Beyond the Bad Apple—Transforming the American Workplace for Women after #MeToo
I. U.S. Legal Framework
TOPTitle VII of the Civil Rights Act of 1964 (Title VII) prohibits employment discrimination in hiring, firing, and compensation, and terms, conditions, or privileges of employment on the basis of race, color, religion, sex, or national origin.2
Civil Rights Act of 1964 §7, 42 U.S.C. §2000e et seq. (1964).
29 C.F.R. §1608.1 (1979).
Id.
In the mid-80s, courts began to recognize workplace sexual harassment as a form of gender discrimination under Title VII.5
Meritor Sav. Bank v. Vinson, 477 U.S. 57, 60 (1986); Anita Bernstein, Law, Culture, and Harassment, 142 U. Pa. L. Rev. 1227, 1267 (1994) (“The victim of sexual harassment is a vulnerable player within the courts. Sexual harassment protections in America are almost completely the product of the judiciary; as a statute, Title VII gives virtually no guidance about this type of sex discrimination.”).
Gallagher v. Delaney, 139 F.3d 338, 342 (2d Cir. 1998); Meritor, 477 U.S. at 64; Los Angeles Dept. of Water and Power v. Manhart, 435 U.S. 702, 707 n.13 (1978) (quoting Sprogis v. United Air Lines, Inc., 444 F.2d 1194, 1198 (7th Cir. 1971)) (“The language of Title VII is not limited to ‘economic’ or ‘tangible’ discrimination. The phrase ‘terms, conditions, or privileges of employment’ evinces a congressional intent’ ‘to strike at the entire spectrum of disparate treatment of men and women’ in employment’”); Ellison v. Brady, 924 F.2d 872, 879, 880 (9th Cir. 1991) (quoting Henson v. City of Dundee, 682 F.2d 897, 902 (11th Cir. 1982)) (“By acknowledging and not trivializing the effects of sexual harassment on reasonable women, courts can work towards ensuring that neither men nor women will have to “run a gauntlet of sexual abuse in return for the privilege of being allowed to work and make a living.”“)
Ellison, 924 F.2d at 881 (quoting Andrews v. Philadelphia, 895 F.2d 1469, 1483 (3d Cir. 1990)) (“Congress did not enact Title VII to codify prevailing sexist prejudices. To the contrary, “Congress designed Title VII to prevent the perpetuation of stereotypes and a sense of degradation which serve to close or discourage employment opportunities for women.”)
See e.g., Hall v. Gus Constr. Co., 842 F.2d 1010, 1017, 1018 (8th Cir. 1988): (“Title VII does not mandate an employment environment worthy of a Victorian salon. Nor do we expect that our holding today will displace all ribaldry on the roadway. One may well expect that in the heat and dust of the construction site language of the barracks will always predominate over that of the ballroom. What occurred in this case, however, went well beyond the bounds of what any person should have to tolerate.”); See Gallagher, 139 F.3d at 338, 342 (“Today, while gender relations in the workplace are rapidly evolving, and views of what is appropriate behavior are diverse and shifting, a jury made up of a cross-section of our heterogeneous communities provides the appropriate institution for deciding whether borderline situations should be characterized as sexual harassment and retaliation.”). For an explanation for why juries are not well situated to make sexual harassment determinations and often reflect community prejudices in their assessments of workplace hostility see Shira A. Scheindlin & John Elofson, Judges, Juries, and Sexual Harassment, 17 Yale L. & Pol’y Rev. 813 (1998).
Courts have more or less divided sexual harassment claims into two categories—quid pro quo harassment and harassment that creates a “hostile work environment.”9
Meritor, 477 U.S. at 65.
See, e.g., Barnes v. Costle, 561 F.2d 983 (D.C. Cir. 1977); Tomkins v. Pub. Serv. Elec. & Gas Co., 568 F.2d 1044 (3d Cir. 1977); see also EEOC, Policy Guidance on Employer Liability Under Title VII for Sexual Favoritism, No. 915.048 (Jan. 12, 1990), https://www.eeoc.gov/policy/docs/sexualfavor.html[https://perma.cc/R8QU-Z5P7].
Hostile work environment claims have proven to be the more difficult category. These claims involve harassment that result in no clear adverse employment action other than the impact of the harassment on the employee and her or his work experience. In order to make out a claim for a hostile work environment, a complainant must prove that the conduct was severe or pervasive.11
See generally, Pa. State Police v. Suders, 542 U.S. 129, 133 (2004) (to be actionable under Title VII, plaintiffs must show “harassing behavior ‘sufficiently severe or pervasive to alter the conditions of [their] employment’”) (quoting Meritor, 477 U.S. at 67).
See Henson v. City of Dundee, 682 F.2d 891, 903–05 (11th Cir. 1982) (identifying elements of a sexual harassment claim).
See Scheindlin & Elofson, supra note 9, at 815 (discussing allocation of sexual harassment determinations between judges and juries).
The first step is determining whether the harassment occurred because of the plaintiffs’ sex.14
Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998) (“Title VII does not prohibit all verbal or physical harassment in the workplace; it is directed only at ‘discriminat[ion] because of sex.’”).
Id. (“[H]arassing conduct need not be motivated by sexual desire to support an inference of discrimination on the basis of sex.”).
See Williams v. General Motors Corp., 187 F.3d 553, 572 (6th Cir. 1999) (Ryan, J., dissenting) (“The majority’s artificial construct-that non-sexual harassment of a female in the workplace can give rise to Title VII sex discrimination liability if it evinces ‘anti-female animus’ is a radical rewriting of settled Title VII sex discrimination jurisprudence.”); see also Faragher vs. City of Boca Raton, 524 U.S. 775, 788 (1998) (“Title VII does not prohibit ‘genuine but innocuous differences in the ways men and women routinely interact with members of the same sex and of the opposite sex.’ A recurring point in [our] opinions is that ‘simple teasing,’ offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the terms and conditions of employment. These standards for judging hostility are sufficiently demanding to ensure the Title VII does not become a ‘general civility code.’”).
Vicki Schultz, Reconceptualizing Sexual Harassment, Again, 128 Yale L.J. Forum 22 (2018).
The second requirement—that the harassment is sufficiently severe and pervasive—is a threshold-setting standard for the behavior in question. Courts have looked at the “frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.”18
Harris v. Forklift Sys., Inc., 510 U.S. 17, 22–23 (1993).
Id. at 21.
The Supreme Court has distinguished between a workplace that is “permeated with ‘discriminatory’ intimidation, ridicule, and insult” and one where there is the “mere utterance” of an offense. Harris, 510 U.S. 17 at 21 (quoting Meritor, 477 U.S. at 65, 67); see also Young v. Phila. Police Dep’t, 94 F. Supp. 3d 683, 700 (E.D. Pa. 2015), aff’d 651 F. App’x 90 (3d Cir. 2016).
Faragher, 524 U.S. at 788.
Id. (quoting Oncale v. Sundower Offshore Servs., Inc., 523 U.S. 75, 75, 81 (1998)).
The third element of the claim is whether the behavior created an abusive work environment, an assessment involving an objective and subjective determination. In Harris v. Forklift Sys., Inc.,23
510 U.S. 17 (1993).
Id. at 22.
Id. (“So long as the environment would reasonably be perceived, and is perceived, as hostile or abusive there is no need for it also to be psychologically injurious.”).
Id. at 21–22 (“If the victim does not subjectively perceive the environmental to be abusive, the conduct has not actually altered the conditions of the victim’s employment, and there is no Title VII violation.” However, “Title VII comes into play before the harassing conduct leads to a nervous breakdown. A discriminatorily abusive work environment, even one that does not seriously affect employees’ psychological well-being, can and often will detract from employees’ job performance, discourage employees from remaining on the job, or keep them from advancing their careers.”).
Both the subjective and objective determination of what constitutes an abusive work environment have significantly limited the anti-discriminatory impact of Title VII, circumscribing the universe of abusive treatment that the statute deters. The objective standard, which requires courts to determine how a reasonable person would receive the harassment, has, unsurprisingly, led to complexities around the vantage point of the “reasonable person.” Some courts experimented with adding specific attributes to the reasonable person, asking whether a reasonable African American woman would find the harassment offensive, or whether a reasonable person in plaintiff’s position would find the behavior offensive.27
Compare Watkins v. Bowden, 105 F. 3d 1344, 1356 (11th Cir. 1997) (upholding reasonable person jury instruction as opposed to “reasonable African American or women” jury instruction) with West v. Phila. Elec. Co. 45 F.3d 744, 753 (3d Cir. 1995) (where the objective standard was reviewed as “reasonable person of the same protected class in that position.”).
523 U.S. 75 (1998).
Id. at 81–82.
Id.; see also E.E.O.C. v. Boh Bros. Constr. Co., 731 F.3d 444, 460 (5th Cir. 2013), (citing Oncale, 523 U.S. at 80, 118 (1998) (“We view the alleged harassment with ‘[c]ommon sense, and an appropriate sensitivity to social context’ to determine whether it constitutes ‘conduct which a reasonable person in the plaintiff’s position would find severely hostile.’”).
For example, there is some indication in psychological research that juries are resistant or unable to apply reasonable person standards from particular perspectives in discrimination cases. Katie R. Eyer, That’s Not Discrimination: American Beliefs and the Limits of Anti-Discrimination Law, 96 Minn. L. Rev. 1275, 1332–33 (2011).
The subjective test, which essentially asks whether the conduct was unwelcome, is a complicity test of whether or not the plaintiff welcomed the behavior.32
See Meritor Sav. Bank v. Vinson, 477 U.S. 57, 69 (1986) (for conduct to constitute sexual harassment, it must be unwelcome to the victim).
See Frensley v. N. Miss. Med. Ctr., Inc., 440 F. App’x 383, 386 (5th Cir. 2011); Burnes v. McGregor Electr. Indus., Inc., 989 F.2d 959, 962 (8th Cir. 1993); Henson v. City of Dundee, 682 F.2d 897, 903 (11th Cir. 1982).
See, e.g., Lapka v. Chertoff, 517 F.3d 974, 982 (7th Cir. 2008) (“It goes without saying that forcible rape is ‘unwelcome physical conduct of a sexual nature.’”) (citing Little v. Windermere Relocation, Inc., 301 F.3d 958, 966 (9th Cir. 2002)).
Swentek v. USAIR, Inc., 830 F.2d 552, 557 (4th Cir. 1987) (Similarly, a plaintiff’s participation in foul language or sexual innuendo in a consensual setting outside the workplace “does not waive her legal protections against unwelcome harassment.”); E.E.O.C. v. Wal-Mart Stores, Inc., Nos. 97-02229, 97-02252, 1999 WL 1032963 (10th Cir. 1999) (Evidence that a plaintiff had consensual sexual relationships with other co-workers outside of work “is not relevant to [plaintiff]’s claims of harassment at work.”); see also Wilson v. City of Des Moines, 442 F.3d 637 (8th Cir. 2006) (evidence of female employee’s sexual behavior and comments in the workplace was “highly probative of issue of whether the alleged harassment was unwelcomed.”); Excel Corp. v. Bosley, 165 F.3d 635, 641 (8th Cir. 1999) (evidence of alleged sexual relations between employee and ex-husband outside the workplace during period when harassment occurred should be excluded).
The final question is whether employer liability is triggered or whether the employer knew or should have known the harassment occurred. For claims related to a supervisor, the employer is vicariously liable but may utilize an affirmative defense. The employer may avoid liability by demonstrating that (1) the employer exercised reasonable care to prevent and correct sexually harassing behavior, and (2) the employee unreasonably failed to take advantage of this protection.36
See Burlington Indus. Inc. v. Ellerth, 524 U.S. 742, 765 (1998); see also Faragher vs. City of Boca Raton, 524 U.S. 775, 788 (1998).
EEOC, Harassment; Employer Liability for Harassment, https://www.eeoc.gov/laws/types/harassment.cfm[https://perma.cc/A9RD-84AY].
Id.
Overall, this complex test has created barriers to claimants39
Sean Captain, Workers Win Only 1% of Federal Civil Rights Lawsuits at Trial, Fast Company, (July 31, 2017), http://www.fastcompany.com/40440310/employees-win-very-few-civil-rights-lawsuits[https://perma.cc/4J5A-U5VZ](finding that, of the cases filed in court that are not settled or voluntarily dismissed, less than 1 percent result in a favorable outcome); Eyer, supra note 32 at 1299 (exploring the reasons for the low success rates of discrimination lawsuits).
See generally Sandra F. Sperino & Suja A. Thomas, Unequal: How America’s Courts Undermine Discrimination Law (Oxford University Press, 2017); Scheindlin & Elofson, supra note 9; U.S. Senate Health, Education, Labor, and Pensions Committee, 115th Cong., So I Tolerated It—How Work Places Are Responding to Harassment and the Clear Need for Federal Action: Minority Staff Report (December 2018) [henceforth Minority Staff Report] [https://www.help.senate.gov/imo/media/doc/Senator%20Murray%20Harassment%20Report%20Final.pdf].
Scheindlin & Elofson, supra note 9; U.S. Senate Health, Education, Labor, and Pensions Committee, Minority Staff Report, supra note 41 at 31–33.
Scheindlin & Elofson, supra note 9 at 834–37.
Id.
Theresa M. Beiner, Let the Jury Decide: The Gap between What Judges and Reasonable People Believe Is Sexually Harassing, 75 S. Cal. L. Rev. 791, 809–17 (May 2002).
