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NWLC Testimony Before the Congressional Caucus for Women’s Issues

Legal Briefs & Testimony

Testimony of Fatima Goss Graves
President and CEO
National Women’s Law Center

Congressional Caucus for Women’s Issues

Hearing: From Silicon Valley to the Factory Floor: Time’s Up for Sexual Harassment in Male-Dominated Jobs

April 24, 2018

Thank you for the opportunity to submit testimony to this Caucus on the issue of workplace sexual harassment in fields that are male-dominated. The National Women’s Law Center has worked for more than 45 years to advance and protect women’s equality and opportunity, and has long worked to remove barriers to equal treatment of women in the workplace. Protecting against workplace harassment, including sex-based harassment, is key to achieving this equal treatment.

In the last several months, increasing numbers of individuals who have experienced sexual harassment or assault at work have come forward to disclose their experiences. Many of these individuals remained silent for years because the risks of speaking out were too high. With good reason, many feared losing their jobs or otherwise hurting their careers, feared not being believed, and believed that nothing would be done about the harassment. Moreover, the laws and systems in place designed to address sexual harassment were inadequate to provide redress and justice, and instead subjected victims to additional devastating economic, physical, and psychological consequences, while protecting predators.

The public engagement on the issue of harassment over the last six months is unprecedented. Nearly every type of industry is grappling with the problem of harassment and seeking solutions. Conversations from boardrooms to community centers are also naming the link between harassment and broader workplace and cultural power dynamics.

We must seize this moment and ensure the bravery of the survivors that have come forward results in real, permanent, cultural and structural change. We know there is a huge need for reform and an appetite for this change. The National Women’s Law Center, through the National Women’s Law Center Fund, houses and administers the Time’s Up Legal Defense Fund. Since January 1, we have received over 2,500 requests for assistance from people experiencing workplace sexual harassment and assault and related retaliation.

What those requests for assistance have confirmed is that sexual harassment is a substantial barrier to women’s equality, economic security, and safety. It is widespread, affecting workers in every state, in every kind of workplace setting and industry, and at every level of employment. The incidence of harassment is higher in workplaces with stark power imbalances between workers and employers, and those that have traditionally excluded women, including both blue collar jobs like construction, and white collar ones like medicine and science. Women working in industries with a high proportion of low-wage jobs, such as food service, hospitality, and agriculture, also experience high incidences of sexual harassment.

We appreciate your efforts to address the problem of sexual harassment, including through hearings, and the recent passing of a bipartisan bill to address sexual harassment in the House. We hope that these steps are only the first of many. As you move forward, we urge you to make systemic, sustainable reforms that will benefit the nation’s workforce. Specifically, there are a number of key policy initiatives that would strengthen laws to better protect and support victims, promote accountability, strengthen enforcement, and prevent harassment. These initiatives would expand protections to greater numbers and types of workers, increase access to justice and to redress their harm, promote greater transparency, and elevate prevention practice.

I.   HARASSMENT REMAINS A SERIOUS AND PERVASIVE BARRIER TO EQUALITY, ECONOMIC SECURITY AND WORKPLACE SAFETY.

One in four women reports that she has experienced sexual harassment at work.1 In Federal Fiscal Year 2017, nearly 27,000 harassment charges were filed with the EEOC;2 nearly one- quarter of those charges alleged sexual harassment.3 But these charge statistics do not even begin to represent the extent of sexual harassment in the workplace, given that a survey found that 70 percent of workers who experience sexual harassment say they have never reported it.4 Whether suffering harassment from supervisors, coworkers, or third parties, such as customers, most victims of harassment are suffering in silence.

Sexual harassment and assault infect our workplaces and deny workers equal employment opportunities, safety, and dignity. For too long, victims of harassment and assault have lived in silence because of fear of jeopardizing their safety, jobs, financial security, and career prospects, while too often perpetrators — mostly powerful men — have escaped accountability for their actions, enabled by many who have ignored to these transgressions.

Sexual harassment is particularly common for women in low-wage jobs and in nontraditional and male-dominated fields. Today, women are nearly two-thirds of workers in minimum wage jobs, as well as two-thirds of tipped workers, and women of color are 23 percent of minimum wage workers.5 Many are working full-time and supporting families on these wages. Because women, and in particular women of color and immigrant women, are overrepresented in low- wage jobs, including minimum wage and sub-minimum wage positions, they are especially vulnerable to sexual harassment and discrimination, and retaliation when they try to enforce their rights. Women are also vastly underrepresented in nontraditional occupations — those in which women represent 25 percent or less of total employed.6 Their underrepresentation in these fields also leaves them vulnerable to harassment and discrimination.

