance, vacation and sick pay, or any promise of such direct or indirect remuneration from Rockland was fatal to O’Connor’s claim of employee status, and consequently, to the Title VII count of her complaint.
Federal policies echo court rulings. The laws enforced by the U.S. Equal Employment Opportunity Commission, including the Civil Rights Act, don’t cover interns unless they receive “significant remuneration,” according to commission spokesperson Joseph Olivares.
“At least with respect to the federal law that we enforce, an unpaid intern would not be legally protected by our laws prohibiting sexual harassment,” Olivares said in an email to ProPublica.
It’s unclear how many interns are sexually harassed at work. The commission doesn’t keep those statistics, according to Olivares.
October 7 additional comments: Because I wanted to post news of this case promptly, I didn’t spend a lot of time parsing out the legal and policy implications. But I’d like to add a few words now.
The court’s holding in this case raises the related issue of whether or not unpaid internships violate federal and state minimum wage laws, a topic that I’ve addressed frequently on this blog, such as this report on the June 2013 Glatt v. Fox Searchlight Pictures decision in which a federal district court held that unpaid interns were entitled to back pay.In instances where an unpaid intern should’ve been paid under the law, the employer benefits two-fold by claiming the lack of pay renders an intern unable to bring a discrimination or sexual harassment claim, no matter how bad the underlying alleged behavior. By not paying an intern in violation of the law, the employer also may escape liability for discrimination or sexual harassment. How’s that for a bad result?!
I soon will be posting a draft of a new law review article that discusses the many recent legal, policy, and advocacy developments concerning the internship economy. It will serve as an update and sequel to my 2002 article, “The Employment Law Rights of Student Interns” (Connecticut Law Review), that discusses the above-mentioned O’Connor v. Davis decision in some detail.
For reasons I explain in my forthcoming article, I believe that the question of covering interns under employment discrimination laws should be dealt with separately from the issues of compensation under minimum wage laws.
This article was originally printed on Minding the Workplace on October 5, 2013. Reprinted with permission.
About the Author: David Yamada is a tenured Professor of Law and Director of the New Workplace Institute at Suffolk University Law School in Boston. He is an internationally recognized authority on the legal aspects of workplace bullying, and he is author of model anti-bullying legislation — dubbed the Healthy Workplace Bill — that has become the template for law reform efforts across the country. In addition to teaching at Suffolk, he holds numerous leadership positions in non-profit and policy advocacy organizations.
School’s out for summer! Or it will be soon, and many teens will start summer jobs or even their very first real job. Yet schools do little, if anything, to prepare teens for the realities of the workplace. I’m always shocked when I encounter teens whose parents drag them to me after they suffer workplace abuse with no idea they have any rights at all.
So, if you’re a teen entering the workplace or thinking of applying for a job, read this. If you’re a parent, friend or relative of a teen who is entering the workforce, please print this and show it to them.Here are 13 things teens need to know about workplace rights that their school probably didn’t teach them:
1. Minimum Wage: Federal minimum wage is $7.25 per hour. However, there is something called the youth minimum wage, which means that for the first 90 calendar days of any new job you can be paid as little as $4.25 per hour if you are under 20. State minimum wages may be higher. Here in Florida, the minimum wage is $7.79. Tipped employees may be paid a minimum wage of $2.13/hour as long as their wages including tips equal at least the higher of the state and federal minimum wage. State minimum wages for tipped employees vary. In Florida, it’s $4.77/hour. More details about wages can be found here.
2. Hours: If you are under 16, under Federal law your work hours are limited. You can’t work during school hours at all, and you can’t work more than 3 hours on a school day, including Friday; more than 18 hours a week when school is in session; more than 8 hours a day when school is not in session; more than 40 hours a week when school is not in session; and before 7 a.m. or after 7 p.m. on any day, except from June 1st through Labor Day, when you can work until 9 p.m. Federal law doesn’t limit work hours for teens 16 or older, but yourstate laws may. For instance, Florida law says if you’re under 18 you can’t work during school hours (with exceptions), and that if you’re 16 or 17 you may only work up to 30 hours per week, not before 6:30 a.m. or later than 11 p.m. and for no more than 8 hours a day when school is scheduled the following day, and for no more than 6 consecutive days.
