As the #metoo movement continues to ripple through our society, public and private companies are scrambling to update their sexual harassment policies.

Our Lawmakers didn’t want to be left out of the we-hear-you lovefest and, this February, passed what many observers consider a wide-ranging revision of the Congressional Accountability Act of 1995 Reform Act. The bill got rid of mandatory pre-suit mediation and counseling (yes, you read that right, there was a counseling requirement), made legislators personally financially liable for harassment settlements and, perhaps most impressively, provided the victim with legal counsel, something sorely needed if you are a low-paid employee or intern going up against a powerful lawmaker.

Enter the Senate, whose members appear to have thought this whole levelling-the-playing-field business went a bit too far. Last month the Senate passed its own watered-down Bill without many of the House’s most encouraging ideas. For all you nerds, here is the full text. According to a letter from the ACLU (and others) to Senate leadership, the Bill’s main issues are: curtailing the lawmakers’ financial responsibility by adding procedural hurdles and limiting the type of damages they would personally pay; increasing the difficulty of proving claims by using the legal “severe and pervasive” standard; requiring the victims to ‘opt out’ of mediation; reducing transparency by shielding the accusers from public disclosure; and, again perhaps most importantly, limiting the role of the victim’s assigned advisor.

Sidebar: as the letter points out, the Senate Bill also uses the term “unwelcome harassment,” rather than just harassment. The Bill author really should come forward and explain the difference between harassment and “unwelcome harassment” to me. I would really get a kick out of that chat.

Anyway, we will have to wait and see what the reconciliation process (aka the sausage factory) comes up with. Stay tuned.

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

Toni Van Pelt, NOW President

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?

Deborah Vagins, AAUW Senior Vice President, Public Policy & Research

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.

Year-Round Resources

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.

De todas las ventajas que los empleadores tienen sobre las víctimas de acoso sexual laboral, quizás ninguna de ellas se iguala al poder que tienen los empleadores a obligar a los empleados que son víctimas de acoso sexual, a someterse al arbitraje y renuciar al derecho que tienen de presentar una demanda, ya sea en una corte estatal o federal.

Nota: por si usted no sabe, el arbitraje es un tipo de corte privada donde uno o mas árbitros hacen las veces de quasi jueces. Muchas veces, los contratos de empleo incluyen claúsulas en las que se le require al empleado someterse al arbitraje en casos de disputas laborales – incluyendo casos de acoso sexual.  Dependiendo de a qué parte le preguntemos, obtendremos diferentes reacciones sobre si el arbitraje es algo bueno.  Según la Asociación Americana de Arbitraje, el arbitraje es “más rápido y más rentable que litigar.” No es de sorprenderse que por lo general los empleadores estén de acuerdo con esta evaluación; es más, después de varias cervezas hasta podrían admitir que el arbitraje en sí favorece ampliamente a los empleadores. Pero, aunque aceptemos la premisa “rapidez-rentabilidad” (por salvar ese argumento), las víctimas de acoso sexual que buscan ser compensadas quizás no se beneficien tanto de esta rapidez y eficiencia.

El abogado general de cada estado de los Estados Unidos de Norte América parece pensar de esta manera. En una carta de fecha 12 de Febrero del 2018 dirigida al Congreso – la cual fue difundida por nuestro propio abogado general, Pam Bondi – los abogados de todos los estados concluyeron unánimemente que “[a]unque hay muchos beneficios con las claúsulas de arbitraje en otros contextos, las mismas no se extienden a los casos de acoso sexual.” Por qué? Porque los árbitros

no están colocados para asegurarse que a estas víctimas se les otorgue su derecho al debido proceso legal.”  

Estas declaraciones son bastante fuertes viniendo de representantes de los estados altamente Republicanos (también conocidos como “amigos” de los empleadores), así como de los estados altamente Demócratas.  La carta también resalta el efecto dañino que el secretismo – muchos de los árbitros son secretos ‒ puede tener en la sociedad, pues el alcance del problema básicamente se barre debajo de una alfombra proverbial.

