Outten & Golden: Empowering Employees in the Workplace

Posts Tagged ‘Time’sUp’

Women of color face barriers in sexual harassment claims

Tuesday, May 8th, 2018

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

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

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

Minority women are still leery of coming forward

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

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

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

More to lose, less to gain

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

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

You do not have to fight this battle alone.

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

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

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

Ready to fight sexual harassment? Call Tina Tchen.

Friday, March 9th, 2018

The Grammys had a sexism problem.

Perhaps you’ve heard: That only one woman, Alessia Cara, won a televised award at this year’s ceremony; that the only female nominee for album of the year, Lorde, was not offered a solo performance slot, even though all her fellow male nominees were; that sexual harassment and violence were as inescapable in the music industry as an earworm from which even the biggest pop stars on the planet were not immune; that the numbers were in, and the numbers were damning, making self-evident the truth that had been lurking all this time by revealing that women comprise just 12 percent of the total music creator population.

At first, Recording Academy president Neil Portnow said that women who want to win more Grammys — as if the golden trophies at the end of the misogyny rainbow were, alone, the issue at hand — could solve this problem all by themselves if they were just willing to “step up.” Amid calls for his resignation, Portnow slid back from his comments, and after his apologies were made, he announced the creation of an independent task force “to review every aspect of what we do as an organization and identify where we can do more to overcome the explicit barriers and unconscious biases that impede female advancement in the music community.”

And then he called Tina Tchen.

Because if you are really ready to reckon with the sexism in your industry — that is to say, you realize it’s not merely some minor inconvenience but rather a systemic, rampant, seemingly incontrovertible crisis — then that is what you do.

Tchen is who Hollywood turned to when, in the wake of the Harvey Weinstein revelations and its aftershocks, it was well past time to get organized and act. Tchen is a co-founder of Time’s Up, the formal Hollywood initiative to combat sexual harassment and assault within and outside the entertainment industry, which launched on New Year’s Day. She’s leading the legal defense fund, which provides subsidized legal and PR support to those who have experienced sexual harassment or violence in the workplace.

She is the attorney corporations employ when they are ready to do more than the perfunctory sexual harassment trainings, when they realize that sexism has crossed a line — namely, the bottom line, because a company that cannot attract and retain women is one that cannot complete in a global marketplace — and want to change.

Tchen was Michelle Obama’s chief of staff and, before that, an assistant to President Barack Obama. (Tchen affectionately refers to the former FLOTUS as her “forever boss.” No offense, 44.) She spent a couple years as the director of the White House Office on Public Engagement, then worked with the president to create the White House Council on Women and Girls, on which she served as executive director. And all of that followed a 23-year legal career in which she rose through the ranks to become a partner in corporate litigation at Skadden, Arps, Slate, Meagher & Flom, the firm she joined after she graduated from Northwestern Law School and went to undergrad at some school outside Boston.

What might appear at first glance to be a bug in a resume longer than a CVS receipt (zero experience in the music industry) is, according to Portnow, a feature: “The fact that she lacks business ties to the music industry ensures her objectivity as chair,” he said in a statement. “In this moment, the Recording Academy can do more than reflect what currently exists; we can help lead the industry into becoming the inclusive music community we want it to be -— a responsibility that the board and I take seriously. Tina Tchen is an accomplished advocate for women and an impact-oriented leader versed in convening disparate stakeholders for a common purpose.”

A week before the Recording Academy announced Tchen’s appointment, Tchen met with ThinkProgress to talk about her work with the Time’s Up legal defense fund and combatting institutionalized sexism, something she has been doing all her life. Literally, all her life: When she was born, her father, who immigrated to the United States from China with Tchen’s mother, was in denial that he didn’t get the son he’d hoped for and insisted Tchen was a boy for days. (He came around.)

We spoke at the Washington D.C. outpost of her new firm, Buckley Sandler, in the World Wildlife Fund building, a few floors above President Obama’s post-White House office. Arriving especially polished for an ordinary Tuesday afternoon — “I did a little CNN on Time’s Up earlier today,” she explained, laughing. “That’s why I have CNN hair and makeup.” — Tchen dug into how the Time’s Up legal defense fund will work, what tackling workplace sexual harassment at work really entails, and why, in spite of everything, she does not think the solution is to burn it all down. As she sees it, this very moment “is probably the best opportunity we’ve had in generations to make these changes.”