3. Breaks: Federal law doesn’t require any work breaks. However, many states require work breaks, especially for workers under 18. In Florida, workers under 18 are not allowed to work more than 4 consecutive hours without a 30 minute uninterrupted work break. For breaks of more than 20 minutes, employers don’t have to pay. Breaks 20 minutes and under are hours worked that need to be paid.
4. Sexual Harassment: If your boss, coworker, customer, vendor or potential boss is harassing you because of your gender or gender identity, that’s sexual harassment, and it’s illegal. This includes unwanted sexual advances, requests for sexual favors, offensive comments about men or women in general, off-color jokes, touching, and other harassment that is either so severe or so frequent that it alters the terms and conditions of your employment. A single offhand comment may not be sexual harassment, but a single incident that is severe could be. As a minor, you have added protection. Any adult sexually harassing you is probably committing a crime, and could be a sexual predator. It is really important that you read the company’s sexual harassment policy when you start working and write down where you are supposed to report it if it occurs. You don’t have to be afraid, and you should not let yourself become a victim. People you can and probably should report sexual harassment to are your Human Resources department at work and your parents. If you’ve been touched, then you may want to contact the police. If you see someone else being sexually harassed, you should report it. Harassers will keep doing it, and their behavior will get worse, unless an adult stops them.
5. Contracts: In most states, if you’re under 18 you can’t be bound by a contract, including an employment contract. You (or your parents) can void a contract you’ve signed while underage. However, once you turn 18, you probably can’t void it anymore. Employment contracts might have provisions saying you can’t work for a competitor for a year or two, waiving your right to a jury trial, confidentiality obligations, and other important clauses. If you are asked to sign a contract, always read it and keep a copy once you’ve signed. If you don’t understand it, talk to your parents or an employment lawyer in your state about it.
6. Internships: While many teens take unpaid internships for the summer, most employers get internships wrong. If your internship is not a real learning experience for you, then you probably have to be paid for the work you do. An internship is supposed to be training similar to that you would receive in a vocational school. Filing, stuffing envelopes, and answering phones should normally be paid. Internship assignments should build on each other so you develop more skills, similar to the way each chapter of a textbook builds on the other. You should be getting training that benefits you, and you should be getting more benefit than the company. If they can make money off what you’re doing, or if you’re saving them from having to pay another employee, you probably have to be paid.
7. At-will: If you live anywhere but Montana, your employment is probably at-will, meaning your employer can fire you for any reason or no reason at all (with some exceptions). They can fire you because they’re in a bad mood, because they didn’t like your shirt, or because you lipped off to them like you lip off to your parents. Exceptions that would make a firing illegal include firing due to discrimination, making a worker’s comp claim, and blowing the whistle on illegal activity of the company. If your boss tells you to do something that isn’t illegal (or sexual harassment), then do it. No eye-rolling, back-talk or attitude.
8. Social Media and Cell Phones: You are expected to work during work hours. That means no texting, emailing, calling, tweeting, instagraming, facebooking, downloading, or surfing at work, unless it’s work-related. If you check your texts, emails, or social media on a company computer, cell phone or other device, the company probably has the right to look at it. If you view or send inappropriate pictures, jokes, or videos, you can be fired for doing so. There is very little privacy in the workplace, and you have few rights. Assume you’re being watched at all times at work and you won’t go wrong. Oh, and remember all those party pics and embarrassing photos you posted before you started applying for work? Employers and potential employers can see them. You probably want to check your social media pages and pull down anything you can that might be inappropriate for an employer to see.
