As the #metoo movement continues gaining momentum, the dialogue around sexual harassment and assault is shifting to reveal the epidemic of sexual misconduct in our culture. Up to 85% of women report having experienced sexual harassment in the workplace, 75% of victims of hostile work environments do not report the harassment, and 75% of those who report harassment experience retaliation. What actions come next? On April 25, 2018, activists, advocates and lawmakers gathered at the U.S. Capitol to say Enough is Enough to the culture of sexual harassment and discuss how to strengthen federal law and policy, organize survivors, address workplace policies, and develop survivor-centric solutions. The Summit exemplifies the types of discussions we need to achieve justice for sexual harassment victims and prevent harassment. Video of the Summit is available on CSPAN.
The Takeaway from the Summit
For Toni Van Pelt, President of the National Organization for Women (NOW), the takeaway from the Summit was “the deeply embedded need to overhaul the ways we deal with sexual assault from a political, legal, and cultural lens.” For her, identifying the scope of the problem, and where activists should target their energies were at the top of her list. Deborah Vagins, Senior Vice President of Public Policy & Research with the American Association of University Women (AAUW), found the Summit to show “we are at a moment in time where hopefully something can be done to address this problem” because the #metoo movement has “pierced the public consciousness” in a way we have not seen in decades.
How do We Strengthen Federal Law and Policy to Address Sexual Harassment?
Title VII of the Civil Rights Act is the federal law that makes it unlawful to discriminate because of an individual’s sex and makes sexual harassment a form of sex discrimination. In addition to built-in limitations in Title VII, court decisions have interpreted the statute in ways that further limit the protections and relief a victim can seek in court. Ms. Vagins, one of the participants on the federal law and policy panel at the Summit, said her panel identified the following barriers in Title VII cases:
- Standards of liability against the employer have become more difficult over the years. Holding an employer vicariously liable for the misconduct of a daily manager, for example, is more difficult if the manager doesn’t have the power to hire or fire you;
- Forced mandatory arbitration clauses that force victims to forego their day in court;
- Non-disclosure agreements that are a condition of employment;
- Short statute of limitations;
- Title VII’s fifteen-employee threshold for the law to apply to the employer; and
- Title VII’s limited reach that does not cover independent contractors.
Ms. Van Pelt adds that we need to look “towards strengthening Title VII protections for all workers,” including those in small companies, contractors, domestic workers and laborers like caregivers and maids, and farm and migrant labor workers because they “are some of the most abused and exploited workers in the world.” Ms. Van Pelt also emphasized the importance of renewing the Violence Against Women Act (VAWA) which will automatically expire if not renewed this year. She believes VAWA should also specifically address sexual harassment and assault in the workplace and in schools.
Potential Legislative Proposals
Besides strengthening Title VII and VAWA, Ms. Vagins and Ms. Van Pelt shared the following existing or potential bills with me:
- Arbitration Fairness Act – to prohibit pre-dispute mandatory arbitration in employment discrimination, consumer, antitrust, and civil rights cases;
- Ending Forced Arbitration of Sexual Harassment Act – limits pre-dispute mandatory arbitration in sexual harassment cases only;
- Equal Remedies Act – an older bill that would lift the caps on Title VII damages, helping to deter companies from knowingly violating Title VII;
- Fair Employment Protection Act – makes employers liable for harassment by workers who have the authority to control the daily lives of employees regardless of the authority to hire or fire;
- Bills relating to the legislative workforce and their unpaid interns;
- Bills addressing non-disclosure clauses as a condition of employment, requiring that public companies disclose the number of settlements in connection with harassment; and
- Bills with requirements for developing and disseminating workplace training programs.
Ms. Vagins points out that none of these bills holds the answer, “but in combination would go a long way.” Ms. Van Pelt believes it is also important to strengthen Title IX to ensure it is “not only protecting students on campus, but that there are clear and transparent reporting processes.” As for timing, movement on these proposals and bills won’t have to wait until after the 2018 mid-term elections. “Right now a bipartisan committee is already working on VAWA; however I believe that the influx of progressive women running for office in November will inevitably bring about a much-needed cultural change” says Ms. Van Pelt. Ms. Vagins is equally optimistic and says to
never underestimate the power of public pressure to make change.”
If either chamber flips to a different party, Ms. Vagins thinks we will “probably see a flurry of these bills pass,” so legislators need to be careful to protect existing civil rights bills from unfriendly amendments.
The Enough is Enough Summit may become a much-needed annual event to continue this important dialogue and find solutions. Throughout the year, AAUW, NOW, and some of the other organizations that participated in the Summit provide resources and legislative campaigns for sexual harassment victims their attorneys including: AAUW’s Legal Advocacy Fund to offset litigation costs and Know Your Rights materials; NOW’s national action campaigns; and the National Women’s Law Center’s Time’s Up Legal Defense Fund. If you are experiencing sexual harassment in the workplace, we can help you understand your rights.