33.3 percent of Supreme Court justices are women, 36.8 percent of Circuit Court of Appeals judges are women, and 34 percent of Federal District Court judges are women. Am. Bar Ass’n, A Current Glance at Women in the Law, at 5 (Jan. 2018), https://www.americanbar.org/content/dam/aba/administrative/women/a-current-glance-at-women-in-the-law-jan-2018.pdf[https://perma.cc/2KHX-XPAC].
Both perspectives reflect a similar concern that the legal framework developed by the courts impedes the policy goals of Title VII. Without a path towards the social reform Title VII seeks, sexual harassment determinations in our courts are bound to be vague and regressive.46
Researchers have concluded that features of American culture create reluctance by any fact-finder (judge or jury) to attribute workplace wrongs to status discrimination. Eyer, supra note 32, at 1299.
Scheindlin and Elofson, supra note 9, at 834.
EEOC, Time Limits for Filing a Charge, https://www.eeoc.gov/employees/timeliness.cfm[https://perma.cc/CHE6-6D7Q].
EEOC, What You Can Expect After You File A Charge, https://www.eeoc.gov/employees/process.cfm[https://perma.cc/LWA9-N225].
EEOC, All Charges Alleging Harassment (Charges Filed with the EEOC) FY 2010-FY2018, https://www.eeoc.gov/eeoc/statistics/enforcement/all_harassment.cfm[https://perma.cc/N535-9WWF].
The result of these administrative process hurdles and our legal determination of harassment is that few instances of gender-motivated abusive workplace behavior are held to account under Title VII.51
U.S. Senate Health, Education, Labor, and Pensions Committee, Minority Staff Report, supra note 41, at 10–15 (discussing EEOC charge data and lack of reliable data on sexual harassment charge success).
Christine O. Merriman and Cora G. Yang, Employer Liability for Coworker Sexual Harassment Under Title VII, 13 N.Y.U. Rev. L. & Soc. Change 83, 84 note 6 (1985) (citing an unpublished 1979 Working Women’s Institute Study (WWI)).
II. Reconsidering the U.S. Approach
TOPHalf a century later, Title VII’s original transformative goals appear to have been, at best, curtailed and, at worst, rendered ineffectual, by a complaint-dependent, liability-focused process, saddled with under-resourced administrative hurdles and courts that have narrowed the statute’s potential. Our unwillingness to address the misogyny and sexism that underpins harassment—maintaining instead a focus on its individual and inter-personal nature—has undermined Title VII’s impact on women in employment, undercutting its original aim to “liberate the workplace from the demeaning influence of discrimination, and thereby to implement the goals of dignity and economic equality in employment.”53
Gallagher v. Delaney, 139 F.3d 338, 342 (2d Cir. 1998).
A return to the goals of Title VII and the intention of Congress to “liberate the workplace” from gender inequality requires a more forward-looking approach than the one we have employed thus far. Like the Civil Rights Act of 1964, which sought to end segregation in schools, Title VII sought to fundamentally alter the workplace, a task its implementation has not achieved.54
Civil Rights Act of 1964, Pub. L. 88-352, 78 Stat. 241 (1964).
The Constitutional Court in South Africa provides a good example of a transformative approach to discrimination claims. See Catherine Albertyn, Substantive Equality and Transformation in South Africa, 23 S. Afr. J. on Hum. Rts. 253 (2007).
Id.
By this measure, determinations ungrounded in policy goals or reliance on dominant cultural norms and public opinion is misguided. A legal assessment of sexual harassment that seeks transformation would not aim to reflect social norms but instead would pursue an assessment of harassment that advances women’s workplace equality and recognizes the barriers to that equality. In other words, our laws on sexual harassment and their implementation should move us forward rather than merely reflect our discriminatory surroundings.
A. Sexual Harassment and the Structure of the Workplace
TOPAs discussed, our legal conception of sexual harassment focuses primarily on ensuring those with authority in the workplace do not use it to elicit sexual services, favors, and interactions, and that extreme sexually degrading and/or intrusive behavior is punished.57
Vicki Schultz, Open Statement on Sexual Harassment from Employment Discrimination Law Scholars, 71 Stan. L. Rev. Online 17 (2018), https://www.stanfordlawreview.org/online/open-statement-on-sexual-harassment-from-employment-discrimination-law-scholars/[https://perma.cc/6CAK-UW65].
The last decade of research has painted an increasingly clear picture of sexual harassment—its nature, benefit and impact—which differs from the one reflected in our jurisprudence. Research indicates that sexual harassment is often not an isolated event nor one disconnected from other features of a workplace, but a tactic that defines certain workplaces and is a critical component of them. Sexual harassment is not merely the experience of a few unlucky women but a practice that advances, entrenches, and preserves workplace inequalities, discouraging women from pursuing higher-level positions or even entering certain industries. This more complex understanding of harassment puts into question the judicial approach of requiring “a showing of tremendous harm done to a flawless plaintiff.”58
See Bernstein, supra note 6, at 1271.
Studies have identified various predictors of harassment, including particular workplace practices and industries prone to high levels of harassment. Male-dominated workplaces (e.g., construction),59
Kim Parker, Women in Majority-Male Workplaces Report Higher Rates of Gender Discrimination, Pew Research Center (Mar. 7, 2018), http://www.pewresearch.org/fact-tank/2018/03/07/women-in-majority-male-workplaces-report-higher-rates-of-gender-discrimination/[https://perma.cc/47DZ-6TMJ].
Jocelyn Frye, Not Just the Rich and Famous: The Pervasiveness of Sexual Harassment across Industries Affects All Workers, Ctr. for Am. Progress (Nov. 20, 2017), https://www.americanprogress.org/issues/women/news/2017/11/20/443139/not-just-rich-famous/[https://perma.cc/WF4U-H6AY].
Id.
Elyse Shaw, Ariane Hegewisch & Cynthia Hess, Sexual Harassment & Assault at Work: Understanding the Costs, B376 IWPR 1–12 (Oct. 2018), https://iwpr.org/wp-content/uploads/2018/10/IWPR-sexual-harassment-brief_FINAL.pdf[https://perma.cc/X58H-9CWT].
Male-dominated workplaces have consistently been found to have higher rates of harassment of female workers than gender-balanced workplaces.63
See Parker, supra note 60.
Women’s Initiative, Women Disproportionately Report Sexual Harassment in Male-Dominated Industries, Ctr. for Am. Progress (Aug. 6, 2018), https://www.americanprogress.org/issues/women/news/2018/08/06/454376/gender-matters/[https://perma.cc/JR4J-AQD2].
Heather McLaughlin, Christopher Uggen & Amy Blackstone, Sexual Harassment, Workplace Authority, and the Paradox of Power, 77(4) American Sociological Rev. 625, 634 (2012), http://journals.sagepub.com/doi/pdf/10.1177/0003122412451728[https://perma.cc/MWE7-WCCN].
Women in female-dominated workplaces where women are in low-wage positions with high levels of turnover, such as retail and elder or child care, also report high levels of sexual harassment. EEOC charge data, again, revealed that the largest number of claims were filed in the accommodation and food services industry followed by retail trade. Both industries are dominated by women and pay low-wages at high turnover rates.66
See Frye, supra note 61.
See Shaw et al., supra note 63, at 3.
The infrastructure of the work environment has also been found to impact the prevalence of sexual harassment. For example, an Institute for Women’s Policy Research study identified several work-related features associated with increased risk of sexual harassment and assault in the workplace, including: compensation mechanisms that relied on tips; work environments in which workers labored in isolation; employment of workers with irregular immigration status (or where their status was dependent on their jobs); and work settings with employees with significant power differentials.68
Id. at 4. The last example has been highly publicized in this past year through articles by women harassed in the entertainment industry, as well as law clerks and in academia, and, in general all professions that instill certain individuals with high levels of unchecked authority. See, e.g., Nancy Gertner, Sexual Harassment and the Bench, 71 Stan. L. Rev. Online 17 (2018) https://review.law.stanford.edu/wp-content/uploads/sites/3/2018/06/71-Stan.-L.-Rev.-Online-Gertner-1.pdf[https://perma.cc/TY5Z-YKAS];see also Katie Benner, Women in Start-Up World Speak Up About Harassment, N.Y. Times, July 4, 2017, https://www.nytimes.com/2017/07/04/insider/technology-sexual-harassment.html[https://perma.cc/K7AQ-BSQK];Pamela Hutchinson, #MeToo and Hollywood: What’s Changed in the Industry a Year On? The Guardian, Oct. 8, 2018, https://www.theguardian.com/world/2018/oct/08/metoo-one-year-on-hollywood-reaction[https://perma.cc/A5YY-AAQT].
Other elements of the workplace—e.g., lines of management, supervisory discretion, mechanisms for employee well-being and retention—can all impact the prevalence of sexual harassment.69
Int’l Labor Org, Conditions of Work and Equality Dept. [ILO], Final Report, at ¶62, 105, 110, Meeting of Experts on Violence against Women and Men in the World of Work, MEVWM/2016/7 (Geneva, 3–6 October 2016), http://www.ilo.org/wcmsp5/groups/public/---dgreports/---gender/documents/meetingdocument/wcms_546303.pdf[https://perma.cc/9QGE-BYVH].
Id. at ¶12, 13, 101; see also Int’l Labour Office, Ending Violence and Harassment Against Women and Men in the World of Work, ILC.107/V/1 29, 70 (2018), https://www.ilo.org/wcmsp5/groups/public/---ed_norm/---relconf/documents/meetingdocument/wcms_553577.pdf[https://perma.cc/B38L-VA6J].
Id. at ¶12, 101.
Id.
Many of these factors, if not all, are features of a workplace within the employer’s design and control. Who employers hire, how they treat their employees, how they expose them to customers, what forms of safety mechanisms are in place, and employee job security all appear to have some impact on the prevalence of sexual harassment in the workplace and are all decisions employers make in designing and maintaining a workplace. While an employer may not have absolute control over whether harassment occurs, the employer is clearly in a position to significantly reduce the opportunity, motivation, and reward systems that enable and promote it.73
Ann C. Hodges, Strategies for Combating Sexual Harassment: The Role of Labor Unions, 15 Tex. J. Women & L. 183 (2006).
Finally, the negative impact of harassment, both on the intended victims and the workplace more generally, is clear. Studies have identified a variety of negative consequences on the health and well-being of workers, including increased stress for victims (which can lead to a variety of physical ailments), inability of victims to focus on doing their tasks correctly and safely, inability of co-workers and managers to effectively respond to or deal with sexual harassment, intimidation that causes victims to be reluctant to raise legitimate safety issues for fear of being ridiculed, and workplace violence.74
See, e.g., ILO, Final Report, supra note 70, at ¶49; Shaw et al., supra note 63, at 4–6; see also Chelsea R. Willness, Piers Steel & Kibeom Lee, A Meta-Analysis of the Antecedents and Consequences of Workplace Sexual Harassment, 60 Personnel Psychology 127 (2007); Morton Nielson, et al., Prospective Relationships between Workplace Sexual Harassment and Psychological Distress, 62(3) Occup. Med. (Lond) 226 (Mar. 2012).
B. Redefining Sexual Harassment
TOPWhen placed in the context of this research, our legal definition of and policy approach to harassment appears badly in need of updating. While research has made it evident that harassment is an institutional and societal problem, Title VII’s implementation continues to focus on isolated inter-personal issues among individuals, such as badly worded jokes and inappropriate sexual pursuits of aberrant actors.75
Lawton, supra note 2.
Id. at 820–21.
Vicki Schultz and others77
See Schultz, Reconceptualizing Sexual Harassment, supra note 18.
Id. at 26.
Id. at 27.
See Catharine A. MacKinnon, Sexual Harassment of Working Women 27–28 & n. 13 (1979).
Under this framework, sexual harassment is a tool of male workers to maintain their status in the workplace and limit economic advancement and opportunities for women (and men who do not meet accepted standards of masculinity).81
McLaughlin et al., supra note 66 (explaining that sexual harassment is used to counterbalance women in positions of power and might be motivated more by desire for control and domination than sexual desire).
Ryan K. Jacobson and Asia A. Eaton, How Organizational Policies Influenced Bystander Likelihood of Reporting Moderate and Severe Harassment at Work, 30:1 Employ. Response Rights J. 37 (2018) (Participants in zero-tolerance policy condition were more likely to intend to formally report the harassment to their organization).
Brenda L. Russell and Kristin Y. Trigg, Tolerance of Sexual Harassment: An Examination of Gender Differences, Ambivalent Sexism, Social Dominance, and Gender Roles, 50(7–8) Sex Roles 565 (2004) (explaining that ambivalence and hostility toward women are much greater predictors of tolerance of sexual harassment than is gender alone).
III. International and Comparative Approaches
TOPThe ILO standard setting process, “Ending Violence and Harassment Against Women and Men in the World of Work,” began at its 325th Session in November of 2015 and provides some insight into alternative ways to address sexual harassment in the workplace.84
ILO, Ending Violence and Harassment Against Women and Men in the World of Work, Report [henceforth Ending Violence and Harassment] V(1), ILC. 107/V/1, 1–31, 45–59, 77–83 May 12, 2017), https://www.ilo.org/wcmsp5/groups/public/---ed_norm/---relconf/documents/meetingdocument/wcms_553577.pdf[https://perma.cc/BW68-KCRF].
Id. at 33–44, 63–75.