Entonces, veremos algún cambio? Francamente no temenos idea . . . la Ley del Arbitraje Justo del 2018 fue presentada al Congreso en Marzo del 2018. La propuesta de ley pretende prohibir el arbitraje en casos relacionados con disputas de empleo, consumo, antimonopolio, y derechos civiles. Pero, como dirían los observadores de la factoría de leyes que el Congreso contempla: el camino entre una propuesta de ley y la ley en sí es bastante largo.  El movimiento #metoo ha sido claramente el ímpetu para esta propuesta de ley.  Sólo tendremos que ver si el deseo se sigue manteniendo aún después de que el tema del acoso sexual se haya desvanecido de los encabezados noticiosos.

Scandal in the Florida Legislature

The Florida legislature was rocked by scandals in 2017 when two Florida Senate investigations against Sen. Jack Latvala (R-Clearwater) were prompted by six women accusing him of sexual harassment. Rep. Latvala resigned from the Senate after the investigations showed that he engaged in harassing and inappropriately touching female staffers and lobbyists, and for potentially violating public corruption laws by demanding sex in exchange for supporting lobbyist initiatives.

Florida State Senator Jeff Clemens (D-Lake Worth) resigned after admitting to an extramarital affair with a lobbyist a day after his affair went public. And, former Republican congressman and Public Service Commission appointee, Ritch Workman, stepped down after female Senator Lizbeth Benacquisto (R-Fort Myers) accused him of touching her inappropriately and making vulgar comments.

Senator Lauren Book

These scandals and resignations led Florida State Senator Lauren Book (D- Plantation) to introduce Senate Bill 1628 to make sexual harassment in government offices a crime. The bill would have amended Florida statutes on legislative organization and the code of ethics for public officers and employees by making sexual harassment a crime and outlawing sexual advances by legislators, candidates for public office, agency employees, and lobbyists. The proposed law would have also banned the hiring of lobbyist “closers,” i.e., young men and women expected to submit to sexual advances from lawmakers in the closing days of the legislative session. Even though the Florida Senate Ethics and Elections Committee approved the bill immediately in January, different versions of the bill were approved at different points by both the Florida House and Senate, it unfortunately was indefinitely postponed and eventually withdrawn from consideration.

What are the existing laws that make sexual harassment unlawful?

Even though SB 1628 died in the Florida Senate, it is expected to make a comeback in the next legislative session. Sen. Dennis Baxley (R-Ocala), the chair of the Governmental Oversight and Accountability Committee, who refused to put the bill on the agenda, told the Tampa Bay Times that

It needs a little more time to figure out all that’s in there. It will be back. That subject is never finished.”

Outside of the Florida government, sexual harassment is a form of sex discrimination that violates both federal and Florida law. Title VII of the Civil Rights Act of 1964 is a federal law that prohibits discrimination in employment on the basis of sex, race, color, national origin, and religion. In Florida, the Florida Civil Rights Act (“FCRA”) of 1992, Section 760.01, et. seq., Florida Statutes, makes it an unlawful employment practice to “discharge or to fail or refuse to hire any individual, or otherwise to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, pregnancy, national origin, age, handicap, or marital status.” Like Title VII, sexual harassment is a form of sex discrimination under the FCRA.

Bill Eventually Withdrawn; What Now?

The bill that was inspired by the high-profile resignations would have created a specific sexual harassment statute in Florida prohibiting sexual harassment in government workplaces and agencies failed in the last legislative session and we will have to wait and see if it is reintroduced in the fall. So, what can Florida government employees who suffered sexual harassment do? Title VII and the Florida Civil Rights Act provisions are still in place and provide civil relief, but don’t go as far as SB 1628 would have gone and made sexual harassment a crime or ethics violation. The same standards would need to be applied for now until stronger state legislation is passed.

We Can Help

If you believe you have been the victim of sexual harassment and would like to discuss what remedies may be available to you under both the federal and Florida Civil Rights Acts, please feel free to contact us to discuss your situation.