9. Human Resources: If your employer is big enough, you probably have someone who is designated as the Human Resources person or a whole department called “Human Resources.” It may be referred to as HR. This is the place to go for information about work rules, to report sexual harassment or discrimination, and you’ll probably have to go there on your first day to fill out a stack of forms. While they can be very helpful if you have questions or concerns, they aren’t your buddies. Human Resources represents your employer, not you. They aren’t your mom or your best friend, so don’t go to them with every petty complaint, confess you did something wrong, or tell them about the wild party you went to over the weekend. Keep it professional.
10. Discrimination: Discrimination against you for being you isn’t illegal. However, discrimination and harassment due to race, sex, sexual identity, national origin, disability, religion, color, pregnancy and genetic information are. In some states, there are more categories of illegal discrimination. For instance, in Florida it’s illegal to discriminate against you because you’re too young or because of marital status. Whether sexual orientation is a protected category depends on your state and local law. No federal law bars sexual orientation discrimination.
11. Bullying: While your school might have zero tolerance for bullying, your workplace may be a bullying free-for-all. No federal or state law exists that prohibits workplace bullying. However, workplace bullies are very much like school bullies: they focus on the weak and the different. If you need to complain about a bully, make sure you do it in a way that’s protected. If the bully is picking on the weak, are they weak because of a disability, pregnancy, or age? If they’re picking on the different, is the difference based on race, national origin, age, or religion? If you report illegal discrimination, the law protects you from retaliation. If you report bullying, no law protects you.
13. What Kind Of Work You Can Do: Depending on your age, there may be limits on the type of work you can do. If you are under 14, you can work, but your options are limited. You can deliver newspapers, babysit, act or perform, work as a homeworker gathering evergreens and making evergreen wreaths, or work for a business owned by your parents as long as it’s not mining, manufacturing or one of the occupations designated as hazardous. If you are 14 or 15, you can do things like retail, lifeguarding, running errands, creative work, computer work, clean-up and yard work that doesn’t use dangerous equipment, some food service and other restaurant work, some grocery work, loading and unloading, and even do some work in sawmills and wood shops. We’re talking non-manufacturing and non-hazardous jobs only. If you are 16 or 17, you can do any job that isn’t labeled as hazardous.
The Department of Labor has a website where you can get more information about employment laws that apply to teens. An interactive advisor about federal law may be foundhere.
Of course, my book Stand Up For Yourself Without Getting Fired can help anyone new to the workplace since it covers how to handle workplace crises and issues from the interview and application, to your first day and that giant stack of papers, to workplace disputes, to promotions, to termination, and even post-termination.
There aren’t many jobs in the United States that are tougher than farmwork-—picking crops under a sweltering sun, earning just enough to survive, jumping from one unstable seasonal job to another. But the job is especially unbearable if you have to work yourself to exhaustion all day under the watch of the man who raped you.
The report, based on dozens of interviews with survivors and advocates, outlines the multiple barriers to justice that women face-—not just institutional sexism but also crippling poverty and discrimination in law enforcement. Women may feel they have little choice but to suffer humiliating treatment and abuse in order to support their families. The consequences of reporting sexual violence can be devastating for the whole household, because the boss might fire both the victim and the family members who work alongside her.
Women make up a sizable minority in a male-dominated agricultural workforce. The economic oppression that afflicts the farmworker population generally is exacerbated by a climate of gender oppression, in which women are viewed as sexual objects, and victims of abuse may face devastating social stigma even from their own community. Single women, indigenous, and lesbian, gay, bisexual, and transgender workers are especially at risk, according to HRW researchers.
The testimonial of Angela G. describes how her abuse was enforced by layers of silence and impunity ingrained in the workplace culture:
In her experience, women in general were not valued by the supervisors and the foremen, but Angela reported that because she did not have a partner, she was singled out for abuse. “I was called a dyke; they said I was a lesbian…. [The supervisor] and the foreman would laugh.” She was afraid to say anything because others who had complained of sexual harassment had been fired immediately. But to listen in silence day after day caused her a great deal of pain…
Angela stayed on, however, because she wanted to get promoted, earn a higher salary, and be better able to support her family. And then one day, a supervisor asked her to come over to his house to pick up some boxes. Angela reported that after she entered the house, he raped her.