As captured in the ILO’s report, the international human rights legal system, as well as some of our peer countries, address sexual harassment within the larger context of workplace rights and standard violations. Sexual harassment is treated as a form of violence and abuse that burdens the workplace.86
ILO, Ending Violence and Harassment, supra note 85, at 6, 9, 14–16, 34, 41, 76, 97.
The Universal Declaration of Human Rights (UDHR), the foundation of the human rights system, begins with an assertion of the “inherent dignity and of the equal and inalienable rights of all members of the human family.” G.A. Res. 217 (III) A, Pmbl., Universal Declaration of Human Rights (Dec. 10, 1948). Similarly, the International Covenant on Civil and Political Rights (1966), one of the system’s first and still most widely recognized treaties, asserts that basic human rights “derive from the inherent dignity of the human person” and that the animating principle of the covenant is the “recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family [as] the foundation of freedom, justice and peace in the world.” G.A. Res. 2200 (XXI) A, International Covenant on Civil and Political Rights (Dec. 16, 1966).
Christopher McCrudden, Human Dignity and Judicial Interpretation of Human Rights. 19(4) Eur. J. Int’l L. 655, 689–92 (2008).
Susie Cowen, Can Dignity Guide South Africa’s Equality Jurisprudence, 17 S. Afr. J. on Hum. Rts. 34, 48 (2001).
McCrudden, supra note 89; Inter-American Court of Human Rights, Advisory Opinion OC-4/84 of 19 Jan. 1986 (Proposed Amendments to the Naturalization Provision of the Constitution of Costa Rica requested by the Government of Costa Rica), at ¶¶55–56 (“notion of equality springs directly from the oneness of the human family and is linked to the essential dignity of the individual.”).
Various international human rights treaties explicitly protect the right to dignity and equality in the workplace. The Universal Declaration of Human Rights (UDHR) recognizes that “everyone who works has the right to just and favorable remuneration ensuring for himself and his family an existence worthy of human dignity.”91
G.A. Res. 217 (III), supra note 88, art. 23.
ILO, ILO Multilateral Framework on Labour Migration: Non-Binding Principles and Guidelines for a Rights-Based Approach to Labour Migration, at 9 (2006).
Though the text of CEDAW is silent on sexual harassment, in 1992, the CEDAW Committee issued a comment on gender-based violence, explaining that the state duty to eradicate all forms of gender-based violence, including sexual harassment and domestic violence, was implied under the treaty obligations to eliminate all forms of gender discrimination. UN Comm. on the Elimination of Discrimination Against Women (CEDAW) on its Eleventh Session, G. Rec. No. 19 (1992).
G.A. Res. 2200 (XXI) A supra note 88, International Covenant on Economic, Social and Cultural Rights, International Covenant on Civil and Political Rights and Optional Protocol to the International Covenant on Civil and Political Rights, (Dec. 16, 1966) at 2–3, ¶7, (“rights of everyone to the enjoyment of just and favourable conditions of work” with regard to fair wages and “equal remuneration for work of equal value without distinction of any kind, in particular women being guaranteed conditions of work not inferior to those enjoyed by men, with equal pay for equal work”).
McCrudden, supra note 89, at 689–92; The importance of providing economic justice was understood as a crucial part of this international movement to secure peace and stability. Article 23 of the League of Nations Covenant included the “fair and humane conditions of labour for men, women, and children” and envisioned the establishment of international organizations to realize this objective. This goal was the focus of the International Labour Organization (ILO) established in 1919 in Paris to promote fair and humane conditions for workers through legal mechanisms and monitoring procedures.
Against this background, a state duty to exercise due diligence in preventing and protecting individuals from sexual harassment violations in the workplace has emerged.96
CEDAW, supra note 94; Jessica Lenahan (Gonzales) et al. v. United States, Merits Report, Inter-Am. Commission on H.R., No.80/11 (July 21, 2011) (explaining that states must exercise due diligence to protect women from all forms of gender-based violence).
For instance, Article 26(1) and (2) of the Council of Europe European Social Charter (Revised) of 1996 requires states to adopt rules on violence and harassment, which include requiring state parties to work with employers and workers to promote awareness, provide information and prevent both sexual and moral harassment in the workplace (although a third of the states who have ratified do not consider one or both of these paragraphs of the Charter to be binding); the 2011 Council of Europe Convention (Istanbul Convention) obligates ratifying members to “prohibit, prevent, prosecute and eliminate violence against women, including sexual harassment, and all forms of domestic violence, including economic violence,” ILO, Ending Violence and Harassment, supra note 85, at 41, §3.5, ¶174 and ¶175.
Id. at 56, ¶221, p. 65, §5.3, ¶249 and ¶251. See also McAleenon v. Autism Initiatives NI [2013] NIIT 815/12 [¶65] (N. Ir.) (explaining the “danger of an employer not being proactive in circumstances where members of staff are known to engage in physical contact”); Grobler v. Naspers 2004(4) SA 220(C) (South Africa Labor Court) (finding the employer liable where harassment was a foreseeable risk); Cour de Cassation [Cass.] [supreme court for judicial matters] soc., Jan. 30, 2019, Bull. Civ. V, No. 17-28905 (Fr.) (finding obligation of the employer to take effective measures to protect their employees when it is in a situation to exert de facto authority on non-salaried persons who are responsible for the sexist harassing behavior.)
EEOC, Enforcement Guide on Vicarious Employer Liability for Unlawful Harassment by Supervisors, (April 6, 2010), https://www.eeoc.gov/policy/docs/harassment.html[https://perma.cc/XJ4N-6HDC].See also Hurley v. Atlantic City Police Dept., 174 F.3d 95, 118 (3d Cir. 1999) (“Ellerth and Faragher do not, as the defendants seem to assume, focus mechanically on the formal existence of a sexual harassment policy, allowing an absolute defense to a hostile work environment claim whenever the employer can point to an anti-harassment policy of some sort;” defendant failed to prove affirmative defense where it issued written policies without enforcing them, painted over offensive graffiti every few months only to see it go up again in minutes, and failed to investigate sexual harassment as it investigated and punished other forms of misconduct.); see also Dees v. Johnson Controls World Services, Inc., 168 F.3d 417, 422 (11th Cir. 1999) (employer can be held liable despite its immediate and appropriate corrective action in response to harassment complaint if it had knowledge of the harassment prior to the complaint and took no corrective action).
ILO, Ending Violence and Harassment, supra note 85, at 63–64, §35.1, ¶¶244–47.
The European Union has issued directives on sexual harassment that frame it as a discriminatory violation of dignity and requires state members and employers to enact policies aimed at prevention.101
EP Committee on Women’s Rights and Gender Equality (FEMM), Article 31 of EU Resolution on Measures to Prevent and Combat Mobbing and Sexual Harassment at Workplace, in Public Spaces, and Political Life in the EU (2018) calls on Member States and social partners to ensure that employers organize “mandatory training on sexual harassment and bullying”; Article 33 “stresses that companies should have a zero tolerance approach to sexual harassment. Resolution on Measures to Prevent and Combat Mobbing and Sexual Harassment at Workplace, in Public Spaces, and Political Life in the EU, Eur. Parl. Doc. P8_TA-PROV(2018)0331; see also Article 26 of the European Directive on Sexual Harassment “Prevention of discrimination[:] Member States shall encourage, in accordance with national law, collective agreements or practice, employers and those responsible for access to vocational training to take effective measures to prevent all forms of discrimination on grounds of sex, in particular harassment and sexual harassment in the workplace. Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the Implementation of the Principle of Equal Opportunities and Equal Treatment of Men and Women in Matters of Employment and Occupation (recast), 2006 O.J. (L 204) 3, https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32006L0054&from=EN[https://perma.cc/5S26-2Q5S];Gabrielle S. Friedman & James Q. Whitman, The European Transformation of Harassment Law: Discrimination versus Dignity, 9 Colum. J. Eur. L. 241 (2002).
Part I, Section 2 of the Health & Safety at Work Act 1974 “It shall be the duty of every employer to ensure, so far as is reasonably practicable, the health safety and welfare at work of his employees,” Health and Safety at Work etc. Act 1974, 1, §2, (Eng.).
The Management of Health and Safety at Work Regulations 1999 were introduced to reinforce the Health and Safety at Work Act 1974. Regulation 3 states that employers “shall make a suitable and sufficient assessment of the risks to the health and safety of his employees to which they are exposed whilst they are at work,” The Management of Health and Safety at Work Regulations 1999, SI 1999/3242, art. 3, ¶1 (Eng.).
Id. at sec. 7, ¶1–5., generally a defense to an alleged breach of sexual discrimination legislation by employers.
Other countries have focused more broadly on systemic work environment management which includes taking measures that reduce opportunities for sexual harassment and other forms of “bullying.” The Swedish Work Environment Authority (SWEA) conducts inspections that are aimed at “strengthening the workplace’s own ability to prevent risks.”105
Swedish Work Env’t Auth., Inspections, Investigations and Checks, https://www.av.se/en/work-environment-work-and-inspections/inspections-investigations-and-checks/inspection/[https://perma.cc/PB9J-T4TH].
Id.
Ordinance on Violence and Menaces in the Working Environment (Swedish Work Environment Authority’s Statute Book [AFS] 1993:17) (Swed.).
Id.
Id.
In Finland, the Occupational Safety and Health Administration (OSH) sends out a survey to all employees before periodic inspections which include questions on harassment and workplace bullying and then target those issues.110
Psychosocial Workload, Occupational Safety and Health Administration Finland, 2 (2017) Tyosuoujelu.fi Website of the Occupational Safety and Health Administration in Finland, https://www.tyosuojelu.fi/web/en/about-us/publications[https://perma.cc/J2WT-4YXR].
Id.
Malgorzata Milczarek, Workplace Violence and Harassment: A European Picture, Eur. Agency for Health and Safety at Work, EU-OSHA, 29 (2010), https://osha.europa.eu/en/tools-and-publications/publications/reports/violence-harassment-TERO09010ENC[https://perma.cc/TK3U-9LE7].
Riitta Sedig, Hidden Issue Brought to Daylight, Labor & Employment Law Strategic Global Topics: Sexual Harassment Law in the Workplace Around the World, 1 (2018).
Canadian provinces have incorporated violence and sexual harassment in their occupational health and safety laws as well.114
For example, New Brunswick has amended the General Regulation—Occupational Health and Safety Act NB Reg 91-191 [General Regulation] Amendment, (2019) (“OHSA”) in order to protect employees from violence and harassment (other jurisdictions in Canada have already enacted this kind of legislation).
Ontario Women’s Justice Network, Workplace Violence and Harassment – Occupational Health and Safety Act, OWJN, (August 1, 2016), owjn.org/2016/08/workplace-violence-and-harassment-occupational-health-and-safety-act/[https://perma.cc/3474-7553].
HR Proactive Inc., An Employer’s Guide to Conducting Harassment Investigations, https://https://harassmentinvestigation.ca/employer_guide_harass_invest.pdf[https://perma.cc/Z9KS-G2CN];Crisis Prevention Institute, Nonviolent Crisis Prevention, CPI, http://educate.crisisprevention.com/OntarioBill168NowKnownAsSection32OntarioOHSA.html?code=ITG081PSRW&src=Pay-Per-Click[https://perma.cc/6EHC-GCRL].
Being Harassed at Work? Information for Workers, Ontario Ministry of Labor (May 2017), https://www.labour.gov.on.ca/english/hs/pubs/fs_wvh_atwork.php[https://perma.cc/645H-8NCH].
IV. Dignity and Equality in the American Context
TOPSome U.S. scholars have viewed the dignity-based approach that places sexual harassment in the context of other workplace abuses with skepticism. In particular, scholars engaged with women’s equality have been concerned that it lacks a focus on the gendered elements of sexual harassment to its detriment.118
Jessica A. Clarke, Beyond Equality—Against the Universal Turn in Workplace Protections, 86 Ind. L. J. 1219 (Fall 2011); Kathryn Abrams, The New Jurisprudence of Sexual Harassment 83 Cornell L. Rev. 1169 (1998); Friedman and Whitman, supra note 102, at 273.
Abrams, supra note 119, at 1249.
Similarly, U.S. scholars have viewed the focus on dignity, particularly in Europe, as a preoccupation with civility, inappropriate for the American social context and meriting a far lower place on the scale of legal importance than status discrimination.120
Friedman and Whitman, supra note 102, at 264–65.
Friedman & Whitman, supra note 102, at 269–71.
These objections raise a number of questions. The first is whether women have really experienced gains through the separation of sexual harassment from general workplace protections.122
At various points, scholars and commentators have seen the advantages of an approach that conceives of harassment as a dignitary workplace safety and wellbeing issue. Anita Bernstein and Catherine McKinnon have both noted the regulatory and preventative advantages. See MacKinnon, supra note 81, at 159; Bernstein, supra note 6 at 1256–1311.
Alternatively, embracing a dignity-based approach could provide us with a positive vision of the workplace, which we currently lack. Without a positive vision for the workplace, it is difficult for us to determine what it should look like for women, and consequently it is difficult to discern our policy goals for gender equality in the workplace. Jurisdictions that address harmful workplace dynamics and dignitary issues necessarily proceed with an understanding of how employees should relate to one another in the workplace and what workers may expect in terms of standards and norms in their place of employment.123
ILO, Ending Violence and Harassment, supra note 85, at ¶12, 13, 29, 70, 101.
Moreover, we have missed out on the practical and policy-oriented advantages of an approach that prioritizes prevention of workplace practices that promote or facilitate harassing behavior. Systems that focus on prevention avoid complaint dependence, an approach that burdens women and produces irregular and ineffective deterrence.124
See, e.g., Sperino & Thomas, supra note 41, at 177.