That’s because sexual harassment isn’t really about sexual desire; it is an expression of power. It is used to reinforce cultural norms about appropriate roles, behavior, and work for women and men, and to exert control over people with less power and status in society, and in the workplace – particularly women, women of color, immigrants, and LGBTQ people. The sexual or sex- based element of the workplace harassment these individuals experience, including demands for sexual favors, or denigrating and humiliating comments, is a way of enforcing and perpetuating sexist and racist power structures in our workplaces that value women—and especially women of color—less.

A.     Harassment in Industries With Low-wage Jobs

As you heard at the previous hearing, women working in the restaurant industry, particularly women who rely on tips to supplement a sub-minimum wage, are among the lowest-paid workers, and – relatedly — experience sexual harassment at high rates.7 Sixty percent of female and transgender restaurant workers8 report that sexual harassment is an uncomfortable aspect of work life, over half of whom describe sexual harassment as occurring on at least a weekly basis.9

This harassment is perpetrated by management (according to 66 percent of restaurant workers), coworkers (according to 80 percent of restaurant workers), and customers (according to 78 percent of restaurant workers).10

Sexual harassment is also a serious problem for women working in the agricultural industry, with conduct ranging from unwanted touching and remarks to sexual assault and rape in the fields, where harassers — frequently their supervisors — are often able to perpetrate their crimes in private.11 Women who work as hotel employees likewise report facing sexual harassment from coworkers,12 supervisors,13 and hotel guests at alarming rates.14 Yet out of fear of losing their jobs and the income that is critical to their families, few women in low-wage jobs report the sexual harassment they face at work, but rather tolerate it as part of the culture of the workplace, or the cost of maintaining employment.15

The EEOC has observed that workplaces where an employee’s compensation is tied to customer satisfaction or service are at higher risk for harassment.16 Industries such as food service andretail, with high numbers of low-wage jobs, and where workers depend on tips or commissions to supplement their wages, are strong examples of sectors with this sort of risk.17 And retail workers routinely are subject to sexual harassment by customers, from lewd and sexual comments, stalking, invasive photographs, and unwanted physical contact, to sexual assault.18 A recent survey found that 58 percent of hotel workers and 77 percent of casino workers surveyed in Chicago had experienced sexual harassment by guests.19 These incidents illustrate how employers often condone or brush aside customer or client harassment by ignoring complaints and encouraging employees to cater to customers.

A.     Harassment in Fields That are Male-Dominated

Women in better-paying jobs that are male-dominated also face gender stereotypes and high rates of sexual harassment that make it harder for them to obtain and retain their jobs. The construction industry is an instructive example. Women are underrepresented in federal construction apprenticeship programs. At the end of fiscal year 2012, women were 6.3 percent of all active apprentices within federally-administered programs, but only 2.2 percent of active apprentices in the construction industry — a figure that has remained constant since fiscal year 2008.20 Women also are less likely to complete their apprenticeships as compared to men. Between 2006 and 2007, out of 120,000 apprenticeship agreements, 51 percent of female construction apprentices left their apprenticeship programs, compared with 46 percent of males.21 In four of the top five construction occupations with the highest shares of women, a greater percentage of women than men did not complete their apprenticeship programs.

While it is not uncommon for construction apprentices to face obstacles to completion, such as financial insecurity due to the cyclical nature of the work, women also face outright gender discrimination.22

The obstacles that women face in pre-apprenticeship and apprenticeship programs drive their miniscule share of the field. While construction and extraction jobs typically offer women the opportunity to earn higher wages than in traditionally female occupations,23 data indicate that most of the women in these industries face extreme sexual harassment and denigration.24 A study by Chicago Women in Trades found that 88 percent of female construction workers experience sexual harassment at work,25 more than three times the rate of women in the general workforce.26 Some of the behaviors include negative stereotypes about women’s ability to perform construction work; sexual tension injected into work contexts; intentions to reserve well-paid employment for men, “who deserve it”; and reluctance by supervisors and other officials to discipline perpetrators of discrimination.27 The harassment women may face intensifies the already high risks of physical injury, leaving some women afraid for their lives.28

The story is similar in other male-dominated fields. A recent media report highlighted how women union members working in a Ford automotive assembly plant endured years of pervasive discrimination and sexual harassment, including gendered and racial slurs, lewd comments and gestures, and demands for sexual favors.29 They were pressured not to report harassers and faced retaliation for doing so or for rejecting sexual demands, including discipline, threats, slashed tires, and dangerous work assignments.30

