Serving Up The Truth About Sexual Harassment, With A Side of Commonsense
Tuesday, June 24, 2014(Metropolitan Washington Council, AFL-CIO)
By Nikki Lewis, Executive Director, DC Jobs with Justice and Liz Watson,
Senior Counsel and Director of Workplace Justice for Women, National Women’s
Law Center
What do you call the person who can make
you stay late at work, who decides who works the night shift and who works days,
who works the cash register and who cleans the toilets? You call that person the
boss. But exactly one year ago today, the Supreme Court said that if the person
who directs your daily work harasses you, unless they also have the power to
hire and fire you, the strong protections that are supposed to kick in when
bosses harass their subordinates do not apply.
Right
about now, you might be scratching your head thinking that this doesn’t make
any sense. And you would be right. Here’s how we ended up with this terrible
rule and what can be done about it.
More than 15 years
ago, recognizing the potential for bosses to abuse their power over their
subordinates and that employers should be responsible for preventing this abuse,
the Supreme Court put in place strong legal protections from this harassment.
Then last year, a narrow 5-4 decision in Vance v. Ball State University
undercut those protections by saying they only apply to harassment by bosses who
also have the power to take actions like hiring or firing.
The Vance decision held that the person who tells you when to show up at work and what to do when you get there is just another coworker. This means that claims of harassment by the person who directs your daily work but can’t hire and fire you are evaluated under the much tougher legal standard that applies to claims of coworker harassment. As a result, it is now much harder for workers harassed by those who direct their daily work to have their day in court.
The Vance decision held that the person who tells you when to show up at work and what to do when you get there is just another coworker. This means that claims of harassment by the person who directs your daily work but can’t hire and fire you are evaluated under the much tougher legal standard that applies to claims of coworker harassment. As a result, it is now much harder for workers harassed by those who direct their daily work to have their day in court.
Nikki knows firsthand what harassment by a boss
who directs your daily work feels like. As a teenager she worked in a
restaurant where she reported to an assistant manager who harassed her and many
of the other teenage girls on the job. He dry-humped her coworker’s leg,
stared at Nikki while licking his lips, and posted lists of who had the
“best” breasts and butts. He repeatedly bugged Nikki to meet up with
him after work to drink and party, and told her that he loved her. When Nikki
rejected his advances, he retaliated by routinely assigning extra tasks that
required her to stay late and making sure he was nowhere to be found when it was
time for him to sign her time slip so that she could clock out. Nikki’s
assistant manager had plenty of power over the workers who reported to him.
Although he didn’t have the power to hire and fire them, he could make
their lives harder by giving them worse schedules, assigning them worse sections
of the restaurant, and making them stay late to do extra
work.
But the Vance decision leaves workers who report
to bosses like Nikki’s – who direct their daily work but do not have the
power to hire and fire – with watered down protections from harassment. The
Supreme Court’s rollback of harassment protections is especially devastating
to workers in the restaurant industry. A study reported that between January and
November 2011 alone, almost 37 percent of all the charges of sexual harassment
made
by women to the federal Equal Employment Opportunity Commission
came from the restaurant industry.
By one estimate,
approximately a quarter of workers get their start in the restaurant industry.
We both did. And in many of the restaurants where we worked, harassment was just
an accepted part of the workplace culture. But when workers start out exposed to
harassment on the job, it can influence what they think they have to put up with
at work for a very long time. And restaurants are just one of many work
environments in which harassment is still commonplace. One quarter of women and
ten percent of men overall report having experienced
harassment.
As a new report out earlier this year from
the National Women’s Law Center shows, in our nation’s workplaces there are
more than six million lower-level supervisors – bosses who direct employees'
daily work but who do not have the power to hire and fire. And more than half of
them are overseeing low-wage workers. Workers need strong protections from
the potential abuse of power by these
bosses.
Fortunately there is a commonsense solution.
The Fair Employment Protection Act – introduced in Congress this past March
– would make clear that the protections against harassment by a superior
extend to harassment both by bosses who have the power to take actions like
hiring and firing and those who have the authority to direct daily
work.
When workers who have experienced harassment on
the job come forward to report it, they are putting their jobs on the line.
Those who do take that brave step deserve to have the law on their
side.
photo: Lewis (right) and Watson
photo: Lewis (right) and Watson