Schultz, Reconceptualizing Sexual Harassment, supra note 18, at 30, 59–66.
ILO, Ending Violence and Harassment, supra note 85, at ¶25 and 44.
Arianna Rossi, Ending Violence at the Workplace, World of Work Magazine of ILO (2017) at 37–40.
Finally, and perhaps key, this approach allows us to better understand how harassment works and how to address it. Sexual harassment as a manifestation of gender discrimination is both unique (in the sense that it is rooted in and seeks to preserve gender inequality) and not unique in the sense that workplace harassment can also be rooted in and seek to preserve other forms of inequality (based in race, caste, disabilities, economic status, ideology).128
Workers in poor working conditions, atypical employment (particularly temporary jobs), women entering industries traditionally dominated by men, and self-employed or low-hours workers who are outside the scope of labor law are particularly vulnerable to violence. ILO, Ending Violence and Harassment, supra note 85, at ¶108. See also Article 35 of EU Measures to Prevent and Combat Mobbing and Sexual Harassment at Workplace, in Public Spaces, and Political Life in the EU which “calls on Member States to take measures to ensure equal pay between women and men as a means of promoting gender equality and respect for human dignity, which is fundamental to combating VAW. EU Measures, supra note 102.
Pursuing an approach that considers dignity and equality, as intertwined, does not mean we must abandon prioritizing gender discrimination. A focus on dignity does not mean a failure to focus on equality; dignity provides content to anchor the goals of equality. We can draw from the concept of substantive equality under CEDAW which understands gender discrimination as a barrier that impedes women’s enjoyment of their fundamental rights.129
UN General Assembly, Convention on the Elimination of All Forms of Discrimination Against Women, 18 December 1979, A/RES/34/180, Art. 11, ¶18; G.A. Res. 1325, Convention on the Elimination of Discrimination Against Women (1979); UN Comm. on the Elimination of Discrimination Against Women on its Thirtieth Session, G. Rec. No. 25 (2004).
Id.
For an example of how dignity and equality interact in other jurisdictions, see Cowen, supra note 90, at 34–58.
The balance between general workplace rights and a focus on status discrimination has been described as a targeted universalist approach—an approach which identifies a basic standard and analyzes how groups are being deprived of that standard.132
John A. Powell, Post-Racialism or Targeted Universalism, 86 Denv. U. L. Rev.785, 802–03 (2008).
Id.
See, e.g., Clarke, supra note 119, at 1281–84.
The better conceptual model for addressing sexual harassment in the U.S. is that of transformation, which goes beyond ensuring that more groups are brought into the fold of existing circumstances and benefits. As Catherine Albertyn has explained, in reference to the jurisprudence of the South African Constitutional Court, inclusivity often struggles with fundamental transformation—inclusive approaches resist altering basic structures, seeking instead to preserve the status quo but with a broader base of beneficiaries. An inclusive approach may focus on hiring more women in a particular workplace, whereas a transformative approach may ask what policies and practices were excluding them in the first place (e.g., lack of maternity leave or comprehensive health insurance), whether skills and talents valued rely on gender stereotypes (e.g., approaches to marketing or making sales that reward stereotypical gendered behavior), or whether the women who are hired are being hampered in some way that is encouraging turn over or limiting their advancement. A transformative approach would then ask whether these conditions are necessary features of the work being performed and how they can be altered so as to create a workplace that equally incorporates and supports women. A transformative approach to equality demands an analysis of fundamental social and institutional structures, what they prioritize, who they exclude, and the values they are based on. This approach identifies the why and how with the goal of reconceiving the system so as to alter its present dynamics.135
Albertyn, supra note 56.
The creation of a standard that provides content to human dignity in the workplace along with a re-evaluation of existing inequalities would provide a more robust strategy for addressing sexual harassment. It would require development of a policy goal—a model of the workplace as a healthy, productive, and safe environment that nurtures all worker capacity and discourages and addresses abuses, humiliations, and avoidable burdens.
Such a conception or model for the workplace would give us a better sense of the goals in eradicating harassment as well as a yardstick by which to measure the progress towards ensuring all enjoy and have full access to the workplace and the economic benefits it provides. An approach based in equality and dignity with a positive vision of the workplace would also be responsive to our major jurisprudential challenge—the difficulty courts have had in extracting a norm against which sexual harassment is measured due to significant elements of sexism and misogyny that dominate our culture. Without a marker of what is and is not permissible in the workplace, courts cast about for intuition of what is a bridge too far when it comes to humiliation and objectification of women.
Ultimately, a standard for the workplace would elevate judicial inquiries (and that of juries under judicial guidance) from a realm of arbitrating disputes in personal relationships to one with institutional import. This kind of standard would also engage employers in the work of prevention. To build a better workplace for women, we need to simply build a better workplace—one that, at the outset, understands the social inequality it seeks to correct.
V. A Positive Vision of the Workplace
TOPThe task is now to cultivate a positive vision of the workplace in which to root a legal and policy framework that addresses workplace sexual harassment. To transform the American workplace, a positive vision must express value for the worker generally and for the female worker specifically, addressing both notions of human dignity and equality. With a positive vision of the workplace, our society can define the workplace more clearly, including what conditions of employment workers can expect and the role of the employer in providing them. With this vision, we can better gauge when humiliations, abuses, and other tactics are employed by individuals in the workplace to discriminate against women and gain advantage from gender inequality. We can establish what constitutes discrimination, not by measuring behavior against social norms that may be discriminatory themselves, but by measuring against standards of human dignity and equality. Our assessment of sexual harassment can be grounded in an understanding of its role in exploiting and reinforcing “socially constructed power imbalances”136
Eric Stener Carlson, The ILO’s Innovative Approach to Ending Gender-Based Violence and Harassment: Towards a New International Framework for the World of Work, ABA (2017), https://www.americanbar.org/content/dam/aba/events/labor_law/2017/11/conference/papers/CARLSON-The%20ILOs-Innovative-Approach-to-Ending-Gender-based-Violence-and-Harassment.pdf[https://perma.cc/X5UV-GQYQ].
We are not entirely without a positive vision of the American workplace. For example, some American companies have stepped forward to craft better workplaces for their female employees.137
As of 2017, 14 percent of the US workforce was offered an employer-sponsored paid family leave program. See Trish Stroman et al., Why Paid Family Leave Is Good Business, Boston Consulting Group (February 2017) at 3–4, 17; Microsoft and Uber have eliminated forced arbitration agreements for employees or customers who make sexual harassment claims. See Nick Wingfield and Jessica Silver-Greenberg, Microsoft Moves to End Secrecy in Sexual Harassment Claims, N.Y. Times (Dec. 19, 2017), https://www.nytimes.com/2017/12/19/technology/microsoft-sexual-harassment-arbitration.html[https://perma.cc/2H8P-TCTT];Sarah Ashley O’Brian, Uber Will No longer Force Victims of Sexual Assault into Arbitration, CNN Business (May 15, 2018), https://money.cnn.com/2018/05/15/technology/uber-eliminates-forced-arbitration/index.html[https://perma.cc/85KC-PFHE].
As President Franklin Roosevelt stated when he sent the FLSA bill to Congress on May 24, 1937, “a self-supporting and self-respecting democracy can plead no justification for the existence of child labor, no economic reason for chiseling worker’s wages or stretching worker’ hours conditions that do not meet rudimentary standards of decency should be regarded as contraband and ought not to be allowed to pollute the channels of interstate trade,” See Jonathan Grossman, US Dep’t. of Labor, Fair Labor Standards Act of 1938: Maximum Struggle for a Minimum Wage, (quoting Franklin Roosevelt, Public Papers VI (May 24, 1937) at 209–14).
Gallagher v. Delaney, 139 F.3d 338, 342 (2d Cir. 1998).
The primary federal employment and labor legislation are the Fair Labor Standards Act, 29 U.S.C. §203, that sets a national minimum wage and requires overtime for hours worked over 40 per week for qualifying workplaces; the National Labor Relations Act, 29 U.S.C. §§151–169, that provides protections for workplace organizing and the formation of unions; the Occupations Health and Safety Act, 29 U.S.C. §651, that provides basic standards of health and safety in U.S. workplaces; the Family Medical Leave Act, 29 U.S.C. §2601, which guarantees basic unpaid leave for pregnancy, illness and caretaking; the Agricultural Workers Protection Act (AWPA), 29 U.S.C. §1801, that provides some basic protections to farmworkers in contracting and recruitment, wages, working conditions, and compliance; the Uniformed Services Employment and Reemployment Rights Act (USERRA) 38 U.S.C. §§4301–35 ensures that workers who enter the military for short periods can return to their private sector job without loss of seniority or benefits, and the statutes that prohibit status discrimination such as Title VII, 42 U.S.C. §2000e, the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§621–34, and the Americans with Disabilities Act (ADA), 42 U.S.C. §1801.
For numerous reasons commented on by many—the U.S. individualistic culture, the mobility of our population and workforce, commitment to free market principles, corporate influence and flexible communities—we have never fully developed robust labor and employment legal protections.141
Friedman & Whitman, supra note 102, at 265–70; see also, Katherine V.W. Stone, Revisiting the At-Will Employment Doctrine: Imposed Terms, Implied Terms, and the Normative World of the Workplace, 36 Indus. L. J. 84, 84–86 (2007); see also generally, Clyde W. Summers, Employment at Will in the United States: The Divine Right of Employers, 3:1 U. Pa. J. Lab. & Emp. L. 65 (Fall 2000).
See Jean R. Sternlight, Is the U.S. out on a Limb – Comparing the U.S. Approach to Mandatory Consumer and Arbitration to That of the Rest of the World, 56 U. Miami L. Rev. 831 (2002) (Though widespread in the U.S., mandatory arbitration policies are rarely employed in other countries); see also Carol Daugherty Rasnic, Balancing Respective Rights in the Employment Contract: Contrasting the U.S. “Employment-At-Will” Rule with the Worker Statutory Protections against Dismissal in European Community Countries, 4 J. Int’l L. & Prac. 441, 442 (1995) (Benefits required by European domestic statutes include a guaranteed paid vacation time of four weeks or longer and an average of fourteen to sixteen weeks of paid maternity leave. By contrast in the U.S. vacation time “is a privilege rather than a right” and the Family and Medical Leave Act only mandates twelve weeks of unpaid leave per year for family-related medical needs).
The minimum wage in the U.S. is $7.29 an hour and was last updated in 2009, see U.S. Dep’t of Labor, Minimum Wage, https://www.dol.gov/general/topic/wages/minimumwage[https://perma.cc/SSL9-7M98].In comparison, as of 2013, Australia had the highest minimum wage of $9.54 an hour, followed by Luxembourg at $9.24. See Paul Muggeridge, This Is What the Minimum Wage Looks Like Around the World, World Economic Forum (June 30, 2015), https://www.weforum.org/agenda/2015/06/this-is-what-the-minimum-wage-looks-like-around-the-world./[https://perma.cc/W7SU-WZQR].
Ben Zipperer, The Erosion of the Federal Minimum Wage Has Increased Poverty, Especially for Black and Hispanic Families, Economic Policy Institute (June 13, 2018), https://www.epi.org/publication/the-erosion-of-the-federal-minimum-wage-has-increased-poverty-especially-for-black-and-hispanic-families/[https://perma.cc/RRQ7-4JWH].
For a complete list see U.S. Dep’t of Labor, Exemptions, ELAWS Fair Labor Standards Act Advisor, https://webapps.dol.gov/elaws/whd/flsa/screen75.asp[https://perma.cc/46FL-P8KL].
Pensions at a Glance in 2017: How Does the United States Compare?, Org. for Economic Co-operation and Development (OECD) (Dec. 5, 2017), https://www.oecd.org/unitedstates/PAG2017-USA.pdf[https://perma.cc/NHK3-PLYH].
Stone, supra note 142, at 84.
The report, conducted in cooperation with Llewellyn Consulting, reveals that the countries offering the most generous workplace and welfare benefits overall are Denmark, France and Spain, with Denmark and Belgium in particular offering the best unemployment benefits (pay and eligibility period). See Llewellyn Consulting, Which Countries in Europe Offer Fairest Paid Leave and Unemployment Benefits, Glassdoor at 12 (2016), https://www.glassdoor.com/research/app/uploads/sites/2/2016/02/GD_FairestPaidLeave_Final.pdf[https://perma.cc/LP9K-E2Z5].
Id. at 11.
Even those protections we do grant by virtue of the employer and employee relationship do not extend to all American workers. One in ten workers in the US labor market is in a “contingent and alternative employment arrangement.”150
U.S. Dep’t of Labor, Contingent and Alternative Employment Arrangements, Bureau of Labor Statistics (June 7, 2018), https://www.bls.gov/news.release/conemp.nr0.htm[https://perma.cc/388N-RY6V].
Id.
U.S. Dep’t of Labor, Wage and Hour Division (WHD), https://www.dol.gov/whd/workers/misclassification/[https://perma.cc/4PUZ-347F].
See, e.g., Dynamex Operations West, Inc. v. Superior Court of Los Angeles, 416 P.3d 1, 42 (Cal. 2018), (where the California Supreme Court held that delivery drivers were employees rather than independent contractors and announced a new test for establishing independent contractor status that considers franchise or licensing relationships); see also, Simpkins v. DuPage Housing Authority, 893 F.3d 962 (7th Cir. 2018) (reversing a district court’s grant of summary judgment and holding that the plaintiff was an independent contractor, as opposed to an employee); Thornton v. Mainline Commc’ns. LLC, 157 F. Supp. 3d 844 (E.D. Mo. 2016) (where the district court found that cable repair and installation technicians were misclassified as independent contractors).