Women account for less than four percent of firefighters,31 and they face high rates of discrimination32 and harassment. In a survey of men and women firefighters, 32 percent of women reported pornography in the workplace and 31 percent of women reported sexual advances in the workplace.33 When these workers report harassment, they are met with apathy or retaliation.34 Likewise, women in law enforcement account for only 11.3 percent of sworn officers, 12.9 percent of sheriffs, and 16.1 percent of federal officers.35 They experience high rates of gender-based harassment at the hands of fellow officers,36 and like other women in male- dominated fields, face various forms of retaliation for complaining about harassment, including those that compromise their safety.37 Women in other traditionally male-dominated fields, such as medicine and science, also are subjected to high levels of sexual harassment,38 and are often at the mercy of a “gatekeeper” or influential senior colleague who can open doors and create opportunities for advancement, or engage in retaliation that damages their reputation and drives them out of the field altogether.39

II.     WHAT WEVE LEARNED FROM THE TIMES UP LEGAL DEFENSE FUND

Since the launch of the Time’s Up Legal Defense Fund on January 1, 2018, we have received over 2,500 requests for assistance, and they come from individuals working in a wide range of industries and every state in the country. Overwhelmingly, we’re hearing from women – particularly those in low-wage jobs, who are often the people with the most to lose by speaking up and often those who are most affected financially. We’ve heard from workers in low-wage jobs and domestic workers who have experienced sexual harassment, sexual violence, and egregious retaliation; women who are facing defamation suits or the threat of lawsuits from high- profile sexual harassers; women who need PR help to fight back against large employers and powerful men after speaking out; women who were blacklisted in their industry after reporting harassment; women working in government and in the military; and women who were sexually harassed as interns or independent contractors, by their supervisors, by their coworkers, or by third parties.

We’ve also heard from women working in male dominated fields. For instance, a woman in electrical manufacturing reported her harasser and her employer’s response only brought her further harm. Human Resources forced her to have two meetings with her harasser face-to-face and told her that if she told anyone about the investigation, they would fire her. Another woman was fired from her job at a food manufacturing plant for being a “distraction to her male coworkers.” A woman working at an auto manufacturing plant was sexually harassed and then fired for reporting it.

What the requests for assistance have also confirmed is that for women in low-wage, middle class, and high-wage jobs, sexual harassment often occurs along with other forms of sex discrimination – including gender and race-based pay discrimination, and discrimination on the basis of pregnancy. For instance, we’ve heard from women who rejected the sexual advances of their bosses and were then denied raises. For sales jobs (like car dealerships), the same attitudes about women both lead to them being sexually harassed and not getting assigned top clients to do their jobs or get commissions.

We’ve received requests for assistance from a large number of women who have spoken up against high-profile men, and then have been sued or threatened with lawsuits in an attempt to intimidate and silence them. There is still a high cost for speaking out, including a heavy potential financial cost for those who speak out about sexual harassment. Threats of lawsuits have had a silencing effect, especially when victims are unable to obtain legal counsel.

These are only a few examples of the many ways in which sexual harassment continues to compromise women’s economic security and safety, demonstrating the critical need for legislative and policy change and robust enforcement efforts.

III.     POLICY RECOMMENDATIONS

Longstanding gaps in the law, and judicial decisions undermining existing protections and their enforcement, have stymied efforts to address and prevent persistent workplace sexual harassment. These gaps put certain workers at increased risk of harassment and vulnerability to retaliation with little or no legal recourse. Court-imposed standards have made it difficult for victims to hold employers and individual harassers accountable, and federal law has failed to prevent the proliferation of employer-driven agreements that help hide the true extent of sexual harassment and shield serial harassers from accountability. Antidiscrimination laws also focus largely on remedying harassment after the fact, with little emphasis on preventing harassment in the first instance.

And it’s important to note that while this current moment of national reckoning is focused on sexual harassment, working people should not be subjected to harassment on the basis of any protected characteristic. Rates of harassment based on these other characteristics are also high.40 Sexual harassment isn’t really about sexual desire; it’s about power. And harassment doesn’t occur in a vacuum. Many women experience harassment based on their race and sex combined, or their national origin and sex, or their disability and sex. And sexual harassment often occurs with other forms of discrimination, like pay and promotion discrimination. Crafting policies only focused on sexual harassment limits our ability to truly address gender and racial inequality in the workplace. Accordingly, we urge you to ensure that any reforms also apply to claims of workplace harassment and discrimination based on sex (including sexual orientation, gender identity, pregnancy and childbirth), race, disability, age, ethnicity/national origin, color, religion, and other protected statuses.

We recommended Congress make improvements in the following areas of the law.

A.     Extend Protections to More Workers

Title VII and state antidiscrimination laws provide important protections against workplace sexual harassment — but only for some workers. Individuals deserve to be protected from sexual harassment on the job regardless of the size of the establishment where they work or their employment classification.

