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 at[email protected].
Colorado newspapers have covered extensively the recent trial, conviction and sentencing of former 7th Judicial District Attorney Myrl Serra on extortion and unlawful sexual contact charges. The conviction against Serra stemmed from his illegal maltreatment of three female employees in his Montrose and Delta, Colorado western slope offices – sexually harassing and assaulting them, threatening their jobs, and forcing them to provide sexual favors.
This case, of a public official and lawyer breaking the law, reminds us that sexual harassment continues to occur in all types of occupations and workplaces. There are steps everyone can and must take to stop and prevent it.
If you experience sexual harassment on the job, remember that you’re not alone. Trust your instincts, and don’t blame yourself. Be assertive and say no clearly. Document every incident in detail. Look for witnesses and other evidence from co-workers or former employees. Research your employer’s and your union’s channels for reporting sexual harassment, and use them. As Serra’s staff found out, addressing sexual harassment in the workplace is difficult, so seek emotional support. If all else fails, take legal action.
If you are not the one being harassed, support your co-worker by validating that harassment is wrong, affirming her feelings, and listening without judgment. Be sure that your behavior isn’t part of the problem. Challenge the harasser’s inappropriate behavior. Work with others toward a harassment-free work environment, whether that harassment is sexual in nature or based on someone’s race, sexual orientation or other characteristics.
If you’re a manager, you have special responsibilities. You also have special opportunities to be part of the solution. Be a role model. Be a good listener. Be objective and consistent. Be informed, and be willing to ask for help when you need it. Be vigilant, and don’t wait for a crisis.
Employers can develop, update and uniformly implement policies to stop and prevent sexual harassment. Emphasize prevention through education and training. Clearly define procedures, give several options for reporting, and be sure that investigations are prompt and fair. Administer appropriate discipline, regardless of the position of the harasser.
To learn more about what you can do at work and what your legal rights are concerning sexual harassment, call the 9to5 Job Survival Helpline at 1-800-522-0925 or visit us online at www.9to5.org.
About the Author: Linda Meric is the Executive Director of 9to5, National Association of Working Women, a multi-racial membership organization founded in 1973 to strengthen the ability of low-wage and low-income women to win economic justice through grassroots organizing and policy advocacy on workplace and safety net issues. Linda helped found 9to5 Colorado in 1996 and served as the chapter’s Director until the Fall of 2004 when she became 9to5’s national Executive Director. Under Linda’s leadership, 9to5 has won important victories in the arenas of work-family, anti-discrimination, wages, good jobs, welfare, unemployment and child care.
Like many baby boomers who regularly watch AMC’s “Mad Men,” I marvel at how accurately they get it: the smoky ambiance, the retro style and the subtleties of how people lived, worked and played in those good/bad ole days. Each Sunday we watch history unfold through the characters who work at the Sterling, Draper, Cooper and Pryce Ad Agency. A recent episode (aired on 9/12/10) particularly intrigued me, as a psychologist and author who writes about women’s issues in contemporary society. The episode brilliantly illustrated a cultural phenomenon that I have called “the beauty paradox.” (see my recent Huffington Post piece by that name), highlighting its origins and continued influence in today’s world.
The beauty paradox is the ambivalence women feel about the role beauty plays in their personal and professional lives. Should or shouldn’t looks matter? Are smart women taken less seriously if they place importance on their appearance? Are sensuality and femininity at odds with ambition and success at work? In “Mad Men” — where women are growing increasingly madder about this burgeoning issue — we get to watch a dramatization of this cultural phenomenon.
This particular episode revolved largely around the two females leads: Joan, the voluptuous secretary and Peggy, the brainy creative director. They engage in a series of interchanges with their male office mates, who range from the crude and chauvinistic to the slowly emotionally evolving partner in charge, Don Draper. The boys view Joan both as an object of desire and derision, openly poking fun at the role she plays in the office. “Joan’s on the desk with boobs on the blotter,” they laugh, underestimating her innate, instinctive intelligence, even if we viewers know better. Peggy is portrayed as smarter and more ambitious, the worker-bee who can hardly relate to Joan. The men devalue her too, as the gal trying to be one of the boys, although they hardly view her, or any woman, as a serious professional threat. When Peggy asks advice of Draper — the only male who seems unfazed by either of these women — he encourages her to take the matter into her own hands. A cultural revolution is beginning.