I want to start with the latest data, that you’ve heard from over 1000 people–

1600.

And you’ve raised over $20 million. I’d like to talk through that because it seems both incredible and like a logistical challenge.

Right. Logistical challenge! (laughs) We knew once we launched on January 1st that there would be calls. But I’m not sure we realized how big a volume and across how many industries. The amazing thing about the 1600 requests is they cover, like, 60 different industries. From construction to police officers to hotel workers to government employees. So it really does validate something many of us have thought for a long time: This is very pervasive, and unreported, and it doesn’t know any boundaries in terms of geography or age or even gender or industry. That’s proving to be the case.

“Sexual harassment is the symptom at the end of the road, and the road starts with: What do our workplaces really look like?”

So we’ve done several things, knowing there would be a lot of volume. The National Women’s Law Center, which is the home of the Time’s Up Legal Defense Fund, is staffing up. So there will be dedicated staff. In the meantime, my law firm, Buckley Sanders, and several others, have been sending lawyers over there to help answer the phones and help do the screenings, so that we have the capacity. Because we knew we wanted to answer the requests as they were coming in. So of the 1600 requests, over 1,000 have already got information about lawyers they can call, and they’re in the process of getting representation.

So you’re essentially the field office and ultimately their cases are handled locally?

It’s more than that. We’re really a clearinghouse. We’re a place centrally that people can call if they need help. We’re a place centrally where attorneys can volunteer to take cases, either at a pro bono or reduced fee. And we serve as the clearinghouse as somebody calls for help, figuring out, who are the three or four lawyers in that geography who we can give that client that information?

One of our base principles is, we want the clients to always be able to make their own decisions and be empowered to do that. So the client and the lawyer make their own decision, at the end of the day, of whether they’re going to actually work together to pursue the case, or sometimes people just need advice as to whether they even have a claim or not. Sadly, for a lot of people because of statutes of limitations which are so short, they might not actually have a claim, but they need to have someone walk them through that so they can figure out what their rights are.

How do you determine — is there some kind of hierarchy of who gets the resources that you have and the money that you have? Because there’s a lot of it, but it’s not this bottomless well.

No, and anyone who knows about legal bills, even $21 million isn’t going to go far when you’ve got thousands of cases out there. So one thing is, we’re continuing to fundraise. $21 million is not the cap by any means. The GoFundMe page is still going strong.

“There are still lots of ways to mentor, to be friendly — I mean, I’m a hugger in the office and I still hug lots of people! — without abusing the relationship that you have as the person who controls their career, and their job, and their work environment.”

We’re developing criteria for funding. Of all of the cases that have come in so far have been accepted and linked with lawyers, not all of those cases will necessarily get funded, because we don’t have enough funding for every case. So the NWLC has been working on criteria for how to prioritize cases — how to divide up the money. How much is fair to give per case. This really hasn’t been done before at this scale, so it’s not like we had a lot of examples to work on. But they’re doing a very thoughtful process of developing those criteria.

The closest thing that I can think of is when, after a natural disaster, the Red Cross gets all this money and they have to decide how to divvy it up among people. Do you feel like you then end up in the business of quantifying how bad someone’s experience was?

No, I suppose for a hurricane you might! But here, it will be more around, probably, kinds of activities. We’ll set an amount for, if you’re investigating a case you can get up to this amount. [All the lawyers] are going to have to do it for a reduced fee. We need a very, very discounted fee in order to make sure there’s enough money to go around. And this is a charitable enterprise; no one is in this to make money.

So it’ll probably be by different activity stages of cases: For investigation, a cap up to this amount, for pre-trial discovery. It probably breaks up more like that. It’s not really up to us to decide the specific severity of the cases, and in fact, we can’t really get in that business because a lot of the information to evaluate cases should be privileged. The Legal Defense Fund is not the lawyer for these clients. We’re helping link them up with a lawyer. But how they decide to prosecute the case, and how weak or strong the case is, is really up to the client and his or her lawyer.