  • Extend protections to independent contractors. Federal antidiscrimination laws by their terms only protect “employees” from sexual harassment on the job. This leaves the growing segment of individuals classified as “independent contractors” without protection from workplace harassment, like freelancers, domestic workers, and home health care workers.41 Extending antidiscrimination protections to independent contractors would help protect many women of color and immigrants, who make up the vast majority of individuals in these
  • Apply the law to smaller workplaces. Title VII’s protections only apply to employers with fifteen or more employees.42 Reducing the employer size threshold for harassment laws and other antidiscrimination laws would ensure that employees working for small businesses — like domestic workers — will no longer be left without recourse when they are harassed.

B.     Strengthen Victim Access to Justice and Ability to Redress Harm

  • Hold employers accountable for harassment by a low-level supervisor. In 2013 in Vance v. Ball State University, the Supreme Court significantly undercut protections against supervisor harassment by essentially reclassifying as coworkers those lower-level supervisors who direct an employee’s daily work activities, but do not have the power to take concrete employment actions like hiring and firing employees.43 This means that when employees with the authority to direct daily work activities—but not the authority to hire, fire, and take other tangible employment action—harass their subordinates, their employers are no longer vicariously liable for that harassment. For too many workers seeking justice against workplace harassers in positions of power, important administrative and legal remedies are out of reach due to the Supreme Court’s misguided decision. The Fair Employment Protection Act would restore strong protections for employees from supervisor harassment.44
  • Extend the statute of limitations. Many victims of sexual harassment and assault do not come forward immediately, or even within months, to report, either due to the fear of retaliation and job loss, or because victims need time to address the trauma inflicted by the harassment. Moreover, many workers do not have the resources to easily find and consult with advocates or attorneys about their rights and legal options. For these reasons, extending the current statute of limitations for filing a charge with the EEOC significantly beyond the current time of 180 days would vastly improve victims’ ability to report and challenge harassment.
  • Eliminate or raise the caps on compensatory and punitive damages. A plaintiff’s recovery of compensatory or punitive damages for discrimination is capped under federal law depending on the size of the employer, at a maximum of $300,000. In the most egregious cases of employer-sanctioned sexual harassment, up to and including sexual assault, if a jury awarded a plaintiff millions of dollars in compensatory and punitive damages, the most she could recover from a large employer is $300,000, which could be insufficient to compensate her for the injuries she suffered. Damages caps mean that employers can come out ahead by gambling that it costs less to discriminate than to create a workplace free of discrimination and harassment.

C.     Increase Transparency Regarding Discrimination Complaints Against Employers and Their Resolution.

  • Limit employer-imposed secrecy in employment contracts. Some employers use nondisclosure clauses in employment agreements to forbid employees from speaking out about sexual harassment and assault. Other provisions, such as confidentiality clauses prohibiting employees from publicly disparaging the employer, and forced arbitration clauses requiring all employment-related disputes to be settled in private arbitration proceedings, are standard provisions in some industries, imposed on new hires as a condition of their employment. Prohibiting such provisions in employment agreements would help lift the veil of secrecy that enables predatory behavior, and protect employees’ right to speak with enforcement agencies and act collectively to challenge harassment.
  • Limit the availability of nondisclosure provisions in settlement agreements. Use of nondisclosure clauses in settlement agreements can help hide the true extent of sexual harassment at a workplace, shield a serial harasser from accountability, and prevent other victims from coming forward. On the other hand, victims sometimes want to ensure confidentiality as to these matters in order to protect themselves from retaliation or damage to their professional reputations and job prospects, and to ensure their privacy more generally. In addition, a complete ban on the use of such clauses could make employers less likely to settle claims of harassment, forcing victims to take up the difficult, expensive, and time consuming task of pursuing legal claims in court. Accordingly, regulation of nondisclosure clauses in settlements must be carefully calibrated to balance these competing interests, restoring power to a victim to decide what should be confidential. For instance, settlement agreements with nondisclosure clauses could be void unless the nondisclosure provisions benefit both parties, include language that alerts employees about any rights they are giving up, or provide a period of time for employees to review the settlement agreement with legal counsel. Courts or enforcement agencies could be required to approve settlement agreements with nondisclosure clauses.
  • Requiring disclosure or reporting of harassment claims, charges, and lawsuits. Greater transparency regarding discrimination complaints, formal charges, and lawsuits filed against an employer, and the resolution of those claims, would help alleviate the secrecy around harassment, thereby empowering victims and encouraging employers to implement prevention efforts proactively. For example, employers could be required to report regularly to an enforcement agency the type and number of discrimination complaints or lawsuits filed against the company within a particular time period, and the nature of the resolution of the claims or lawsuits. Making even some portion of the reported information publicly available would provide job applicants and employees with valuable information about discrimination and harassment at a particular workplace. Such reporting also would encourage employers to implement practices to effectively address complaints and prevent sexual harassment.