Here is where it gets complicated. As we see roles start to change and power begin to shift, we also witness an internal battle growing within women themselves. And it is there that “Mad Men” gets it right again. Peggy is shown trying to deal with these bad boys in the professional manner suggested by her boss. Being new to this role, she tries first to give them fair warning about Joan’s true influence in the office, but she gets nowhere. They continue the banter, mocking Joan, “What do you do around here besides walking around like you’re trying to get raped?” Peggy is then faced with an internal debate, one that I believe continues in the minds of many women today: does she side with her own sex against the men’s demeaning attitude toward a fellow female worker? Or does she look the other way in order to side with the men, who clearly dominate the coveted roles at the agency? Mustering up courage, she decides to fire Joey, Joan’s most flagrant abuser and as he leaves, he tells Peggy, “Well, I was wrong about you.” To his fellow ad men, Joey warns “Watch out fellas, the fun is over.” These may be the episode’s most revealing and interesting moments. Clearly, Peggy is hurt by the men’s disappointment in her, but she also feels triumphant as she exercises, for the first time, the authority granted by her boss. She feels, in fact, more like one of the boys than she ever has, excited by the power she senses will grow.
That is, until she shares her courageous act with Joan, who is not at all pleased by Peggy’s defense of her womanhood. From Joan’s perspective, she has only been further devalued, this time by her female cohort whose actions have painfully highlighted Joan’s position — the beautiful secretary who needs to be saved by someone with more male-like power. We, as viewers, also shift from applauding Peggy’s new found consciousness to lamenting any diminution of Joan, a woman we know is capable of defending herself. The beauty paradox is played out between these two women for us all to see. It is a drama surprisingly similar to the one played all too often (albeit, behind closed doors) in women’s lives today.
While the reality of sexual harassment has changed somewhat since the “Mad Men” days, women continue to struggle with how to mesh beauty and sensuality with their professional lives. They struggle with one another — like Joan and Peggy did — and within themselves. They worry if their looks will interfere with their climb up the ladder. They are not sure if overt femininity displays power or weakness. The dilemma still remains; which side to take? Should the Joans of today minimize their beauty in the service of establishing themselves as smart, clever women? Should today’s Peggys let themselves enjoy being a girl and embellish their femininity or will that put them at risk of losing out in their race to the top?
Joan was on to something in that elevator when she told Peggy she would not be seen as a heroine so much as just “another humorless bitch.” The Women’s Movement was supposed to resolve this dilemma as the glass ceilings were being broken at Sterling, Draper, Cooper, Pryce and elsewhere. But the truth is, women continue to struggle with this issue in spite of all the crashing and breaking they’ve done over the past 50 years. We may have a female Secretary of State. Women sit as judges on the Supreme Court. There are Peggy Olsens all over the media world. Yet still, being female, attractive and powerful at the same time remains a complicated equation. The title of AMC’s hit series may be “Mad Men,” but in many ways the show is about its women and the evolution of their revolution.
Oh, and let’s not forget Betty Draper, suffering out there in stagnant suburbia. Her unhappy, stay-at-home mother role is about to undergo its own revolution. Fast forward (which means an episode sure to be coming soon) to another Betty, with the last name Friedan. She will give an identity to the “no name illness,” being increasingly experienced by the women of “Mad Men’s” era. And from what women tell me today, I’m not sure we have yet found a full cure for this cultural malady. Your thoughts?
About The Author: Vivian Diller, Ph.D., is a psychologist in private practice in New York City. After completing her Ph.D. in clinical psychology, she went on to do postdoctoral training in psychoanalysis at NYU. She has written articles on beauty, aging, eating disorders, models, and dancers, and served as a consultant to a major cosmetic company interested in promoting age-related beauty products. Her book, “FACE IT: What Women Really Feel As Their Looks Change” (2010), written with Jill Muir-Sukenick, Ph.D. and edited by Michele Willens, is a psychological guide to help women deal with the emotions brought on by their changing appearances. “Today” co-host Hoda Kotb called it “a smart book for smart women.” For more information, please visit www.VivianDiller.com.