Angela said she felt powerless: “For me, it felt like an eternity. I wanted to scream but I couldn’t. Afterward, he said I should remember that it’s because of him that I have this job, and if I say anything, I’ll lose my job…. I was afraid to call the police, to do anything. I didn’t know what to do. My mind was completely blocked off.”
No one knows how often this scene is repeated every day on the vast industrial farms that have drawn hundreds of thousands of migrants. But since the migrant farm workforce is the product of federal labor, food and immigration policies, the government is at least complicit in, if not at the crux of, this system of exploitation.
Although the law should theoretically protect all women from such abuse, immigrant workers are deterred from reporting work-related sexual violence because the law tends to criminalize them rather than treat them as survivors deserving of justice. As federal and state authorities have focused on arresting and deporting the undocumented, immigrant communities have every reason to see police as a source of terror, not protection.
Although special immigration relief known as the U-Visa is available to victims of crime, advocates are concerned that the qualifications for the visa are too stringent for people who are dealing with trauma and economic hardship. Access to counseling and other services is also severely constrained by language and culture barriers that make it hard for social agencies to build trust with underserved communities.
At the same time, sexual victimization is part of a continuum of exploitation, and as long as farmworkers, whether they’re here legally or not, are excluded from equal labor and civil rights, suffering in all forms will remain an intrinsic part of the agricultural system. Grace Meng, a researcher in Human Rights Watch’s U.S. Program who authored the report, said that while farmworkers face unique threats on the job, “a lot of the factors that make them vulnerable are true of unauthorized immigrant workers in a lot of industries.” Although special remedies like the U-Visa might help address individual violations, she said, “We think that the most practical and effective way to deal with the vulnerability of these workers and this population to crime and other abuses is to enact comprehensive immigration reform.”
It should be no surprise that on America’s farms, so many women are treated as less than human, since not even the government sees them as worthy of respect under the law.
This blog originally appeared in In These Timeson May 28, 2012. Reprinted with permission.
About the author: Michelle Chen’s work has appeared in AirAmerica, Extra!, Colorlines and Alternet, along with her self-published zine, cain. She is a regular contributor to In These Times’ workers’ rights blog, Working In These Times, and is a member of the In These Times Board of Editors. She also blogs at Colorlines.com. She can be reached at michellechen @ inthesetimes.com.
“We don’t go to work to be touched, to be talked down to, to be told what our bodies look like. We know what our bodies look like when we put on our clothes in the morning,” Uylonda Dickerson said.
But constant remarks about their bodies, and unwanted touching, advances, mean-spirited “pranks” and other forms of sexual harassment are a regular occurrence for many of the more than 30,000 women—like Dickerson—who work in the warehouse industry in the Chicago area, according to a report(PDF) released this week by the group Warehouse Workers for Justice (WWJ). And women often face retaliation for reporting harassment.
In an extreme example that is currently the subject of a lawsuit, 19-year-old Priscilla Marshall, her mother and her teenage friend allege they were repeatedly subject to aggressive and abusive sexual assaults and language by a 45-year-old manager at the Partners Warehouse in Elwood, Ill. After the three women and Marshall’s uncle and the mother’s boyfriend complained, they were fired or suspended and accused of theft, which resulted in Marshall and her mother spending 15 and seven days in jail, respectively, according to the lawsuit filed March 9.
WWJ’s Leah Fried told me that the same industry structure that allegedly allows for widespread violations of labor law, extremely low wages and unhealthy conditions also contributes to a climate of unchecked sexual harassment and retaliation. The warehousing (or logistics) industry is based on layers of subcontractors, so that major companies like Wal-Mart rarely own and operate the warehouses where their goods are stored and distributed. Fried said:
A major factor is the layering of management, it’s another way the owners say of WalMart shirk responsibility and subcontract and subcontract so no one is taking responsibility for a very basic legal obligation (avoiding sexual harassment). There’s also the low unionization rate – because so many jobs are temp jobs and because very few warehouse workers have a union, it makes it easier for management to get away with violating people’s rights. Not having a union is a big deal – and a big reason people can be exploited more easily.
