Three ways lawmakers can fight workplace sexual harassment

The Supreme Court has recognized sexual harassment in the workplace as a form of illegal discrimination for almost 30 years. But almost any woman could tell you that, duh, just because something’s illegal doesn’t mean it doesn’t happen. We need better solutions. Here are three ways legislators could help workers fight sexual harassment.

1. Pass the Fair Employment Protection Act. 

So, the Supreme Court screwed up. In a 2013 decision, Vance v. Ball State University, the Court redefined who counts as a “supervisor” in sexual harassment cases. That might sound like a small detail, but it’s actually a pretty big deal.

So why does it matter how one little term is defined? Because under Title VII of the Civil Rights Act, employers are only automatically liable for sexual harassment if the harasser is a “supervisor.” In all other cases, the survivor of harassment needs to demonstrate that her employer knew about the harassment and failed to respond appropriately in order to hold it accountable for this form of discrimination (which is what sexual and racial harassment is, after all.)  Now, only those employees who have the actual power to hire and fire people are considered “supervisors” under the Supreme Court’s new definition of that term.

But the reality is that many workers – especially the millions of low-wage workers employed by medium and large companies — never or rarely interact with the Big Boss or even with the high-level managers who are authorized to make final hiring and firing decisions. Instead, they take direction and assignments from low-level supervisors and intermediates who may not have the power to hire or fire but certainly do have the power to make workers’ lives hell. So a floor manager, for example, could be harassing an employee, knowing — and maybe reminding her — that he has the power to assign her the hardest jobs and the worst shifts if she complains; but because he would need to get approval from someone else to actually fire her, the company won’t necessarily be held  responsible for his harassment.

The Vance definition of “supervisor” gives companies an incentive to keep harassment out of sight and out of mind. This is particularly problematic in industries where harassment is already hidden and underreported.  Agricultural workers, for instance, many of whom are undocumented immigrants, are especially vulnerable. According to an attorney with the EEOC (the federal agency charged with enforcing employment discrimination laws) farm owners often turn over operations to a bilingual employee or contractor who knows to “keep labor protections to a minimum.” The contractor doesn’t have enough power to be a “supervisor” under Vance, and the owners never know enough to be legally on the hook in court: They don’t see or come into contact with the farmworkers themselves, many of whom speak limited or no English and have no idea where or how to report harassment when it occurs. That means it’s nearly impossible for harassed workers to hold anyone accountable.

Congress could fix that. The Fair Employment Protection Act would reject Vance’s overly narrow definition of “supervisor” for one that better corresponds to the reality of workers’ lives: a “supervisor” is someone who has the power to control the day-to-day activities of workers, regardless of whether he or she has the power to hire or fire them on his or her own.

2. Abolish the tipped minimum wage.

For those lucky enough not to already know this: the federal government and almost all states allow employers to pay tipped workers like waiters an hourly rate much lower than the minimum wage and force these workers to rely on customers to make up the difference. Not surprisingly, last year, Restaurant Opportunities Centers (ROC) United found that tipped workers were subject to much more sexual harassment from customers than non-tipped workers. As one restaurant worker in Houston explained:

The one thing that really bothers me, though, is not necessarily co-workers; [in] that interaction I have more freedom to be like, ‘okay, stop it’. But when a guest does it, then I feel a lot more powerless. That’s when I’m like, man, that’s where my money’s coming from…

To put it bluntly: tipped workers are forced to tolerate sexual harassment in order to supplement poverty wages. ROC writes:

In states with a sub-minimum wage for tipped workers, wages are wholly dependent on the evaluation of a server’s worth by the customer… The documented prevalence of sexual harassment is not attributable to a simple desire for sex; rather, it reflects an abuse of power and a structural issue where women’s and trans bodies are viewed as expendable commodities that exist merely for someone else’s pleasure.

So far, seven states and Guam have abolished the tipped minimum wage. Others can and should follow suit, establishing one fair minimum wage for all workers that will eliminate the need for tipped workers to put up with harassment in order to earn a living. Of course, to do that, the minimum wage needs to be more than universal; it needs to be high enough that women and men in minimum wage and tipped jobs can afford to leave abusive work environments, if no other option is available.

3. Restore class action rights.

Betty Dukes at the Supreme Court

Class action lawsuits are an incredibly important tool to combat workplace discrimination, including sexual harassment. When they are allowed to proceed as a “class,” individual workers can sue on behalf of a whole group of employees (e.g. “all female hourly workers at Bad Company”) who are affected by the same discriminatory conditions and practices. Class actions allow workers to seek systemic change, like company-wide policy reform, and get the same relief for everyone all at once, rather than going after the employer (for the same problem) over and over in separate lawsuits. For workers who may too scared or lack the resources to speak up themselves, class actions offer the chance to achieve serious, lasting change without forcing every wronged employee to take the risks and incur the costs of bringing a lawsuit.

Certifying a class in a discrimination lawsuit became much harder in the wake of the Supreme Court’s infamous Dukes v. Wal-Mart decision in 2011. In that case, the Court ratcheted up the standard that workers must meet to show that they were subjected to a common discriminatory practice or a “general policy of discrimination” at the class certification stage, making it much more difficult to hold big companies like Wal-Mart accountable for discrimination and harassment that affects broad categories or large numbers of employees, especially if they work in different locations or report to different managers.

This means that if a huge company has a widespread problem of tolerating sexual harassment across different worksites or departments, workers have to prove they were all subject to a common unlawful practice that harmed them in the same way. By making it harder for workers to sue as a class, the Court has made it more likely that law-breaking companies will violate their employees’ civil rights — and get away with it.

In 2012, Rep. Rosa DeLauro (D-CT) introduced the Equal Employment Opportunity Restoration Act to fix that. It hasn’t been passed yet, but the law would ensure that, no matter how big the company, workers are able to come together to fight unlawful discrimination, including sexual harassment.

The article was cross-posted with Equal Rights Advocates.

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