After months of complaining that a female co-worker had repeatedly harassed him to have sex with her, Rudolpho Lamas’s boss offered a suggestion. Maybe, the boss said, Rudolpho should try walking around the office singing, “I’m too sexy for my shirt.” Everyone at work thought the situation was hilarious: a widower turning down the explicit sexual advances of an attractive woman. But Rudolpho Lamas and his lawyers are not laughing.
When does flirting at work cross the line and become sexual harassment under Title VII of the Civil Rights Act, Lamas’s lawyers asked. And, does Title VII impose different standards on men and women in sexual harassment cases? Finally, do gender stereotypes have a place in the jurisprudence of Title VII?
Earlier this month the Ninth Circuit Court of Appeals in San Francisco answered Rudolpho’s attorneys’ questions in a case involving a man who alleged he had been sexually harassed by a female co-worker in direct violation of Title VII. (E.E.O.C. v. Prospect Airport Services (9th Cir. 9/3/2010).) The Court’s decision is interesting, not so much for its ultimate finding—that Title VII indeed provides equal protection to male and female victims of sexual harassment is well established—but for the way the Court considers socio-cultural stereotypes about gender in the context of a Title VII claim.
Before turning to the drama of E.E.O.C. v. Prospect Airport Services, a few words about the stage on which Rudolpho Lamas’s story is now playing out.
It is illegal to discriminate in the terms and conditions of employment based on the gender of a person under Title VII of the Civil Right Act. Under Title VII, sexual harassment is considered to be a form of sex discrimination.
A Title VII sex harassment claim can be based on two theories of liability: (1) economic quid pro quo; or (2) hostile environment.
In a typical case of quid pro quo sexual harassment, “a supervisor relies upon his [or her] apparent or actual authority to extort sexual consideration from an employee.” Hensen v. City of Dundee 682 F.2d 897 (11th Cir. 1982). “Have sex with me,” says the supervisor, “and you’ll get that promotion.”
In a hostile work environment Title VII case, a co-worker or a supervisor’s gender-biased conduct is so severe or pervasive that the employee’s work environment is severely impacted. “[W]hen a supervisor sexually harasses a subordinate because of the subordinate’s sex, that supervisor “discriminate[s]” on the basis of sex.” Meritor Savings Bank, FSB v. Vinson, 477 US 57 (1986). And, of course, that is what Title VII’s gender provisions guard against: discrimination based on sex.
This month’s Ninth Circuit case was based on the second of these two Title VII liability theories. To maintain a gender-based, hostile environment case, a worker must show that:
(1) he or she was subjected to verbal or physical conduct of a sexual nature
Lamas presented evidence that a female co-worker repeatedly asked him to go out with her and on several occasions made explicit references to her desire to have sex with him. She wrote to him, “I’ve been thinking of you a lot lately. I’ve been having crazy dreams about us in the bath tub yeah in the bath tub… Seriously, I do want you sexually and romantically!”
The Court had no trouble finding that the conduct was sexual. “She performed gestures simulating fellatio, and gave him a photograph of herself emphasizing her breasts and possibly without clothes on. Her proposition was for sex, not a cup of coffee together.”
Having established the conduct was of a sexual nature, the Court went on to consider whether Lamas might have welcomed the conduct.
Element 2: Welcomeness
The Court next considered how the welcomeness element of the three-part prima facie case must be proved in a case involving a male victim and female harasser. What evidence does a male victim of sexual harassment need to present to establish that the sexual advances of a co-worker were unwelcome? The short answer is, the same evidence a woman needs to present.
Lamas’s employer apparently argued in the lower court that men are more likely than women to welcome the sexual advances of a co-worker. Even Lamas admitted that “most men in his circumstances” would have welcomed the invitations. So, what did the Ninth Circuit think about this digression into cultural stereotypes? Not much.
The Court was quick to point out that suppositions about what most men wanted at work was itself a stereotype and, thus, was not evidence of anything. “[W]elcomeness is inherently subjective, (since the interest two individuals might have in a romantic relationship is inherently individual to them), so it does not matter to welcomeness whether other men might have welcomed Munoz’s sexual propositions.”
