Outten & Golden: Empowering Employees in the Workplace

Posts Tagged ‘Time’s Up’

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

Friday, March 8th, 2019

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

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

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

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

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

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

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

4 actresses call out E! for gender discrimination — while live on E!

Tuesday, January 9th, 2018

On the red carpet at the Golden Globes, actress Debra Messing called out E! News for gender pay discrimination, while being interviewed on E! News.

Messing was discussing the purpose of the “Time’s Up” campaign, an initiative started by “prominent actresses and female agents, writers, directors, producers and entertainment executives” to fight systemic gender inequality. Pay equality, Messing said, was an important part of that effort. Then she turned her attention to E!.

“I was so shocked to hear that E! doesn’t believe in paying their female cohost the same as their male cohost. I miss Catt Sadler. So we stand with her. And that’s something that can change tomorrow. We want people to start having this conversation that women are just as valuable as men,” Messing said.

Sadler recently announced she would leave E! News when she discovered her male co-host earned double her salary.

Last month, ThinkProgress reported on Sadler’s decision:

In a post on her personal blog, Sadler wrote she discovered the pay discrepancy while negotiating the contract with the network. She had suspected a pay disparity existed after an executive brought it to her attention, but had no idea just how large the gap was. Her co-host Jason Kennedy was earning close to double what Sadler made for what she describes as “doing essentially similar jobs, if not the same job.”

“Know your worth. I have two decades experience in broadcasting and started at the network the very same year as my close friend and colleague that I adore. I so lovingly refer to him as my ‘tv husband’ and I mean it,” wrote Sadler in her statement. “But how can I operate with integrity and stay on at E if they’re not willing to pay me the same as him? Or at least come close? How can I accept an offer that shows they do not value my contributions and paralleled dedication all these years? How can I not echo the actions of my heroes and stand for what is right no matter what the cost? How can I remain silent when my rights under the law have been violated?”

E! probably should have seen this coming. Messing expressed solidarity with Sadler on Twitter earlier today.

Messing and most other attendees at the Golden Globes are wearing black tonight as part of the launch of the Time’s Up campaign.

Later in the broadcast Laura Dern and Sarah Jessica Parker also took the network to task during interviews on E!.

“We need the powers that be and all the industries and networks and E! to help us with closing this pay gender gap,” Dern said.

Comedian Amy Schumer raised the issue on Instagram.

This article was originally published at ThinkProgress on January 8, 2018. Reprinted with permission.

About the Author: Judd Legum is the founding editor-in-chief of ThinkProgress.

Hollywood stars donate millions to empower more women to speak out against sexual assault

Tuesday, January 2nd, 2018

A group of 300 powerful Hollywood women launched an anti-sexual harassment initiative on Monday. The effort is billed as an expansion of the “Me Too” movement, in which women are speaking out against sexual misconduct claims by men at high levels of entertainment, government and media.

The initiative, called Time’s Up, brings together “prominent actresses and female agents, writers, directors, producers and entertainment executives” to fight fight systemic gender inequality in both Hollywood and “blue-collar workplaces” nationwide, according to The New York Times. Its founding members include actresses America Ferrera, Natalie Portman, Rashida Jones, Emma Stone, Ashley Judd, Eva Longoria, Kerry Washington, and Reese Witherspoon; lawyer Tina Tchen, Michelle Obama’s former chief of staff; co-chairwoman of the Nike Foundation, Maria Eitel; and various other showrunners and industry lawyers.

In a letter on Monday — published as a full-page ad in both the Times and the Spanish-language paper La Opinion — the group’s leading members explained that such inequality “fosters an environment that is ripe for abuse and harassment” that can no longer be ignored.

“Unfortunately, too many centers of power — from legislatures to boardrooms to executive suites and management to academia — lack gender parity and women do not have equal decision-making authority,” they wrote. “…The struggle for women to break in, to rise up the ranks and to simply be heard and acknowledged in male-dominated workplaces must end; time’s up on this impenetrable monopoly.”

The group called for a “significant increase of women in positions of leadership and power” across various industries, “equal representation, opportunity, benefits, and pay”, and “greater representation” for women of color, immigrant women, and LGBTQ women.

Time’s Up has also established a legal defense fund, housed and administered by the National Women’s Law Center, which provides subsidized legal support to those “who have experienced sexual harassment, assault, or abuse in the workplace.” According to the Times, the fund is backed by $13 million in donations and is intended for less-privileged women and men who may suffer retaliatory action as a result of coming forward about sexual harassment or assault.

The group has additionally partnered with several leading advocates in order to “improve laws, employment agreements, and corporate policies” and “enable more women and men to access our legal system to hold wrongdoers accountable.”

“It’s very hard for us to speak righteously about the rest of anything if we haven’t cleaned our own house,” TV producer and screenwriter Shonda Rhimes, one of the leaders of the initiative, said in an interview with the Times. “If this group of women can’t fight for a model for other women who don’t have as much power and privilege, then who can?”

Time’s Up comes as a response to criticism levied against Hollywood for not doing more to address victims’ voices and concerns. In December, a call for Golden Globe attendees to wear all black in protest of sexual misconduct was criticized as empty symbolism.

Actress Rose McGowan, who has been at the forefront of the #MeToo movement, blasted the decision in a tweet, calling it hypocritical.

“Actresses, like Meryl Streep, who happily worked for The Pig Monster [Harvey Weinstein], are wearing black @GoldenGlobes in a silent protest. YOUR SILENCE is THE problem,” she wrote. “You’ll accept a fake award breathlessly & affect no real change. I despise your hypocrisy. Maybe you should all wear Marchesa.”

This article was originally published at ThinkProgress on January 1, 2018. Reprinted with permission. 

About the Author: Melanie Schmitz is Associate Editor at ThinkProgress, and previously worked for Bustle and Romper. 

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