Obviously you came to this with so much knowledge already about the scale of sexual harassment and violence in this country. I’m curious what, if anything, has been surprising to you about the emails or calls you’ve been receiving, the responses you’ve been getting?

I think we’ve all been — we’re all still surprised by the breadth. We intellectually knew: We think it’s everywhere. But the idea that we have over 60 different industries among the 1600 folks who’ve called in the first month and a half, that surprised us.

I am not an employment lawyer so I don’t do this every day, so I was surprised, knowing what I do know — which is that we have Title VII, and happily we’ve had Title VII protections under employment law for going on three decades, and it provides for recovery of attorney’s fees when you win the case — so I actually, foolishly thought a lot of these cases already had lawyers, but that people who were speaking out and were getting sued for defamation didn’t have lawyers. I thought we’d have more of those cases.

And we do have a lot of those cases, where people who are speaking out — even though their cases were a long time ago — against people who are rich and powerful who have the resources to sue them, they’re on the defense side, and those cases don’t generate any fees.

“It’s a little bit like bringing your work home: Bringing the outside gladiator that you have to be into the workplace when you’re actually people’s bosses, not their opponent.”

But I am surprised at the number of cases, for example, of low-income women who have been unable to find a lawyer, even though there is the potential for recovery of attorney’s fees at the end, because they don’t make enough and therefore, the recovery’s not very big, so it would be spending a lot of time for not a lot of money. I was surprised at how many people who are out there, who have sexual harassment claims, who still can’t find a lawyer. And of course, we always knew that Title VII doesn’t cover small employers. There are lots of categories of kinds of workers who aren’t covered by those kinds of protections.

One of the things that’s been frustrating to see unfold in the reactions to movements like Time’s Up is this, “Well, I guess you can’t date at the office anymore! I guess you can’t flirt with your waitress anymore!” How do you react to that and respond to that? 

We are all worried also, by the backlash. It’s “don’t flirt with your waitress” and it’s “don’t take a female associate on a business trip.”

Right: Don’t mentor young women, Mike Pence rules at dinner.

And what I say is, that’s completely, obviously, the wrong reaction to this. The issues here aren’t about mentoring folks or relationships. Some of this is kind of easy! This is workplaces and how you should behave in a workplace, and the way you behave in a workplace is different from how you behave in a social setting. And that, when you’re the boss, you are always the boss. And you have a power relationship with the people who work for you, and you have to treat them appropriately and with respect.

There are still lots of ways to mentor, to be friendly — I mean, I’m a hugger in the office and I still hug lots of people! — without abusing the relationship that you have as the person who controls their career, and their job, and their work environment. So I think the lines are not that hard to find. But we do have to talk about it more. I think the problem that we’ve had is we don’t talk about it enough to make sure people understand the distinction, and we haven’t allowed people to also voice when they’re uncomfortable so that people can understand. Most people, if you say you’re uncomfortable, they’ll respect that. But we haven’t had a culture where it’s been okay to say, “Well, that doesn’t make me comfortable.”

It also seems that in some of these industries, especially creative industries — I think about somebody like Harvey Weinstein. There’s this pairing of, you get to be a jerk if you’re effective, if you’re a creative genius. Or that those two things are linked in some way: That the kind of outlandish, violent behavior is somehow connected to being an effective boss. You of course have worked for the Obamas. I can’t imagine that working for first lady Michelle Obama involved her belittling her employees in any way.

Right, right.

Why do you think that myth persists?

I did 23 years at a big law firm. I’ve had clients who were some of the biggest companies in the country. And I do think — not the Harvey Weinstein, the most egregious sexual assaults that are involved there, but I do think when you talk about things like verbal abuse and bullying that happens in the workplace, that’s not uncommon. And it’s often tied to, “That’s what you have to do to succeed in the workplace externally.”

If you’re in a pretty competitive industry — you’re a salesperson having to sell a lot against competitors — there are a lot of professions, like my profession, I have to go fight it out in court with people for my clients. That’s what my clients expect. That’s what I know I should be doing to be successful for my clients. But, in a lot of times, I think what happens — and again, we haven’t talked about it enough — is that toughness that you have to succeed at external, to your own workplace, gets translated to how you’re behaving in your office.