“Title VII is not a beauty contest, and even if Munoz looks like Marilyn Monroe, Lamas might not want to have sex with her, for all sorts of possible reasons.” Though the reference to Marilyn Monroe is a bit old school, the message is clear and contemporary. Men, like woman, have lots of reasons to reject sexual advances by co-workers, including religious beliefs, fear of sexual harassment lawsuits, fear of complications in the workplace, fear of pregnancy or, as the Court explained, fears about facing two decades of child support payments. Or, the Court explained, “[Lamas] might feel that something was mentally off about a woman that sexually aggressive toward him. Some men might feel that chivalry obligates a man to say yes, but the law does not.”
While the Court focused on the subjectivities of welcomeness, it observed that welcomeness has an objective component as well. To hold the employer liable under Title VII, the unwelcomeness must be communicated. The employer must be told about the harassment so it can evaluate and respond to the allegations. “Sometimes the past conduct of the individuals and the surrounding circumstances may suggest that conduct claimed to be unwelcome was merely part of a continuing course of conduct that had been welcomed warmly until some promotion was denied or employment was terminated. That is a credibility issue.”
Element 3: Severe or Pervasive
Title VII is not a “general civility code” either. It is not meant to protect workers against “the ordinary tribulations of the workplace, such as the sporadic use of abusive language, gender-related jokes, and occasional teasing.” Faragher v. Boca Raton, 524 US 775 (1998).
Title VII is designed to provide legal remedies to those employees who have been subjected to significant gender-based harassment and discrimination. In other words, it protects employees who have been subjected to sexual conduct that is severe or pervasive.
Some conduct, such as a sexual assault of a co-worker, is severe enough to provide an immediate remedy to a worker under Title VII. A sexual assault immediately creates an abusive working environment.
Less egregious conduct can provide grounds for a Title VII claim, as well, if: (1) it happens often; and (2) it is of such nature that it is offensive to both the victim and a reasonable person in the victim’s circumstances.
Having a co-worker flash a nude picture of himself (or herself) to you one time at a holiday party might be offensive. The one-time, alcohol-driven transgression of a co-worker would not provide grounds for a Title VII claim, however. But what if a co-worker (male or female) constantly displayed pornography on his (or her) computer in a cubicle shared with another worker? What if this conduct was part of an attitude that permeated the workplace with gender bias? If the cubicle mate’s objections and complaints were ignored by the employer, and the conduct continued, it might become pervasive enough to alter the conditions of the workplace in violation of Title VII.
Most Title VII claims involve a series of such increasingly troublesome events, none of which alone would support a strong Title VII lawsuit. But taken together, they often do. So, on a behavioral scale ranging from off-color jokes to things you only see on Mad Men episodes, the case law teaches that the more outrageous the conduct, the fewer times it must occur to be actionable, and vice versa. The courts treat it as a classic inverse relationship.
Putting It All Together
By looking at the all of the circumstances of the workplace in Prospect Airport Services, the Ninth Circuit found sufficient evidence of unlawful sexual harassment to send the case back to the trial court for further proceedings. The female employee’s conduct obviously was sexual. And Lamas made it clear that he wanted the conduct to stop. The conduct was pervasive and had a serious negative impact on conditions at work. Lamas’s job performance suffered. When the harasser told her co-workers about her efforts to seduce the victim, they mocked Lamas and questioned his sexuality. Lamas complained several times to his supervisors about the harassment, but nothing was done.
If Rudolpho Lamas can convince a jury that all of this is true, then he will have proved all of the elements of a Title VII sex harassment case.
Guidelines for Flirting at Work?
In its decision earlier this month, the Ninth Circuit made it clear it does not consider all romantic overtures, or even all sexual propositions, to constitute unlawful sexual harassment
People spend most of their waking hours with other people at their workplaces, so that is where many meet and begin social relationships, and someone has to make the first overture. Some people have more social finesse than others, and many might suggest coffee or a trip to an art exhibition rather than sex, but mere awkwardness is insufficient to establish the “severe or pervasive” element.