WWJ (launched by the United Electrical workers union, for which Fried is an organizer) is trying to fill the gap by educating women and men about sexual harassment and their rights and responsibilities, and providing resources for legal action and a forum for organizing and leveraging community support. Various elected officials, religious leaders and other residents attended a forum on International Women’s Day, called “Take Back the Warehouse,” in reference to Take Back the Nightmarches.
WWJ’s extensive surveys of the Chicago-area industry found that about one quarter of warehouse workers are women; the Bureau of Labor Statistics reports similar numbers nationwide.
The report and forum are part of WWJ’s three-year-old campaign to improve conditions and accountability in the warehouses where consumer goods destined for stores around the country are staged for distribution.
The group has also recently launched a Warehouse Women’s Legal Defense Fund to subsidize legal action for women with sexual harassment or other gender-based complaints. In conjunction with the Working Hands Legal Clinic, WWJ recently helped Marshall and her mother, friend, uncle and mother’s boyfriend sue Partners Warehouse manager Brian Swaw, and people whom Swaw allegedly enlisted to intimidate and threaten the plaintiffs after they complained about his conduct. The lawsuit alleges Swaw repeatedly touched their breasts and buttocks, thrust his crotch in their faces and told Marshall’s then-17-year-old friend that when she turned 18 he would have sex with her.
The lawsuit also alleges Swaw also made frequent racial slurs toward Latinos, and suspended, and then fired, the plaintiffs after they complained. It also alleges he enlisted a former police officer (who was facing a federal indictment) and a private investigator to intimidate the plaintiffs and falsely charge them with theft, forgery and filing a false police report.
While that was an extreme situation, many other women told WWJ organizers that they deal with unequal pay, constant verbal and physical harassment and the threat of retaliation if they complain on a daily basis.
Elizabeth Labrador said after she complained about being paid $2 to $3 an hour less than men doing the same job at a warehouse for Petco, she was assigned to lift heavy fish tanks and ended up hurting her back.
Female workers report sexual harassment from both top managers and co-workers lower down the organizational hierarchy, so WWJ is trying to convince men they should be joining with their female co-workers to fight for better conditions rather than making their jobs even rougher. Fried told me:
A lot of men need to receive some education about what’s appropriate in the workplace. Because that’s not happening from the companies that employ them and operate the warehouse, because the industry is not doing their job, WWJ founded a women’s committee with one of the roles being to develop sexual harassment training for both women and men. The men have been incredibly supportive, it’s been eye-opening for them. They’ve found that absolutely this is an issue that affects women and also that it’s about making warehouses better for everybody.
Women quoted in the report describe constant patterns of humiliating and threatening behavior that left them exhausted and dreading their jobs. Dickerson, who worked at a Wal-Mart warehouse, said she was locked in a trailer and constantly derided by men asking things like “Did you chip a nail?” Latasha Davis described men gathering to watch women bend over to pick up boxes.
Samantha Rodriguez, a former Wal-Mart warehouse worker, is quoted in the report:
When I went to another supervisor about the harassment, he asked me out on a date. I said “no,” and eventually I got fired. I pride myself on being an independent woman. I do remodeling, I hang drywall, I put in floors. That’s my profession. So I went to warehouses because I like doing that kind of work. Now, I won’t step foot in a warehouse. I refuse to. Because, the way they treated me wasn’t right.
About the Author: Kari Lydersen, an In These Times contributing editor, is a Chicago-based journalist whose works has appeared in The New York Times, the Washington Post, the Chicago Reader and The Progressive, among other publications. Her most recent book isRevolt on Goose Island. In 2011, she was awarded a Studs Terkel Community Media Award for her work. She can be reached firstname.lastname@example.org.