It’s a little bit like bringing your work home: Bringing the outside gladiator that you have to be into the workplace when you’re actually people’s bosses, not their opponent. And a lot of times we don’t train people well enough to be bosses, and how to manage people, and a good manager doesn’t manage the folks who are working for them in the same way I would approach an opposing counsel in a case. So we need to learn some of that behavior: How to manage differently, how to mentor differently, and how to be successful in very tough, competitive situations, in a way that doesn’t bring that tough competitiveness back to your own workplace.

I hesitate to give President Trump any credit for this moment that we’re experiencing right now. But it does feel like, as a culture, there are enough people who are angry enough that something like Time’s Up is even happening at all, and that we’re still talking about something that was sparked by a news story that broke in October in what might be the most headline-competitive environment we’ve ever had. I’m curious what you think is fueling that continued attention and passion on the part of the general public.

Here’s who I think we have to credit for a lot of that, and that, quite frankly, is the really brave individuals who are coming forward. And they’re still coming forward at some personal risk, and I think what we’ve not seen in past circumstances when this happened is that volume of outpouring of people feeling empowered to also talk about what happened to them. Those stories, and the proliferation of them, and the wide diversity of stories and the wide diversity of workplace situations, has, I think, kept it going. Because there’s a different industry and work situation with every news cycle. A lot of credit has to go to those folks.

“Nobody knew who Anita Hill was before she started testifying, and many people still, to this day, don’t know who she is. Millions of people know who these women in Hollywood are.”

And I do think the fact that it started with the women in Hollywood, who are very familiar people. In the past, people who would speak out, people didn’t really know or recognize or relate to. Nobody knew who Anita Hill was before she started testifying, and many people still, to this day, don’t know who she is. Millions of people know who these women in Hollywood are. I give them a lot of credit for being willing to use their celebrity, and to continue to use their celebrity, with each passing moment as they continue to speak out, to keep this issue in the forefront. I think that has been contributing a lot. Because people see them on their televisions at night, and see them in the movie theater. They relate to them — they feel like they have a relationship with some of these actresses. And that, I think, has really made people tune into this issue in a way that they haven’t tuned in before when the people making the allegations, which were also horrific, were not people that they knew or thought they knew.

It does feel, too, like people — in ways good and bad — are just closer to the edge than we were two years ago.

Here’s the other thing: Social media, we forget that it’s become such a fabric of our lives. We forget what it was like to spread news around or tell personal stories in a way that got the attention of folks. Before social media, there wasn’t really a vehicle for it. When Anita Hill was testifying 26 years ago, even if somebody had wanted to do Me Too then, there was no platform in which the average person who did identify with her could give voice to that in a meaningful way. (Editor’s note: Tarana Burke founded the Me Too movement in 1997.

We’re in an age right now, also, where that ability for people to see something that affects them personally, and also join in and speak out publicly about it, to have that seen by thousands of people very quickly, it gives a great power to all of these social change movements.

As much as you’re seeing that the volume of this conversation is so huge, as you say, and more people are participating in it than ever before, is there anything that you think is not being talked about in this arena that should be? Or is there anything you think is being misunderstood?

I want to always make sure that, when we talk about sexual harassment, we can’t just focus on sexual harassment itself. Sexual harassment is the symptom at the end of the road, and the road starts with: What do our workplaces really look like? To really combat sexual harassment, it’s not just: Fix our policies, do some training, and discipline some folks. It is really: Build workplaces that are more truly diverse and where everyone is treated with respect and feels safe. And that is all about addressing core structural issues around how we organize work.

That’s something I’ve been talking about since I was in the White House, with our Summit on Working Families. (Disclosure: The White House Summit on Working Families was co-hosted by the Center for American Progress. ThinkProgress is an editorially independent site housed at the Center for American Progress.) It’s something I’m building a practice here at Buckley Sandler around, which is helping companies build workplace cultures that are more supportive.

Because that’s really how you’re going to solve the problem of sexual harassment, is if you have true diversity in the workforce with women and people of color in leadership as well as in other levels within the company, that you have a workplace culture and a set of conduct that is acceptable that you set by the tone at the top, by the corporation’s heads, that say: This is the kind of company we want to be, this is the kind of workplace we want to have.