Directly propositioning a co-worker to have sex might be incredibly cheeky and against company policy (it could get a person fired), but it does not violate Title VII. “Had Munoz merely asked Lamas to go out on a date, or to see whether they might have a romantic relationship, or straightforwardly propositioned him for sex, and then quit when he clearly told her no, the EEOC would not have shown enough evidence to survive summary judgment.”
Does this mean that acting like a normal, socio-sexual human being at work is legal under federal law? Undoubtedly so; but the definition of normal remains as subject to context, credibility and the uncertainties of the civil litigation system as ever before.
Has the Ninth Circuit now established federal guidelines for flirting at work that are applicable to men and women across the country? Not really. But, what the Court has done is to restate well established principles of law: men and women have identical employment rights, as well as identical burdens of proof, in sexual harassment cases brought under the Civil Rights Act.
About the Author: Patrick Kitchin is a labor rights attorney with offices in San Francisco and Alameda, California. He has represented thousands of employees in both individual and class action cases involving violations of California and federal labor laws since founding his firm in 1999. According to retail experts and the media, his wage and hour class actions against Polo Ralph Lauren, Gap, Banana Republic, and Chico’s led to substantial changes in the retail industry’s labor practices in California. Patrick is a 1992 graduate of The University of Michigan Law School and is personally and professionally committed to the protection of workers’ rights everywhere. For more information about his practice you can visit his website here.
Sex Bias Case Ends With Huge Punitive Damages Award
The drug maker Novartis was hit with $250 million in punitive damages last week because of discrimination against thousands of female sales representatives. Issues involved discrimination in pay, promotion and pregnancy. The punitive damages award represented 2.6 of the company’s 2009 $9.5 billion revenue. Earlier in the week, the jury awarded $3.3 million dollars in compensatory damages to 12 of the women who testified. The case is reported to be the largest discrimination verdict ever.
Complaints were filed against MX Energy, a Connecticut natural gas retailer, under Title II of Genetic Information Nondiscrimination Act of 2008 (GINA), which prohibits genetic information discrimination in employment. The new federal law took effect on November 21, 2009.
GINA prohibits discrimination against employees or applicants because of genetic information. GINA also restricts acquisition of genetic information by employers and other entities covered by Title II, and strictly limits the disclosure of genetic information.
With all the talk about illegal immigration, one might wonder what the rights are of the over eight million undocumented workers in this country. Carolina Nunez, a law professor at Brigham Young University’s Reuben Clark Law School, wrote an interesting article about the topic which you can read here. The piece appeared in the Spring 2010 issue of the Clark Memorandum, a publication of BYU’s J. Reuben Clark Law School.
Should undocumented workers enjoy the same workplace protections that authorized workers enjoy? When and how much should immigration status matter? Does being here count for anything? It is no surprise that the answers are less than clear.
Goelzer had taken a significant amount of authorized FMLA during the four preceding years to deal with her own health issues as well as those of her husband and mother. The defendants claimed she was fired because they wanted to hire someone with a “greater skill set.” The district court granted judgment against Goelzer.
The Seventh Circuit Court of Appeals reversed this month stating that comments suggesting frustration with her use of leave, Goelzer’s favorable performance reviews, and the timing of her termination could lead a jury to conclude that Goelzer was fired because she exercised her right to take FMLA. This is a very good case for those who are claiming an interference or retaliation claim under the FMLA.
Employers Liable For Third Party Harassment: In Beckford v. Department of Corrections, Melanie Beckford, and thirteen other female employees, claimed that the Florida Department of Corrections failed to remedy the sexually offensive conduct of inmates — including the frequent use of gender-specific abusive language and pervasive gunning, the notorious practice of inmates openly masturbating toward female staff. The jury found in favor the plaintiffs and awarded each $45,000 in damages.
The Department appealed and contended that it could not be liable under Title VII unless its staff actively encouraged or participated in the harassment. The Eleventh Circuit affirmed the verdict and concluded that the jury was entitled to find the Department liable because it unreasonably failed to remedy the sexual harassment by its inmates. The Court said:
It is well established that employers may be liable for failing to remedy the harassment of employees by third parties who create a hostile environment. …It makes no difference whether the person whose acts are complained of is an employee, an independent contractor, or for that matter a customer.