Thus, we have primarily left it to the employer to craft a just and functional workplace. Workers are expected to either accept the terms set by the employer or leave. Members of our workforce have few legal rights and employers have few restrictions or obligations to ensure worker well-being. Time and again courts have defended the principle of at-will unregulated employment, resisting contractual obligations and, time and again, any effort to demand workplace security or minimal terms has been struck down.154
See, e.g., Epic Systems Corp. v. Lewis, 138 S. Ct. 1612 (2018) (upholding the validity of employer requirement that employees submit to individual arbitration of wage-and-hour and other work place conditions claims).
See, e.g., Hoffman Plastic Compound v. NLRB, 535 U.S. 137 (2002) (holding that an undocumented worker who was not authorized to legally work in the U.S. was not eligible to receive back pay under the NLRA); for an example of recent acknowledgments by courts that some contractual obligation may exist for temporary foreign laborers see, Jimenez v. GLK Foods LLC, No. 12-CV-00209, Dkt. 50 (E.D. Wis. 2013) (finding contractual obligations for H2-B workers).
These conditions have meant that particularly vulnerable populations, such as our low-wage sector, which is populated by many immigrants with irregular immigration status,156
See Miriam Jordan, 8 Million People are Working Illegally in the U.S. Here’s Why That’s Unlikely to Change, The New York Times (Dec. 11, 2018), https://www.nytimes.com/2018/12/11/us/undocumented-immigrant-workers.html[https://perma.cc/Y33B-LT4H];Lisa Rapaport, U.S. Relies Heavily on Foreign-Born Healthcare Workers, Thompson Reuters (Dec. 4, 2018), https://www.reuters.com/article/us-health-professions-us-noncitizens/u-s-relies-heavily-on-foreign-born-healthcare-workers-idUSKBN1O32FR[https://perma.cc/8V5K-LEJD].
In 2016, research from Oxfam found that one in four low-wage workers in the US did not have a single day of earned sick time, see Oxfam, Millions of Low-Wage Workers in the US Are Struggling to Survive, (June 21, 2016), https://www.oxfamamerica.org/explore/stories/millions-of-low-wage-workers-in-the-us-are-struggling-to-survive/[https://perma.cc/Z9VC-A2L4].
During the last three decades, funding levels for agencies that enforce laws against workplace violations have declined precipitously despite the fact that the labor force has grown. For instance, the number of inspectors enforcing minimum wage and overtime laws declined by 31%, while the labor force increased by 52% between 1980 and 2007. See Annette Bernhardt, et al., Broken Law, Unprotected Workers: Violations of Employment and Labor Laws in America’s Cities, National Employment Law Project at 52 (2009).
In 2017, only 10.7% of wage and salaried workers in the U.S. were members of labor unions, while in 1983, 20.1% of wage and salaried workers were members of labor unions, see, Hanna Fingerhut, More Americans View Long-Term Decline in Union Membership Negatively than Positively, Pew Res. Center (June 5, 2018), http://www.pewresearch.org/fact-tank/2018/06/05/more-americans-view-long-term-decline-in-union-membership-negatively-than-positively/[https://perma.cc/7L6N-2MK5].
Domestic workers are not covered by the NLRA (“the term “employee”. shall not include any individual employed as an agricultural laborer, or in the domestic service of any family or person at his home”“); farmworkers are not covered by the NLRA (“the term “employee” shall not include any individual employed as an agricultural laborer, or in the domestic service of any family or person at his home”“). See 29 U.S.C. §152 (1935). See also U.S. Dep’t of Labor, Handy Reference Guide to the Fair Labor Standards Act, https://www.dol.gov/whd/regs/compliance/hrg.htm#2[https://perma.cc/SM4T-FED9].Farmworkers, with few exceptions, are not covered by the FLSA’s minimum wage and maximum hour requirements. See 29 U.S.C. §213 (1938) at ¶6 (“Minimum wage and maximum hour requirements shall not apply with respect to any employee employed in agriculture").
700,000 Female Farmworkers Say They Stand with Hollywood Actors Against Sexual Assault, Time Magazine (November 10, 2017), http://time.com/5018813/farmworkers-solidarity-hollywood-sexual-assault/[https://perma.cc/98NN-GFKU].
The low value we place on the worker is then compounded by our even lower estimation of the woman worker, a consequence of which is the dearth of women in decision-making positions in most fields.162
Our lack of prioritization of the woman worker is reflected in women’s workplace participation. In most industries, women are absent in management and supervisory positions, longevity in employment and other positions of influence. Women make up 44 percent of the S&P 500 labor force, and 36 percent of first or mid-level officials and managers in those companies, however only 25 percent of executive and senior level officials and managers are women; only 20 percent of board seats are held by women; and only 6 percent of CEOs are women. Women make up 54 percent of the workforce in the financial services industry, but only 29 percent of executive and senior level managers and 2 percent of CEOs are women. In the legal field, 45 percent of associates are women, but only 22 percent of partners are women and 18 percent of equity partners. In the medical field, 37 percent of all physicians and surgeons are women, but only 16 percent of permanent medical school deans are women. Judith Warner and Danielle Corley, The Women’s Leadership Gap: Women’s Leadership by the Numbers, Center for American Progress (May 21, 2017).
The United States and Mexico are the only two OECD countries that do not guarantee at least 14 weeks of paid leave to mothers of infants, see Amy Raub et al., Paid Parental Leave: A Detailed Look at Approaches across OECD Countries, World Policy Analysis Center (2018). Data from the Organization for Economic Cooperation and Development (OECD) shows that among 41 nations, the U.S. is the only country that does not mandate any paid leave for new parents, See Gretchen Livingston, Among 41 Nations, U.S. is the Outlier When it Comes to Paid Parental Leave, Pew Research Center, (September 26, 2016), http://www.pewresearch.org/fact-tank/2016/09/26/u-s-lacks-mandated-paid-parental-leave/[https://perma.cc/HD5K-ABWR].
Drew Desilver, Rising Cost of Child Care May Help Explain Recent Increase in Stay-at-Home Moms, The Pew Research Center, (April 8, 2014), http://www.pewresearch.org/fact-tank/2014/04/08/rising-cost-of-child-care-may-help-explain-increase-in-stay-at-home-moms/[https://perma.cc/4XPZ-GUPR].
Lisa Harker, The Family-Friendly Employer in Europe, in The Work-Family Challenge: Rethinking Employment 49 (Suzan Lewis & Jeremy Lewis eds., 1996).
Id., at 54. Publicly funded or employer sponsored childcare provisions have also become popular in countries like the UK, where the percentage of parents receiving support for childcare from their employer is rising. Dep’t of Education, Childcare and Early Years Survey of Parents in Education, (Dec. 2017) at 11, https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/669857/SFR73_2017_Text.pdf[https://perma.cc/HT66-N4ZP].
Burwell v. Hobby Lobby, 573 U.S. 682 (2014); Wheaton Coll. v. Burwell, 574 U.S. 958 (2014) (holding that the college was not required to follow the mandate under Patient Protection and Affordable Care Act (ACA) and related regulations that it provide its employees and students with health insurance coverage for contraceptive services). See also Religious Exemptions and Accommodations for Coverage of Certain Preventive Services Under the Affordable Care Act, 26 CFR 54, 147, 2590 (2015); Moral Exemptions and Accommodations for Coverage of Certain Preventive Services Under the Affordable Care Act, 26 CFR 54, 147, 2590 (2015).
In October of 2017, the Trump administration issued rules that provide exceptions to the Affordable Care Act’s contraceptive coverage, allowing employers to cite religious or moral beliefs to avoid ACA requirements. Amy Goldstein, Juliet Eilperin and William Wan, Trump Administration Narrows Affordable Care Act’s Contraception Mandate, Wash. Post, (Oct. 6, 2017), https://www.washingtonpost.com/national/health-science/trump-administration-could-narrow-affordable-care-acts-contraception-mandate/2017/10/05/16139400-a9f0-11e7-92d1-58c702d2d975_story.html?noredirect=on&utm_term=.316e32c6961d[https://perma.cc/PYM9-MUJ6].At the same time, women continue to suffer career consequences as a result of childbearing, in part because gender roles are “lagging behind labor force trends,” and because of the way that society views the “bond between mothers and their children.” See Kim Parker, Women More than Men Adjust Their Careers for Family Life, Pew Research Center, (Oct. 1, 2015), http://www.pewresearch.org/fact-tank/2015/10/01/women-more-than-men-adjust-their-careers-for-family-life/[https://perma.cc/N3FT-LV8Q].
Our employer policies to keep compensation private also make it difficult for women to determine whether (or more realistically to what extent) they are being compensated at lower rates than their male peers. As of 2019, the Institute for Women’s Policy Research reported a 20 percent gender wage gap between men and women in the U.S., with female full-time, year-round workers making 80.5 cents for every dollar earned by men.169
Pay Equity Discrimination, Inst. for Women’s Pol’y Res., https://iwpr.org/issue/employment-education-economic-change/pay-equity-discrimination/[https://perma.cc/Q4ZC-XQBC].
Gender Wage Gap, Org. for Econ. Co-operation and Dev., https://data.oecd.org/earnwage/gender-wage-gap[https://perma.cc/PJ4G-MPGF].
Why does this matter? As the research discussed earlier suggests, sexual harassment is likely to thrive in environments where workers are not valued, where women workers are particularly undervalued, and where employers have not provided a functional environment that discourages exploitation of existing societal status-based hierarchies and inequalities. As discussed above, job insecurity, excessive discretion, workforce turn-over, ineffective management practices, inadequate reporting mechanisms, uneven workload distribution, and the absence of messaging around employer values and priorities can all enable environments in which sexual harassment will thrive. #MeToo reports circulated in the media this year were filled with examples of workplaces with no regulation, little worker value, and the absence of working systems of accountability. Law clerks to the judiciary,171
See Vanessa Romo, Federal Judge Kozinski Retires Following Sexual Harassment Allegations, NPR, (Dec. 18, 2017), https://www.npr.org/sections/thetwo-way/2017/12/18/571677955/federal-judge-retires-in-the-wake-of-sexual-harassment-allegations[https://perma.cc/3EZW-BZVJ].
The Farmworker Sexual Violence Technical Assistance Project, Sexual Violence Against Farmworkers: A Guidebook for Legal Providers, https://www.victimrights.org/sites/default/files/Farmworkers%20Legal%20Providers_0.pdf[https://perma.cc/HHT6-SYE4].
See, e.g., Shelley Cobb and Tanya Horeck, Post Weinstein: Gendered Power and Harassment in the Media Industries, 18:3 Feminist Media Studies 489–91 (2018).
Alexandra Witze, Sexual Harassment Is Rife in the Sciences, Finds Landmark US Study, 558 Nature Int’l J. of Sci. 352–53 (June 12, 2018).
We cannot disassociate the general workplace environment from sexual harassment practices, nor should we try. Women work in contexts where harassment persists because that is what is available to them. Workplaces fail to correct this behavior because they do not have to. In this context, it is simply unrealistic to expect that we would target sexual harassment in a culture of workplace neglect and unrealistic to think courts should reach for larger themes of employee and worker protection and rights when few currently exist. The message of the workplace is already that workers are not priorities, and women workers even less. To change this approach, we must change how the workplace values the woman worker and set standards and practices that facilitate women’s presence, prioritize their equality and human dignity, and remove any reward systems that encourage sexual harassment and abuse.
As discussed above, research and comparative country examples provide some guidance for how to address dynamics in the workplace that are promoting a culture of gender-motivated abuse. A case study from within the U.S. also illustrates what a transformation could look like, courtesy of the very group of workers provided with the least protections and often subject to the highest levels of abuse—low-wage immigrant farmworkers.175
Tracie Cone, Report: Sexual Abuse of Female Farmworkers Common, Wash. Post, (May 16, 2012), https://www.washingtonpost.com/politics/report-sexual-abuse-of-female-farmworkers-common/2012/05/15/gIQA7sfWTU_story.html?utm_term=.bfd1f60d2dbf[https://perma.cc/3GW7-Q8FF].
Bernice Yeung, What Hollywood Can Learn From Farmworkers, Slate (Sept. 19, 2018), https://slate.com/human-interest/2018/09/farmworkers-janitors-sexual-harassment-training.html[https://perma.cc/623B-6GWL];Joann Lo and Ariel Jacobson, Human Rights from Field to Fork: Improving Labor Conditions for Food-Sector Workers by Organizing across Boundaries, 5:1 Race/Ethnicity: Multidisciplinary Global Contexts 61 (2011); Greg Asbed and Sean Sellers, The Fair Food Program: Comprehensive, verifiable and sustainable change for farmworkers, 16 U. Pa. J. L. & Soc. Change 39 (2013).
Fair Food Program, 2017 Annual Report, http://www.fairfoodprogram.org/wp-content/uploads/2018/06/Fair-Food-Program-2017-Annual-Report-Web.pdf[https://perma.cc/9C68-BT7T].
This private regulation system, known as the Fair Food Program (FFP), consists of a complex system of education, prevention, enforcement, and accountability that involves the employer, supervisors, and workers in a collaborative process to jointly transform their work environments.178
Fair Food Program, About the Fair Food Program, http://www.fairfoodprogram.org[https://perma.cc/5P2A-H9AE].