Taking those steps will not only, I think, reduce incidences of sexual harassment or, when they occur, we’ll have systems in place that respond to them appropriately. It also will benefit companies. We’ve seen plenty of the data that shows that companies that are more diverse have better returns on investment, they make better decisions, they have lower costs of turnover from their staff. And we now also see — what the current news stories are showing us — the risks to the entire enterprise if you don’t address these issues appropriately. Because you will have the problems that we’re seeing now and they can lead to real damage to your business model and to your company.

What I do hope we can get to is talking about these broader workplace issues as well, and not just the sexual harassment part. Because it doesn’t happen in isolation.

I have a feeling, given your work, that your answer to this question will be no. But because I sometimes feel this way, I want to know if you do, too: When you look at the scope of this problem and you think, okay, to deal with gender discrimination at work, we’re going to have to deal with gender discrimination all over, because we can’t suddenly expect people to skip into their cubicle and be better there than we are everywhere else — do you ever just feel like, we have to burn it all down?

Well, no. (laughs) Maybe it’s our age difference! But no. No, because I’ve seen how things can change. I know so many companies that have gotten better, that have set real different tones, that are in the process of seeing real diversity come through in their senior levels.

“Women are now 50 percent of the workforce. They graduate at a rate that’s 20 percent higher than men, in the United States. So if you want the most talented workers, you need to have a workplace that’s going to attract women as workers.”

I also really believe that the world economic system, and the global economy, and competitiveness, and the demography of workers, is all working in our favor. Meaning that women are now 50 percent of the workforce. They graduate at a rate that’s 20 percent higher than men, in the United States. So if you want the most talented workers, you need to have a workplace that’s going to attract women as workers. And globally, if we want to compete — the U.S. economy — we’re going to have to get better than being one of only two countries in the world without a paid family leave policy, because companies will move off-shore. They’ll get competition from overseas, if we don’t make sure that our workplaces are fully meeting the needs of 21st-century workers.

So all of the external forces driving the population and driving the economy are working in our favor, meaning, the companies that respond on these issues well will be able to respond to the environment that is changing. So it’s a great opportunity. It’s probably the best opportunity we’ve had in generations to make these changes.

You’ve been a part of an administration that sees these issues the way that you do. How does it feel now to be doing this work at a moment when it’s really the opposite messaging coming out of the White House?

Well, one of the things that we’ve known, even when we were in office in the White House, we didn’t have Congress for much of our administration. Therefore, some of the big federal policy changes, like passing the Paycheck Fairness Act, dealing with some of these workplace issues that have to be dealt with statutorily, we’ve confronted for now, several years, the fact that we would not be able to change federal paid leave policy, for example. So for a long time now, I have thought that the best way to change is for companies, employers, workplaces of all sectors, to voluntarily start instituting these changes.

We also have employers that are stepping up and making changes. That’s another part of Time’s Up as well: We’re all about trying to make sustainable change. I think you’ll see more and more companies who are voluntarily providing paid leave, that are changing the composition of their boards to make them more diverse and get more women on them, promoting more women into C-suite. All of those are things that we are starting to see movement on and that we’ll continue to see progress on by the end of the year.

It’s interesting to hear you talk about this all happening organically because I am very curious about: What is the meeting like? Are you just in this room with Oprah, and Shonda Rhimes, and Gwyneth Paltrow? It’s the Illuminati meetings, but just the women!

You know, there’s a great energy. There’s a great support. I’ve been in a lot of meetings with women — because that’s what I do, I’ve worked on women’s issues my entire adult life. So I’m used to the wonderful energy that you get when you’re sitting around a table with the shared experience women have, and trying to make some positive change. For a lot of the actresses, and some of them have said this publicly in interviews, they didn’t really know each other. Their experience is more like being the only woman on set. We, I think on the outside, think: Oh, it’s the Hollywood community!

Right, that they all hang out.

That they all hang out together on a Saturday night. Apparently, not so much! So these meetings have been a wonderful opportunity for them to have that experience that I have had elsewhere, and that’s great for them. They have found a whole new support network for themselves, which is terrific.

This article was originally published at ThinkProgress on March 7, 2018. Reprinted with permission. 

About the Author: Jessica M. Goldstein is the Culture Editor of ThinkProgress.

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