Employees are often harassed at work by individuals who are not employees. This case, which holds that employers are liable for harassment by third parties, is an important affirmation of this particular aspect of employer liability under Title VII.
*This post originally appeared in Employee Rights Post on May 24, 2010. Reprinted with permission from the author.
About the Author: Ellen Simon: is recognized as one of the leading employment and civil rights lawyers in the United States.She offers legal advice to individuals on employment rights, age/gender/race and disability discrimination, retaliation and sexual harassment. With a unique grasp of the issues, Ellen’s a sought-after legal analyst who discusses high-profile civil cases, employment discrimination and woman’s issues. Her blog, Employee Rights Post has dedicated readers who turn to Ellen for her advice and opinion. For more information go to www.ellensimon.net.
Ninth Circuit Certifies Wal-Mart Class Action: In Dukes v. Wal-Mart, a decision from the Ninth Circuit Court of Appeals on April 26th, the Court certified a class in a Title VII lawsuit involving 1.5 million women seeking compensation for back pay. The Court remanded the case to the district court for a determination regarding punitive damages based upon several factors set forth in the decision. The next step is most likely a request for the Supreme Court to hear the case. For more about the case, see the California Punitive Damages Blog. For an interesting story about Betty Dukes, the Wal-Mart greeter and lead plaintiff see the article here from the Huffington Post. This case is reported to be the largest class action in history.
EEOC Collects $471,000 In Sex Harassment Case: The EEOC reported last week that Everdry Marketing and Management paid $471,096 in damages, plus $86,581 in post-judgment interest to 13 victims of sexual harassment. The payout stems from a four week jury trial in Rochester, New York and a Second Circuit Court of Appeals decision which affirmed the award in favor of the plaintiffs. The case involved a prolonged period of physical and verbal sexual harassment of mostly teenage telemarketers by male managers and co-workers at Everdry’s Rochester, N.Y. location including demands for sex, groping, sexual jokes and constant comments about the bodies of women employees. The story presents another example of the widespread problem of teenage sexual harassment in the U.S
Has The Sixth Circuit Had An Attitude Adjustment?
Two cases last month out of the Sixth Circuit Court of Appeals made me think that attitudes on employment discrimination cases may be shifting.
Summary Judgment Reversed In Race Discrimination Case: In Thompson v UHHSS RichmondHeights Hospital, Inc, the plaintiff was terminated from her position as a food production supervisor when she was told that her position was eliminated in a restructuring. Thompson believed that she was selected for termination because of her race and filed a lawsuit. The district court granted summary judgment against her. The Sixth Circuit reversed finding that evidence of Thompson’s superior qualifications in comparison to the employee who assumed most of her job duties showed that she was replaced and also showed pretext. In addition, evidence that a supervisor said to “get rid of” certain black employees whom he called “troublemakers,” which the district court gave “little weight,” corroborated accusations of discriminatory behavior according to the Court.
Sexual Harassment Verdict Affirmed On Appeal: In West v. Tyson Foods,Inc. the Court affirmed a sexual harassment award including $750,000 for past and future mental distress, and $300,000 in punitive damages. In addition to great language on damages, the Court also addressed the sufficiency of reporting sexual harassment to one supervisor as constituting “notice” and a “missing evidence” jury instruction from which the jury is entitled to draw a negative inference. The plaintiff, an assembly line worker, was subjected to a barrage of verbal and physical harassment – 10 to 15 times per shift — during her five weeks of employment at the Tyson Foods plant in Robards, Kentucky. The jury awarded more in damages that West’s lawyer requested which the Sixth Circuit both addressed and confirmed.
About the Author: Ellen Simon: is recognized as one of the leading employment and civil rights lawyers in the United States.She offers legal advice to individuals on employment rights, age/gender/race and disability discrimination, retaliation and sexual harassment. With a unique grasp of the issues, Ellen’s a sought-after legal analyst who discusses high-profile civil cases, employment discrimination and woman’s issues. Her blog, Employee Rights Post has dedicated readers who turn to Ellen for her advice and opinion. For more information go to www.ellensimon.net.