Michael Sainato, Farmworker Campaign Heads to Wendy’s Headquarters: Will the Fast Food Giant Finally Listen?, The Nation (June 4, 2018), https://www.thenation.com/article/farmworker-campaign-heads-wendys-headquarters-will-fast-food-giant-finally-listen/[https://perma.cc/7BAE-FXXS].
Fair Foods Standards Council, Partners, Fair Food Program, http://www.fairfoodprogram.org/partners/[https://perma.cc/C2JJ-QE5A].
Fair Food Program, 2017 Annual Report, supra note 178.
The program consists of four components: a workplace code of conduct, worker to worker education, external auditing, and a complaint resolution mechanism that prioritizes timely resolution and immediate consequences along a graduated system that has, to date with one exception, avoided recourse to arbitration. The code of conduct is built around the concepts of fair and just conditions and worker dignity. It was developed by the workforce to address practical challenges of agricultural employment. It sets employment practices along with a tiered system of violations and consequences for employees and employers. It regulates wages, health and safety (e.g., shaded structures, protective gear, rest breaks, availability of medical treatment), conditions of termination, workplace violence, sexual harassment, and anti-discrimination.182
Fair Food Standards Council, Fair Food Code of Conduct, http://www.fairfoodstandards.org/resources/fair-food-code-of-conduct/[https://perma.cc/JT9P-M7DQ].
The worker education component involves yearly on-site and interactive training sessions (for workers and supervisors), focused on the right to be safe, secure, and respected in the workplace; scenarios on sexual harassment are debated through group discussions and workshop breakouts. It discusses, among other things, power dynamics and what abuse of power means, societal discrimination based on gender, race, and ethnicity, and sexual harassment in various forms and its consequences for women workers and the workplace more generally.183
Fair Food Program, Worker Education Modules 1–4.
The Fair Food Standards Council (FFSC), which consists of 15 employees under the direction of retired New York State Judge Laura Safer Ezpinoza, monitors workplaces through yearly audits (and sometimes unannounced audits). These audits involve interviews with at least 50% of workers on each farm with employer cooperation, including open access to records. In 2017, the FFSC conducted approximately 200 field and financial audits.184
Fair Foods Standards Council, About, http://www.fairfoodstandards.org/about/[https://perma.cc/WEU5-T8UJ].
Finally, the program contains an independent complaint mechanism that includes a 24-hour hotline for worker reports, which has addressed 1800 complaints since 2011, or approximately 400 a year. An investigation is conducted and findings are issued, often within weeks. There are three levels of violations around workplace violence and abuse within the system. Tier 1 is forced labor or the repeated use of child labor; Tier 2 is status discrimination, abuse, sexual harassment, or the systemic failure to pay wages; and Tier 3 is the failure to afford rest breaks or adequate drinking water. The required employer responses to abuse and harassment vary depending on its severity. Sexual harassment that involves physical contact, for example, requires immediate termination upon issuance of a finding, or the participating employer is suspended from the program. Harassment that did not include physical contact requires specified remedial action to avoid suspension or probation, which can include progressive discipline (a written warning and second time termination) and a corrective action plan for hostile work environment. Finally, the program contains sanctions for non-compliant employers which can include suspension, probation, and elimination from the program.
The FFP aptly illustrates several features fundamental to transformation of any workplace. It is based on a positive vision of the workplace that is grounded in human dignity—respect, security, and valuation of the worker—and places sexual harassment in this context, while still acknowledging its roots in gender inequality. It builds employee consciousness through worker to worker trainings and sets clear expectations for workplace behavior in an effort to define workplace culture. More broadly, it creates a dialogue in the workplace community about sexual harassment and gender discrimination which itself, over time, can serve to transform the culture. It supports women workers specifically by developing women’s leadership through trainings and monitoring, increasing women’s power and leverage in the workplace. It is structured so as to create workforce buy-in at all levels with low and mid-level supervisor training and peer-to-peer engagements, better ensuring that messaging and direction is consistent at all levels of management. Finally, it has robust but graduated consequences that allow for correction and adaptation before concerns about liability and damage awards begin to disincentivize the employer from acknowledging the existence of harmful workplace dynamics. The goals of the corrective consequences are at once restorative and prompt, allowing the workplace to transform while maintaining its integrity.
These approaches could be applied to workplaces more broadly with employer engagement. For example, workers could be invited to participate in creating dignity-based workplaces. Women workers could be encouraged to take leadership roles in defining what such a workplace would look like. Corrective mechanisms could be, at least in initial stages, aimed at improving workplace dynamics through restorative justice and other means rather than focusing on punishment and legal consequences. The FFP model, coupled with a legal framework that involves employers in preventing and addressing dynamics that facilitate harassment, could be more effective in sustainably combatting workplace sexual harassment.
VI. Conclusion
TOPIt is a unique moment for the issue of sexual harassment, which often struggles to gain the attention of policy makers and the public. Following #MeToo reports, stars pledged to add inclusion riders to their contracts, corporations declared they would abandon practices of mandating arbitration agreements, and coalitions of powerful female influencers called for action. These are all encouraging developments, but, beneath these efforts, we are left with a policy approach and legal mechanism that do not effectively address the workplace violations they seek to target.
The ILO has tried to provide a framework for conceiving of sexual harassment within a larger vision of a just workplace, one rooted in respect for human dignity and correction of inequalities that violate that dignity. The framework acknowledges that women are deprived of their basic human rights because of the “socially constructed power imbalances”185
Carlson, supra note 137.
Both approaches recognize the inefficacy of any attempt to address inequality without a foundation of rights and expectations. Our current approach to sexual harassment (and gender discrimination more generally) falls into this very trap. We ask only whether a claimant was treated with sex-based hostility against some unidentified social norm left to the discretion of a judge or jury. Our legal framework has yet to make explicit norms or expectations on the treatment of individuals in the workplace, which would allow us to determine whether the treatment in question violated these expectations. We need to understand not only that gender discrimination in the workplace is prohibited, but what rights, benefits, and privileges the workplace affords that require equal distribution and access between the genders. For this, we need a positive vision of a just and functional workplace to guide expectations and then determine how to ensure it is realized for all workers.
Various reforms would move us in the right direction. Legislation and policy reforms aimed at better protecting worker’s rights (job security, benefits, limitations of independent contractor classifications, wage violations), the passage of healthy workplace legislation186
One example for such legislation (albeit status-blind) has been proposed by David Yamada. See e.g., David C. Yamada, The Phenomenon of “Workplace Bullying” and the Need for Status-Blind Hostile Work Environment Protection, 88 GEO. L.J. 475 (2000).
Eyer, supra note 32, at 1341–1360.
U.S. Senate Health, Education, Labor, and Pensions Committee, Minority Staff Report, supra note 41, at 38–40.
The Occupational Safety and Health Administration is the only agency besides the EEOC responsible for regulating the workplace and, unlike the EEOC, OSHA engages in preventative activities and general mandate inspections. OSHA has jurisdiction over about 7 million worksites where it conducts inspections of workplaces in order to investigate (in the following order of priority): imminent danger situations; severe injuries and illnesses; worker complaints; referrals from other government bodies or individuals; high hazard industries or workplaces that have experienced high rates of injuries or illnesses, and past violations. See U.S. Dep’t of Labor, Occupational Safety and Health Admin., About Inspections, https://www.osha.gov/OshDoc/data_General_Facts/factsheet-inspections.pdf[https://perma.cc/CH6E-ZAZ8];while there are no current OSHA standards that specifically address workplace violence, courts have understood OSHA’s general duty clause as a legal obligation for employers to provide workplaces free of conditions that could result in serious physical harm. OSHA has developed enforcement procedures to address occupational exposure to workplace violence, which include inspections related to workplace violence, see U.S. Dep’t of Labor Occupational Safety and Health Admin., Enforcement Procedures and Scheduling for Occupational Exposure to Workplace Violence CPL 02-010-058, (Jan. 10, 2017), https://www.osha.gov/sites/default/files/enforcement/directives/CPL_02-01-058.pdf[https://perma.cc/7RR6-ELBZ].Thus, regulating employer duty of care to prevent sexual harassment would be a natural extension of OSHA’s mandate.
135 S. Ct. 2584 (2015)
Id. at 2597.
- 2Civil Rights Act of 1964 §7, 42 U.S.C. §2000e et seq. (1964).
- 329 C.F.R. §1608.1 (1979).
- 4Id.
- 5Meritor Sav. Bank v. Vinson, 477 U.S. 57, 60 (1986); Anita Bernstein, Law, Culture, and Harassment, 142 U. Pa. L. Rev. 1227, 1267 (1994) (“The victim of sexual harassment is a vulnerable player within the courts. Sexual harassment protections in America are almost completely the product of the judiciary; as a statute, Title VII gives virtually no guidance about this type of sex discrimination.”).
- 6Gallagher v. Delaney, 139 F.3d 338, 342 (2d Cir. 1998); Meritor, 477 U.S. at 64; Los Angeles Dept. of Water and Power v. Manhart, 435 U.S. 702, 707 n.13 (1978) (quoting Sprogis v. United Air Lines, Inc., 444 F.2d 1194, 1198 (7th Cir. 1971)) (“The language of Title VII is not limited to ‘economic’ or ‘tangible’ discrimination. The phrase ‘terms, conditions, or privileges of employment’ evinces a congressional intent’ ‘to strike at the entire spectrum of disparate treatment of men and women’ in employment’”); Ellison v. Brady, 924 F.2d 872, 879, 880 (9th Cir. 1991) (quoting Henson v. City of Dundee, 682 F.2d 897, 902 (11th Cir. 1982)) (“By acknowledging and not trivializing the effects of sexual harassment on reasonable women, courts can work towards ensuring that neither men nor women will have to “run a gauntlet of sexual abuse in return for the privilege of being allowed to work and make a living.”“)
- 7Ellison, 924 F.2d at 881 (quoting Andrews v. Philadelphia, 895 F.2d 1469, 1483 (3d Cir. 1990)) (“Congress did not enact Title VII to codify prevailing sexist prejudices. To the contrary, “Congress designed Title VII to prevent the perpetuation of stereotypes and a sense of degradation which serve to close or discourage employment opportunities for women.”)
- 8See e.g., Hall v. Gus Constr. Co., 842 F.2d 1010, 1017, 1018 (8th Cir. 1988): (“Title VII does not mandate an employment environment worthy of a Victorian salon. Nor do we expect that our holding today will displace all ribaldry on the roadway. One may well expect that in the heat and dust of the construction site language of the barracks will always predominate over that of the ballroom. What occurred in this case, however, went well beyond the bounds of what any person should have to tolerate.”); See Gallagher, 139 F.3d at 338, 342 (“Today, while gender relations in the workplace are rapidly evolving, and views of what is appropriate behavior are diverse and shifting, a jury made up of a cross-section of our heterogeneous communities provides the appropriate institution for deciding whether borderline situations should be characterized as sexual harassment and retaliation.”). For an explanation for why juries are not well situated to make sexual harassment determinations and often reflect community prejudices in their assessments of workplace hostility see Shira A. Scheindlin & John Elofson, Judges, Juries, and Sexual Harassment, 17 Yale L. & Pol’y Rev. 813 (1998).
- 9Meritor, 477 U.S. at 65.
- 10See, e.g., Barnes v. Costle, 561 F.2d 983 (D.C. Cir. 1977); Tomkins v. Pub. Serv. Elec. & Gas Co., 568 F.2d 1044 (3d Cir. 1977); see also EEOC, Policy Guidance on Employer Liability Under Title VII for Sexual Favoritism, No. 915.048 (Jan. 12, 1990), https://www.eeoc.gov/policy/docs/sexualfavor.html[https://perma.cc/R8QU-Z5P7].
- 11See generally, Pa. State Police v. Suders, 542 U.S. 129, 133 (2004) (to be actionable under Title VII, plaintiffs must show “harassing behavior ‘sufficiently severe or pervasive to alter the conditions of [their] employment’”) (quoting Meritor, 477 U.S. at 67).
- 12See Henson v. City of Dundee, 682 F.2d 891, 903–05 (11th Cir. 1982) (identifying elements of a sexual harassment claim).
- 13See Scheindlin & Elofson, supra note 9, at 815 (discussing allocation of sexual harassment determinations between judges and juries).
- 14Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998) (“Title VII does not prohibit all verbal or physical harassment in the workplace; it is directed only at ‘discriminat[ion] because of sex.’”).
- 15Id. (“[H]arassing conduct need not be motivated by sexual desire to support an inference of discrimination on the basis of sex.”).
- 16See Williams v. General Motors Corp., 187 F.3d 553, 572 (6th Cir. 1999) (Ryan, J., dissenting) (“The majority’s artificial construct-that non-sexual harassment of a female in the workplace can give rise to Title VII sex discrimination liability if it evinces ‘anti-female animus’ is a radical rewriting of settled Title VII sex discrimination jurisprudence.”); see also Faragher vs. City of Boca Raton, 524 U.S. 775, 788 (1998) (“Title VII does not prohibit ‘genuine but innocuous differences in the ways men and women routinely interact with members of the same sex and of the opposite sex.’ A recurring point in [our] opinions is that ‘simple teasing,’ offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the terms and conditions of employment. These standards for judging hostility are sufficiently demanding to ensure the Title VII does not become a ‘general civility code.’”).