D.     Promote Prevention Practices

Prevention should be a primary goal for employers in addressing sexual harassment. While Title VII has been interpreted to provide employers with an incentive to adopt sexual harassment policies and training, it has created a situation where employers effectively are able to shield themselves from liability by having any anti-harassment policy or training, regardless of quality or efficacy. Employer anti-harassment training and policies have been largely ineffective in preventing harassment in the first instance in part because they are not mandatory, and because they are focused on mere compliance with the law, instead of addressing behaviors that are unacceptable as well as unlawful, and that if unchecked may escalate to harassment.

  • Require regular climate surveys. An effective prevention program should include an anonymous climate survey of employees, which will help management understand the true nature and scope of harassment and discrimination in the workplace. The survey can help inform important issues to be included in training, and help identify problematic behavior that may be addressed before it leads to formal complaints or lawsuits.
  • Mandate effective workplace training. Although many companies provide sexual harassment training, it often falls short of the mark. Effective training must go beyond mere compliance, or simply telling employees what the law requires. Training is more likely to be effective if it helps employees and supervisors recognize sexual harassment in the context of their specific workplace, and understand their rights and responsibilities. The most effective harassment training mandate would apply to all employers in both the public and private sectors, and require all employees to participate, with possible additional training for supervisors. The training mandate should further require that trainings be given with regularity, both upon an employee’s hire and at reoccurring intervals thereafter, and specify the content that must be included in the training.
  • Eliminate the tipped minimum wage. Women, who represent two-thirds of tipped workers nationally, are hit especially hard by the poverty level federal tipped minimum wage of $2.13 per hour. Tipped workers’ reliance on tips to supplement a sub-minimum wage forces them to tolerate sexual harassment and other inappropriate behavior from customers just to make a living, which in turn perpetuates a culture of harassment in tipped industries. Equal treatment for tipped workers—that is, requiring that tipped workers are paid the regular minimum wage before tips—can help alleviate tipped workers’ vulnerability to sexual harassment.

E.     Provide Comprehensive Supports to Low-wage Workers

  • Provide individuals who have been harassed with opportunities to seek comprehensive benefits to access justice. Low-income workers should have access to housing vouchers that can help supplement lost wages and prevent homelessness; healthcare, including mental health and counseling services; and paid safe days to take job-protected leave to care for their wellbeing and legal matters.
  • Close loopholes that exclude domestic workers and farmworkers from accessing safety net benefits available to most other workers, such as workers’ compensation, unemployment insurance, disability benefits, transportation stipends, health care and other support whether or while pursuing administrative or legal relief for a sexual harassment claim.
  • Take action to address barriers for immigrant women to receiving immigration relief. Change the requirement that workers must secure certification from law enforcement to be eligible to apply for a U-visa, and clearly define sexual harassment as a crime for purposes of U-visa eligibility.

For more details on many of these policy recommendations, please see our December 2017 resource #MeTooWhatNext: Strengthening Workplace Sexual Harassment Protections and Accountability.

*          *         *

As the movement ignited by #MeToo shows, for too long, individuals have suffered workplace harassment in silence, with little or no accountability for harassers. Now more than ever, Congress must step forward to implement reforms that will go beyond simply responding to harassment, to refashion systems, laws, and culture to ensure that victims are no longer afraid to come forward, harassers are held accountable, and harassment is prevented. Change is possible. As members of this chamber recently demonstrated in quickly passing Congressional Accountability Act reforms, harassment is not a partisan issue, it’s a critical workplace safety and equality issue. We appreciate your efforts to ensure that everyone has a safe and equitable workplace, and we welcome the opportunity to assist you.

 


 

  1. LANGER RESEARCH, ABC NEWS & WASHINGTON POST, One in Four U.S. Women Reports Workplace Harassment (Nov. 16, 2011), available at http://www.langerresearch.com/uploads/1130a2WorkplaceHarassment.pdf.
  2. EEOC, ENFORCEMENT AND LITIGATION STATISTICS, ALL CHARGES ALLEGING HARASSMENT FY2010-FY 2017, https://www.eeoc.gov/eeoc/statistics/enforcement/all_harassment.cfm.
  3. EEOC, ENFORCEMENT AND LITIGATION STATISTICS, CHARGES ALLEGING SEXUAL HARASSMENT FY2010-FY 2017, https://www.eeoc.gov/eeoc/statistics/enforcement/sexual_harassment_new.cfm.
  4. HUFFINGTON POST & YOUGOV, Poll of 1,000 Adults in United States on Workplace Sexual Harassment (Aug. 2013), available at http://big.assets.huffingtonpost.com/toplines_harassment_0819202013.pdf.
  5. NAT’L WOMEN’S LAW CTR., FAIR PAY FOR WOMEN REQUIRES A FAIR MINIMUM WAGE (May 2015), available at https://nwlc.org/resources/fair-pay-women-requires-fair-minimum-wage/.
  6. See U.S. DEP’T OF LABOR, NONTRADITIONAL OCCUPATIONS (2014), https://www.dol.gov/wb/stats/Nontraditional%20Occupations.pdf; Hegewisch, A. & Williams-Baron, E., The Gender Wage Gap by Occupation 2017 and by Race and Ethnicity, INST. FOR WOMEN’S POLICY RESEARCH (2018) https://iwpr.org/publications/gender-wage-gap-occupation-2017-race-ethnicity/ (of women working full time, “[o]nly 6.6 percent of women work in male-dominated occupations”).
  7. Women constitute 66 percent of the occupations that receive a sub-minimum wage of $2.13 per hour that must be supplemented with tips—wages that leave many women working and living in poverty. REST. OPPORTUNITIES CTRS. UNITED & FORWARD TOGETHER, THE GLASS FLOOR: SEXUAL HARASSMENT IN THE RESTAURANT INDUSTRY 5 (2014), available at http://rocunited.org/wp-content/uploads/2014/10/REPORT_The-Glass-Floor-Sexual- Harassment-in-the-Restaurant-Industry2.pdf.
  8. Id. at 2 & n.12 (“Transgender refers to gender non-conforming individuals, including people who identified as gender-fluid and gender queer. Eighteen transgender individuals participated in the survey. Due to small sample size, and high variance, the experience of transgender restaurant workers is discussed in a special section of the report”).
  9. Id. at 6.
  10. Id. at 2.
  11. HUMAN RIGHTS WATCH, CULTIVATING FEAR: THE VULNERABILITY OF IMMIGRANT FARMWORKERS IN THE US TO SEXUAL VIOLENCE AND SEXUAL HARASSMENT (May 2012), available at https://www.hrw.org/report/2012/05/15/cultivating-fear/vulnerability-immigrant-farmworkers-us-sexual-violence-and-sexual (documenting pervasive sexual harassment and violence among immigrant farmworker women); Waugh, I.M., Examining the Sexual Harassment Experiences of Mexican Immigrant Farmworking Women, 16 VIOLENCE AGAINST WOMEN 237, 241 (Jan. 2010), available at http://vaw.sagepub.com/content/16/3/237.abstract (eighty percent of female farmworkers in California’s Central Valley reported experiencing some form of sexual harassment).
  12. See, e.g., Gasper v. Ruffin Hotel Corp. of Maryland, 183 Md. App. 211, 216, (2008) aff’d, 418 Md. 594, 17 A.3d 676 (2011) (in which an employee of Ruffin Hotel Corporation sued the company because she alleged that the company retaliated against her by terminating her employment due to her reports of sexual harassment from other employees); Arthur v. Pierre Ltd., 2004 MT 303, 323 (in which a hotel dining room waitress was sexually harassed by coworker (a night auditor) and alleged that management ignored her multiple reports of sexual harassment).
  13. See, e.g., Ramada Inn Surfside v. Swanson, 560 So. 2d 300, 301 (Fla. Dist. Ct. App. 1990) (lounge supervisor of hotel sued for workers’ compensation benefits for emotional injuries after she was sexually harassed by her supervisor, including unwanted sexual contacts).
  14. UNITE HERE LOCAL 1, HANDS OFF, PANTS ON: SEXUAL HARASSMENT IN CHICAGO’S HOSPITALITY INDUSTRY (July 2016), available at https://www.handsoffpantson.org/wp-content/uploads/HandsOffReportWeb.pdf (58 percent of hotel workers and 77 percent of casino workers surveyed reported being sexually harassed by a guest); Chafoulias v. Peterson, 668 N.W.2d 642, 645 (Minn. 2003) (five female Radisson hotel employees – who eventually quit – alleged management ignored their reports of sexual harassment by male guests, in that they set up a meeting to discuss the problem, which the company then canceled).