- 17Vicki Schultz, Reconceptualizing Sexual Harassment, Again, 128 Yale L.J. Forum 22 (2018).
- 18Harris v. Forklift Sys., Inc., 510 U.S. 17, 22–23 (1993).
- 19Id. at 21.
- 20The Supreme Court has distinguished between a workplace that is “permeated with ‘discriminatory’ intimidation, ridicule, and insult” and one where there is the “mere utterance” of an offense. Harris, 510 U.S. 17 at 21 (quoting Meritor, 477 U.S. at 65, 67); see also Young v. Phila. Police Dep’t, 94 F. Supp. 3d 683, 700 (E.D. Pa. 2015), aff’d 651 F. App’x 90 (3d Cir. 2016).
- 21Faragher, 524 U.S. at 788.
- 22Id. (quoting Oncale v. Sundower Offshore Servs., Inc., 523 U.S. 75, 75, 81 (1998)).
- 23510 U.S. 17 (1993).
- 24Id. at 22.
- 25Id. (“So long as the environment would reasonably be perceived, and is perceived, as hostile or abusive there is no need for it also to be psychologically injurious.”).
- 26Id. at 21–22 (“If the victim does not subjectively perceive the environmental to be abusive, the conduct has not actually altered the conditions of the victim’s employment, and there is no Title VII violation.” However, “Title VII comes into play before the harassing conduct leads to a nervous breakdown. A discriminatorily abusive work environment, even one that does not seriously affect employees’ psychological well-being, can and often will detract from employees’ job performance, discourage employees from remaining on the job, or keep them from advancing their careers.”).
- 27Compare Watkins v. Bowden, 105 F. 3d 1344, 1356 (11th Cir. 1997) (upholding reasonable person jury instruction as opposed to “reasonable African American or women” jury instruction) with West v. Phila. Elec. Co. 45 F.3d 744, 753 (3d Cir. 1995) (where the objective standard was reviewed as “reasonable person of the same protected class in that position.”).
- 28523 U.S. 75 (1998).
- 29Id. at 81–82.
- 30Id.; see also E.E.O.C. v. Boh Bros. Constr. Co., 731 F.3d 444, 460 (5th Cir. 2013), (citing Oncale, 523 U.S. at 80, 118 (1998) (“We view the alleged harassment with ‘[c]ommon sense, and an appropriate sensitivity to social context’ to determine whether it constitutes ‘conduct which a reasonable person in the plaintiff’s position would find severely hostile.’”).
- 31For example, there is some indication in psychological research that juries are resistant or unable to apply reasonable person standards from particular perspectives in discrimination cases. Katie R. Eyer, That’s Not Discrimination: American Beliefs and the Limits of Anti-Discrimination Law, 96 Minn. L. Rev. 1275, 1332–33 (2011).
- 32See Meritor Sav. Bank v. Vinson, 477 U.S. 57, 69 (1986) (for conduct to constitute sexual harassment, it must be unwelcome to the victim).
- 33See Frensley v. N. Miss. Med. Ctr., Inc., 440 F. App’x 383, 386 (5th Cir. 2011); Burnes v. McGregor Electr. Indus., Inc., 989 F.2d 959, 962 (8th Cir. 1993); Henson v. City of Dundee, 682 F.2d 897, 903 (11th Cir. 1982).
- 34See, e.g., Lapka v. Chertoff, 517 F.3d 974, 982 (7th Cir. 2008) (“It goes without saying that forcible rape is ‘unwelcome physical conduct of a sexual nature.’”) (citing Little v. Windermere Relocation, Inc., 301 F.3d 958, 966 (9th Cir. 2002)).
- 35Swentek v. USAIR, Inc., 830 F.2d 552, 557 (4th Cir. 1987) (Similarly, a plaintiff’s participation in foul language or sexual innuendo in a consensual setting outside the workplace “does not waive her legal protections against unwelcome harassment.”); E.E.O.C. v. Wal-Mart Stores, Inc., Nos. 97-02229, 97-02252, 1999 WL 1032963 (10th Cir. 1999) (Evidence that a plaintiff had consensual sexual relationships with other co-workers outside of work “is not relevant to [plaintiff]’s claims of harassment at work.”); see also Wilson v. City of Des Moines, 442 F.3d 637 (8th Cir. 2006) (evidence of female employee’s sexual behavior and comments in the workplace was “highly probative of issue of whether the alleged harassment was unwelcomed.”); Excel Corp. v. Bosley, 165 F.3d 635, 641 (8th Cir. 1999) (evidence of alleged sexual relations between employee and ex-husband outside the workplace during period when harassment occurred should be excluded).
- 36See Burlington Indus. Inc. v. Ellerth, 524 U.S. 742, 765 (1998); see also Faragher vs. City of Boca Raton, 524 U.S. 775, 788 (1998).
- 37EEOC, Harassment; Employer Liability for Harassment, https://www.eeoc.gov/laws/types/harassment.cfm[https://perma.cc/A9RD-84AY].
- 38Id.
- 39Sean Captain, Workers Win Only 1% of Federal Civil Rights Lawsuits at Trial, Fast Company, (July 31, 2017), http://www.fastcompany.com/40440310/employees-win-very-few-civil-rights-lawsuits[https://perma.cc/4J5A-U5VZ](finding that, of the cases filed in court that are not settled or voluntarily dismissed, less than 1 percent result in a favorable outcome); Eyer, supra note 32 at 1299 (exploring the reasons for the low success rates of discrimination lawsuits).
- 40See generally Sandra F. Sperino & Suja A. Thomas, Unequal: How America’s Courts Undermine Discrimination Law (Oxford University Press, 2017); Scheindlin & Elofson, supra note 9; U.S. Senate Health, Education, Labor, and Pensions Committee, 115th Cong., So I Tolerated It—How Work Places Are Responding to Harassment and the Clear Need for Federal Action: Minority Staff Report (December 2018) [henceforth Minority Staff Report] [https://www.help.senate.gov/imo/media/doc/Senator%20Murray%20Harassment%20Report%20Final.pdf].
- 41Scheindlin & Elofson, supra note 9; U.S. Senate Health, Education, Labor, and Pensions Committee, Minority Staff Report, supra note 41 at 31–33.
- 42Scheindlin & Elofson, supra note 9 at 834–37.
- 43Id.
- 44Theresa M. Beiner, Let the Jury Decide: The Gap between What Judges and Reasonable People Believe Is Sexually Harassing, 75 S. Cal. L. Rev. 791, 809–17 (May 2002).
- 4533.3 percent of Supreme Court justices are women, 36.8 percent of Circuit Court of Appeals judges are women, and 34 percent of Federal District Court judges are women. Am. Bar Ass’n, A Current Glance at Women in the Law, at 5 (Jan. 2018), https://www.americanbar.org/content/dam/aba/administrative/women/a-current-glance-at-women-in-the-law-jan-2018.pdf[https://perma.cc/2KHX-XPAC].
- 46Researchers have concluded that features of American culture create reluctance by any fact-finder (judge or jury) to attribute workplace wrongs to status discrimination. Eyer, supra note 32, at 1299.
- 47Scheindlin and Elofson, supra note 9, at 834.
- 48EEOC, Time Limits for Filing a Charge, https://www.eeoc.gov/employees/timeliness.cfm[https://perma.cc/CHE6-6D7Q].
- 49EEOC, What You Can Expect After You File A Charge, https://www.eeoc.gov/employees/process.cfm[https://perma.cc/LWA9-N225].
- 50EEOC, All Charges Alleging Harassment (Charges Filed with the EEOC) FY 2010-FY2018, https://www.eeoc.gov/eeoc/statistics/enforcement/all_harassment.cfm[https://perma.cc/N535-9WWF].
- 51U.S. Senate Health, Education, Labor, and Pensions Committee, Minority Staff Report, supra note 41, at 10–15 (discussing EEOC charge data and lack of reliable data on sexual harassment charge success).
- 52Christine O. Merriman and Cora G. Yang, Employer Liability for Coworker Sexual Harassment Under Title VII, 13 N.Y.U. Rev. L. & Soc. Change 83, 84 note 6 (1985) (citing an unpublished 1979 Working Women’s Institute Study (WWI)).
- 53Gallagher v. Delaney, 139 F.3d 338, 342 (2d Cir. 1998).
- 54Civil Rights Act of 1964, Pub. L. 88-352, 78 Stat. 241 (1964).
- 55The Constitutional Court in South Africa provides a good example of a transformative approach to discrimination claims. See Catherine Albertyn, Substantive Equality and Transformation in South Africa, 23 S. Afr. J. on Hum. Rts. 253 (2007).
- 56Id.
- 57Vicki Schultz, Open Statement on Sexual Harassment from Employment Discrimination Law Scholars, 71 Stan. L. Rev. Online 17 (2018), https://www.stanfordlawreview.org/online/open-statement-on-sexual-harassment-from-employment-discrimination-law-scholars/[https://perma.cc/6CAK-UW65].
- 58See Bernstein, supra note 6, at 1271.
- 59Kim Parker, Women in Majority-Male Workplaces Report Higher Rates of Gender Discrimination, Pew Research Center (Mar. 7, 2018), http://www.pewresearch.org/fact-tank/2018/03/07/women-in-majority-male-workplaces-report-higher-rates-of-gender-discrimination/[https://perma.cc/47DZ-6TMJ].
- 60Jocelyn Frye, Not Just the Rich and Famous: The Pervasiveness of Sexual Harassment across Industries Affects All Workers, Ctr. for Am. Progress (Nov. 20, 2017), https://www.americanprogress.org/issues/women/news/2017/11/20/443139/not-just-rich-famous/[https://perma.cc/WF4U-H6AY].
- 61Id.
- 62Elyse Shaw, Ariane Hegewisch & Cynthia Hess, Sexual Harassment & Assault at Work: Understanding the Costs, B376 IWPR 1–12 (Oct. 2018), https://iwpr.org/wp-content/uploads/2018/10/IWPR-sexual-harassment-brief_FINAL.pdf[https://perma.cc/X58H-9CWT].
- 63See Parker, supra note 60.
- 64Women’s Initiative, Women Disproportionately Report Sexual Harassment in Male-Dominated Industries, Ctr. for Am. Progress (Aug. 6, 2018), https://www.americanprogress.org/issues/women/news/2018/08/06/454376/gender-matters/[https://perma.cc/JR4J-AQD2].
- 65Heather McLaughlin, Christopher Uggen & Amy Blackstone, Sexual Harassment, Workplace Authority, and the Paradox of Power, 77(4) American Sociological Rev. 625, 634 (2012), http://journals.sagepub.com/doi/pdf/10.1177/0003122412451728[https://perma.cc/MWE7-WCCN].
- 66See Frye, supra note 61.
- 67See Shaw et al., supra note 63, at 3.
- 68Id. at 4. The last example has been highly publicized in this past year through articles by women harassed in the entertainment industry, as well as law clerks and in academia, and, in general all professions that instill certain individuals with high levels of unchecked authority. See, e.g., Nancy Gertner, Sexual Harassment and the Bench, 71 Stan. L. Rev. Online 17 (2018) https://review.law.stanford.edu/wp-content/uploads/sites/3/2018/06/71-Stan.-L.-Rev.-Online-Gertner-1.pdf[https://perma.cc/TY5Z-YKAS];see also Katie Benner, Women in Start-Up World Speak Up About Harassment, N.Y. Times, July 4, 2017, https://www.nytimes.com/2017/07/04/insider/technology-sexual-harassment.html[https://perma.cc/K7AQ-BSQK];Pamela Hutchinson, #MeToo and Hollywood: What’s Changed in the Industry a Year On? The Guardian, Oct. 8, 2018, https://www.theguardian.com/world/2018/oct/08/metoo-one-year-on-hollywood-reaction[https://perma.cc/A5YY-AAQT].
- 69Int’l Labor Org, Conditions of Work and Equality Dept. [ILO], Final Report, at ¶62, 105, 110, Meeting of Experts on Violence against Women and Men in the World of Work, MEVWM/2016/7 (Geneva, 3–6 October 2016), http://www.ilo.org/wcmsp5/groups/public/---dgreports/---gender/documents/meetingdocument/wcms_546303.pdf[https://perma.cc/9QGE-BYVH].
- 70Id. at ¶12, 13, 101; see also Int’l Labour Office, Ending Violence and Harassment Against Women and Men in the World of Work, ILC.107/V/1 29, 70 (2018), https://www.ilo.org/wcmsp5/groups/public/---ed_norm/---relconf/documents/meetingdocument/wcms_553577.pdf[https://perma.cc/B38L-VA6J].
- 71Id. at ¶12, 101.
- 72Id.
- 73Ann C. Hodges, Strategies for Combating Sexual Harassment: The Role of Labor Unions, 15 Tex. J. Women & L. 183 (2006).
- 74See, e.g., ILO, Final Report, supra note 70, at ¶49; Shaw et al., supra note 63, at 4–6; see also Chelsea R. Willness, Piers Steel & Kibeom Lee, A Meta-Analysis of the Antecedents and Consequences of Workplace Sexual Harassment, 60 Personnel Psychology 127 (2007); Morton Nielson, et al., Prospective Relationships between Workplace Sexual Harassment and Psychological Distress, 62(3) Occup. Med. (Lond) 226 (Mar. 2012).
- 75Lawton, supra note 2.
- 76Id. at 820–21.
- 77See Schultz, Reconceptualizing Sexual Harassment, supra note 18.
- 78Id. at 26.
- 79Id. at 27.