  15. See THE GLASS FLOOR, supra note 7, at 27 (70 percent of restaurant workers surveyed felt there would be negative repercussions, such as lower tips, if they complained about customer harassment); HANDS OFF, PANTS ON, supra note 14, at 8 (hospitality workers surveyed said they chose not to report customer harassment “because inappropriate guest behavior is so frequent and widespread, it ‘feels normal’ or they had become ‘immune’ to it”). In a nationwide survey of workers in the fast food industry, nearly 40 percent of the women reported experiencing unwanted sexual behaviors on the job. Of those workers, 21 percent reported that they suffered negative workplaces consequences after raising the harassment with their employer. Hart Research Assoc., Key Findings From a Survey of Women Fast Food Workers (Oct. 5, 2016), available at http://hartresearch.com/wp-content/uploads/2016/10/Fast-Food-Worker- Survey-Memo-10-5-16.pdf.
  16. EEOC, REPORT OF THE CO-CHAIRS OF THE EEOC SELECT TASK FORCE ON THE STUDY OF HARASSMENT IN THE WORKPLACE 1, 28 (June 2016), available at https://www.eeoc.gov/eeoc/task_force/harassment/report.cfm.
  17. THE GLASS FLOOR, supra note 7, at 13; RESTAURANT OPPORTUNITIES CENTER (ROC) OF BOSTON, BEHIND THE KITCHEN DOOR: THE PROMISE AND DENIAL OF BOSTON’S GROWING RESTAURANT INDUSTRY, available at http://rocunited.org/wp-content/uploads/2016/11/BKD_Boston_Report_W.pdf (35 percent of tipped workers in Greater Boston reported that they have been sexually harassed by customers).
  18. See EEOC v. Costco Wholesale Corp., Civ. Act. No. 14-cv-6653 (N.D. Ill. Dec. 22, 2016) (jury verdict in favor of employee on hostile work environment sexual harassment claims where employee told employer customer repeatedly subjected her to unwelcome touching and advances, and stalking, and employer failed to take action), https://www.eeoc.gov/eeoc/newsroom/release/12-22-16.cfm; Swiderski v. Urban Outfitters, Inc., No.14cv6307 (S.D.N.Y. June 4, 2015) (denying retail employer’s motion to dismiss employee’s hostile work environment sexual harassment and retaliation claims, where employee alleged employer ignored her complaints that one customer made sexual comments and took photos under her skirt, and another customer physically assaulted her), http://law.justia.com/cases/federal/district-courts/new-york/nysdce/1:2014cv06307/430988/18/; EEOC v. Fred Meyer Stores, Inc., Case 3:11-cv-00832-HA (D. Or., settled 2014) (female employees at grocery store were repeatedly sexually harassed by the same customer for years, daily visiting the store and making lewd comments, cornering and groping employees and pulling an employee into his lap; employee complaints were dismissed by the employer), https://www.eeoc.gov/eeoc/newsroom/release/5-5-14a.cfm.
  19. HANDS OFF, PANTS ON, supra note 14, at 4. Only 33 percent of workers surveyed reported the incidents to managers; the most common reasons given for not reporting harassment related to a belief that little can be done to address indecent guest behavior. Id. at 8.
  20. NAT’L WOMEN’S LAW CTR., WOMEN IN CONSTRUCTION: STILL BREAKING GROUND 3 (June 2014), https://nwlc.org/resources/women-construction-still-breaking-ground/.
  21. Id.
  22. Id.
  23. Id. at 5.
  24. Id. at 7-8; MATHEMATICA POLICY RESEARCH, AN EFFECTIVENESS ASSESSMENT AND COST-BENEFIT ANALYSIS OF REGISTERED APPRENTICESHIP IN 10 STATES 50-52 (2012), available at http://wdr.doleta.gov/research/FullText_Documents/ETAOP_2012_10.pdf; Elizabeth J. Bader, Skilled Women Break Through Barriers to Entry and Promotion in Trades Work, TRUTH-OUT.ORG (October 6, 2012), available at http://www.truth-out.org/news/item/11927-skilled-women-break-through-barriers-to-entry-and-promotion-in-trades-work.
  25. CHICAGO WOMEN IN TRADES, BREAKING NEW GROUND: WORKSITE 2000 (1992), available at http://chicagowomenintrades2.org/wp-content/uploads/2015/02/Breaking-New-Ground2.pdf;  ADVISORY COMM. ON OCCUPATIONAL SAFETY & HEALTH, OCCUPATIONAL SAFETY & HEALTH ADMIN., U.S. DEP’T OF LABOR, WOMEN IN THE CONSTRUCTION WORKPLACE: PROVIDING EQUITABLE SAFETY AND HEALTH PROTECTION (1999), available at https://www.osha.gov/doc/accsh/haswicformal.html.
  1. See ABC NEWS & WASHINGTON POST, supra note 3.
  2. WOMEN IN CONSTRUCTION, supra note 20, at 8.
  3. ADVISORY COMM. ON OCCUPATIONAL SAFETY & HEALTH, supra note 25 (describing a female construction worker who had hammers and wrenches dropped on her from the scaffolding above by her male coworkers, and describing a female miner who reported that a male coworker threatened to throw her – or, as he called her, “the little bitch” – into concentrator bins, the likely result of which would have been death by suffocation or crushing”).
  4. Susan Chira and Caitrin Einhorn, How Tough Is It to Change a Culture of Harassment? Ask Women at Ford, N.Y. TIMES, Dec. 19, 2017 https://www.nytimes.com/interactive/2017/12/19/us/ford-chicago-sexual-harassment.html.
  5. Id.
  6. Women account for only 3.7 percent of firefighters. Hulett, D., et al., A National Report Card on Women in Firefighting 1 (Apr. 2008), available at https://www.i-women.org/wp-content/uploads/2014/07/35827WSP.pdf. 32 More than 84 percent of women firefighters report experiencing gender discrimination in some form, including sexual harassment.
  7. at 3.
  8. Bendick, M. & Siri,L., A National Report Card on Women in Fire Careers, INT’L ASSOC. OF WOMEN IN FIRE & EMERGENCY SERVS. (2011), https://www.i-women.org/national-report-card/.
  9. Women in Firefighting, supra note 31, at 8-9 (65.0 percent of women reported that their department has no procedures of which they were aware for addressing such complaints, and 23.4 percent reported that their supervisors fail to address problems reported to them).
  10. Diane Wetendorf, Female Officers as Victims of Police-Perpetrated Domestic Violence 1 (Apr. 2007), available at http://www.dwetendorf.com/Wetendorf_FemaleOfficer.pdf.
  11. NAT’L CTR. FOR WOMEN & POLICING, RECRUITING & RETAINING WOMEN: A SELF-ASSESSMENT GUIDE FOR LAW ENFORCEMENT 133 (2000), available at https://www.ncjrs.gov/pdffiles1/bja/185235.pdf (“[A]nywhere from 60-70 percent of women officers experienced sexual/gender harassment.”); Kimberly Lonsway et al., Sexual Harassment in Law Enforcement: Incidence, Impact, and Perception, 16 POLICE Q. 177, 185 (2012) (In a national survey of female police officers, 93.8 percent of women reported having experienced at least one or more sexual harassment behaviors, including unwanted sexual attention and being the subject of sexually suggestive remarks).
  12. at 141.
  13. See Jagsi, R. et al., Sexual Harassment and Discrimination Experiences of Academic Medical Faculty, 315 J. AM. MEDICAL ASS’N, 2120 (May 17, 2016), http://jama.jamanetwork.com/article.aspx?articleid=2521958 (almost one-third of medical academic faculty responding to survey had experienced workplace sexual harassment); Clancy, K.B.H., et al., Survey of Academic Field Experiences (SAFE): Trainees Report Harassment and Assault, 9 PLoS ONE 7 (2014), http://journals.plos.org/plosone/article?id=10.1371/journal.pone.0102172 (sixty-four percent of survey respondents reported they had personally experienced sexual harassment in the scientific fieldwork setting).
  14. See Vijayaraghavan, R., et al, It’s Time for Science and Academia to Address Sexual Misconduct, SCIENTIFIC AMERICAN , Dec. 12, 2017, https://blogs.scientificamerican.com/voices/its-time-for-science-and-academia-to- address-sexual-misconduct/.
  15. For example, in FY 2017, the EEOC received 6,696 charges of sexual harassment and 9,009 charges of racial harassment. EEOC, CHARGES ALLEGING RACE AND HARASSMENT FY 1997-2017, https://www.eeoc.gov/eeoc/statistics/enforcement/index.cfm.
  16. SARAH LEBERSTEIN & CATHERINE RUCKELSHAUS, NAT’L EMPLOYMENT LAW PROJECT, INDEPENDENT CONTRACTOR VS. EMPLOYEE: WHY INDEPENDENT CONTRACTOR MISCLASSIFICATION MATTERS AND WHAT WE CAN DO TO STOP IT (2016), http://www.nelp.org/content/uploads/Policy-Brief-Independent-Contractor-vsEmployee.pdf.
  17. 42 U.S.C. § 2000e (“the term ‘employer’ means a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year, and any agent of such a person”).
  18. 133 S.Ct. 2434 (2013).
  19. NAT’L WOMEN’S LAW CTR., THE FAIR EMPLOYMENT PROTECTION ACT: WHY WORKERS NEED STRONG PROTECTIONS FROM HARASSMENT (2018), https://nwlc.org/resources/fair-employment-protection-act-why-workers-need-strong-protections-harassment/.
Published On: May 9, 2018Associated Issues: Sexual Harassment in the WorkplaceWorkplace