- 80See Catharine A. MacKinnon, Sexual Harassment of Working Women 27–28 & n. 13 (1979).
- 81McLaughlin et al., supra note 66 (explaining that sexual harassment is used to counterbalance women in positions of power and might be motivated more by desire for control and domination than sexual desire).
- 82Ryan K. Jacobson and Asia A. Eaton, How Organizational Policies Influenced Bystander Likelihood of Reporting Moderate and Severe Harassment at Work, 30:1 Employ. Response Rights J. 37 (2018) (Participants in zero-tolerance policy condition were more likely to intend to formally report the harassment to their organization).
- 83Brenda L. Russell and Kristin Y. Trigg, Tolerance of Sexual Harassment: An Examination of Gender Differences, Ambivalent Sexism, Social Dominance, and Gender Roles, 50(7–8) Sex Roles 565 (2004) (explaining that ambivalence and hostility toward women are much greater predictors of tolerance of sexual harassment than is gender alone).
- 84ILO, Ending Violence and Harassment Against Women and Men in the World of Work, Report [henceforth Ending Violence and Harassment] V(1), ILC. 107/V/1, 1–31, 45–59, 77–83 May 12, 2017), https://www.ilo.org/wcmsp5/groups/public/---ed_norm/---relconf/documents/meetingdocument/wcms_553577.pdf[https://perma.cc/BW68-KCRF].
- 85Id. at 33–44, 63–75.
- 86ILO, Ending Violence and Harassment, supra note 85, at 6, 9, 14–16, 34, 41, 76, 97.
- 87The Universal Declaration of Human Rights (UDHR), the foundation of the human rights system, begins with an assertion of the “inherent dignity and of the equal and inalienable rights of all members of the human family.” G.A. Res. 217 (III) A, Pmbl., Universal Declaration of Human Rights (Dec. 10, 1948). Similarly, the International Covenant on Civil and Political Rights (1966), one of the system’s first and still most widely recognized treaties, asserts that basic human rights “derive from the inherent dignity of the human person” and that the animating principle of the covenant is the “recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family [as] the foundation of freedom, justice and peace in the world.” G.A. Res. 2200 (XXI) A, International Covenant on Civil and Political Rights (Dec. 16, 1966).
- 88Christopher McCrudden, Human Dignity and Judicial Interpretation of Human Rights. 19(4) Eur. J. Int’l L. 655, 689–92 (2008).
- 89Susie Cowen, Can Dignity Guide South Africa’s Equality Jurisprudence, 17 S. Afr. J. on Hum. Rts. 34, 48 (2001).
- 90McCrudden, supra note 89; Inter-American Court of Human Rights, Advisory Opinion OC-4/84 of 19 Jan. 1986 (Proposed Amendments to the Naturalization Provision of the Constitution of Costa Rica requested by the Government of Costa Rica), at ¶¶55–56 (“notion of equality springs directly from the oneness of the human family and is linked to the essential dignity of the individual.”).
- 91G.A. Res. 217 (III), supra note 88, art. 23.
- 92ILO, ILO Multilateral Framework on Labour Migration: Non-Binding Principles and Guidelines for a Rights-Based Approach to Labour Migration, at 9 (2006).
- 93Though the text of CEDAW is silent on sexual harassment, in 1992, the CEDAW Committee issued a comment on gender-based violence, explaining that the state duty to eradicate all forms of gender-based violence, including sexual harassment and domestic violence, was implied under the treaty obligations to eliminate all forms of gender discrimination. UN Comm. on the Elimination of Discrimination Against Women (CEDAW) on its Eleventh Session, G. Rec. No. 19 (1992).
- 94G.A. Res. 2200 (XXI) A supra note 88, International Covenant on Economic, Social and Cultural Rights, International Covenant on Civil and Political Rights and Optional Protocol to the International Covenant on Civil and Political Rights, (Dec. 16, 1966) at 2–3, ¶7, (“rights of everyone to the enjoyment of just and favourable conditions of work” with regard to fair wages and “equal remuneration for work of equal value without distinction of any kind, in particular women being guaranteed conditions of work not inferior to those enjoyed by men, with equal pay for equal work”).
- 95McCrudden, supra note 89, at 689–92; The importance of providing economic justice was understood as a crucial part of this international movement to secure peace and stability. Article 23 of the League of Nations Covenant included the “fair and humane conditions of labour for men, women, and children” and envisioned the establishment of international organizations to realize this objective. This goal was the focus of the International Labour Organization (ILO) established in 1919 in Paris to promote fair and humane conditions for workers through legal mechanisms and monitoring procedures.
- 96CEDAW, supra note 94; Jessica Lenahan (Gonzales) et al. v. United States, Merits Report, Inter-Am. Commission on H.R., No.80/11 (July 21, 2011) (explaining that states must exercise due diligence to protect women from all forms of gender-based violence).
- 97For instance, Article 26(1) and (2) of the Council of Europe European Social Charter (Revised) of 1996 requires states to adopt rules on violence and harassment, which include requiring state parties to work with employers and workers to promote awareness, provide information and prevent both sexual and moral harassment in the workplace (although a third of the states who have ratified do not consider one or both of these paragraphs of the Charter to be binding); the 2011 Council of Europe Convention (Istanbul Convention) obligates ratifying members to “prohibit, prevent, prosecute and eliminate violence against women, including sexual harassment, and all forms of domestic violence, including economic violence,” ILO, Ending Violence and Harassment, supra note 85, at 41, §3.5, ¶174 and ¶175.
- 98Id. at 56, ¶221, p. 65, §5.3, ¶249 and ¶251. See also McAleenon v. Autism Initiatives NI [2013] NIIT 815/12 [¶65] (N. Ir.) (explaining the “danger of an employer not being proactive in circumstances where members of staff are known to engage in physical contact”); Grobler v. Naspers 2004(4) SA 220(C) (South Africa Labor Court) (finding the employer liable where harassment was a foreseeable risk); Cour de Cassation [Cass.] [supreme court for judicial matters] soc., Jan. 30, 2019, Bull. Civ. V, No. 17-28905 (Fr.) (finding obligation of the employer to take effective measures to protect their employees when it is in a situation to exert de facto authority on non-salaried persons who are responsible for the sexist harassing behavior.)
- 99EEOC, Enforcement Guide on Vicarious Employer Liability for Unlawful Harassment by Supervisors, (April 6, 2010), https://www.eeoc.gov/policy/docs/harassment.html[https://perma.cc/XJ4N-6HDC].See also Hurley v. Atlantic City Police Dept., 174 F.3d 95, 118 (3d Cir. 1999) (“Ellerth and Faragher do not, as the defendants seem to assume, focus mechanically on the formal existence of a sexual harassment policy, allowing an absolute defense to a hostile work environment claim whenever the employer can point to an anti-harassment policy of some sort;” defendant failed to prove affirmative defense where it issued written policies without enforcing them, painted over offensive graffiti every few months only to see it go up again in minutes, and failed to investigate sexual harassment as it investigated and punished other forms of misconduct.); see also Dees v. Johnson Controls World Services, Inc., 168 F.3d 417, 422 (11th Cir. 1999) (employer can be held liable despite its immediate and appropriate corrective action in response to harassment complaint if it had knowledge of the harassment prior to the complaint and took no corrective action).
- 100ILO, Ending Violence and Harassment, supra note 85, at 63–64, §35.1, ¶¶244–47.
- 101EP Committee on Women’s Rights and Gender Equality (FEMM), Article 31 of EU Resolution on Measures to Prevent and Combat Mobbing and Sexual Harassment at Workplace, in Public Spaces, and Political Life in the EU (2018) calls on Member States and social partners to ensure that employers organize “mandatory training on sexual harassment and bullying”; Article 33 “stresses that companies should have a zero tolerance approach to sexual harassment. Resolution on Measures to Prevent and Combat Mobbing and Sexual Harassment at Workplace, in Public Spaces, and Political Life in the EU, Eur. Parl. Doc. P8_TA-PROV(2018)0331; see also Article 26 of the European Directive on Sexual Harassment “Prevention of discrimination[:] Member States shall encourage, in accordance with national law, collective agreements or practice, employers and those responsible for access to vocational training to take effective measures to prevent all forms of discrimination on grounds of sex, in particular harassment and sexual harassment in the workplace. Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the Implementation of the Principle of Equal Opportunities and Equal Treatment of Men and Women in Matters of Employment and Occupation (recast), 2006 O.J. (L 204) 3, https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32006L0054&from=EN[https://perma.cc/5S26-2Q5S];Gabrielle S. Friedman & James Q. Whitman, The European Transformation of Harassment Law: Discrimination versus Dignity, 9 Colum. J. Eur. L. 241 (2002).
- 102Part I, Section 2 of the Health & Safety at Work Act 1974 “It shall be the duty of every employer to ensure, so far as is reasonably practicable, the health safety and welfare at work of his employees,” Health and Safety at Work etc. Act 1974, 1, §2, (Eng.).
- 103The Management of Health and Safety at Work Regulations 1999 were introduced to reinforce the Health and Safety at Work Act 1974. Regulation 3 states that employers “shall make a suitable and sufficient assessment of the risks to the health and safety of his employees to which they are exposed whilst they are at work,” The Management of Health and Safety at Work Regulations 1999, SI 1999/3242, art. 3, ¶1 (Eng.).
- 104Id. at sec. 7, ¶1–5., generally a defense to an alleged breach of sexual discrimination legislation by employers.
- 105Swedish Work Env’t Auth., Inspections, Investigations and Checks, https://www.av.se/en/work-environment-work-and-inspections/inspections-investigations-and-checks/inspection/[https://perma.cc/PB9J-T4TH].
- 106Id.
- 107Ordinance on Violence and Menaces in the Working Environment (Swedish Work Environment Authority’s Statute Book [AFS] 1993:17) (Swed.).
- 108Id.
- 109Id.
- 110Psychosocial Workload, Occupational Safety and Health Administration Finland, 2 (2017) Tyosuoujelu.fi Website of the Occupational Safety and Health Administration in Finland, https://www.tyosuojelu.fi/web/en/about-us/publications[https://perma.cc/J2WT-4YXR].
- 111Id.
- 112Malgorzata Milczarek, Workplace Violence and Harassment: A European Picture, Eur. Agency for Health and Safety at Work, EU-OSHA, 29 (2010), https://osha.europa.eu/en/tools-and-publications/publications/reports/violence-harassment-TERO09010ENC[https://perma.cc/TK3U-9LE7].
- 113Riitta Sedig, Hidden Issue Brought to Daylight, Labor & Employment Law Strategic Global Topics: Sexual Harassment Law in the Workplace Around the World, 1 (2018).
- 114For example, New Brunswick has amended the General Regulation—Occupational Health and Safety Act NB Reg 91-191 [General Regulation] Amendment, (2019) (“OHSA”) in order to protect employees from violence and harassment (other jurisdictions in Canada have already enacted this kind of legislation).
- 115Ontario Women’s Justice Network, Workplace Violence and Harassment – Occupational Health and Safety Act, OWJN, (August 1, 2016), owjn.org/2016/08/workplace-violence-and-harassment-occupational-health-and-safety-act/[https://perma.cc/3474-7553].
- 116HR Proactive Inc., An Employer’s Guide to Conducting Harassment Investigations, https://https://harassmentinvestigation.ca/employer_guide_harass_invest.pdf[https://perma.cc/Z9KS-G2CN];Crisis Prevention Institute, Nonviolent Crisis Prevention, CPI, http://educate.crisisprevention.com/OntarioBill168NowKnownAsSection32OntarioOHSA.html?code=ITG081PSRW&src=Pay-Per-Click[https://perma.cc/6EHC-GCRL].
- 117Being Harassed at Work? Information for Workers, Ontario Ministry of Labor (May 2017), https://www.labour.gov.on.ca/english/hs/pubs/fs_wvh_atwork.php[https://perma.cc/645H-8NCH].
- 118Jessica A. Clarke, Beyond Equality—Against the Universal Turn in Workplace Protections, 86 Ind. L. J. 1219 (Fall 2011); Kathryn Abrams, The New Jurisprudence of Sexual Harassment 83 Cornell L. Rev. 1169 (1998); Friedman and Whitman, supra note 102, at 273.
- 119Abrams, supra note 119, at 1249.
- 120Friedman and Whitman, supra note 102, at 264–65.
- 121Friedman & Whitman, supra note 102, at 269–71.
- 122At various points, scholars and commentators have seen the advantages of an approach that conceives of harassment as a dignitary workplace safety and wellbeing issue. Anita Bernstein and Catherine McKinnon have both noted the regulatory and preventative advantages. See MacKinnon, supra note 81, at 159; Bernstein, supra note 6 at 1256–1311.
- 123ILO, Ending Violence and Harassment, supra note 85, at ¶12, 13, 29, 70, 101.
- 124See, e.g., Sperino & Thomas, supra note 41, at 177.
- 125Schultz, Reconceptualizing Sexual Harassment, supra note 18, at 30, 59–66.
- 126ILO, Ending Violence and Harassment, supra note 85, at ¶25 and 44.
- 127Arianna Rossi, Ending Violence at the Workplace, World of Work Magazine of ILO (2017) at 37–40.
- 128Workers in poor working conditions, atypical employment (particularly temporary jobs), women entering industries traditionally dominated by men, and self-employed or low-hours workers who are outside the scope of labor law are particularly vulnerable to violence. ILO, Ending Violence and Harassment, supra note 85, at ¶108. See also Article 35 of EU Measures to Prevent and Combat Mobbing and Sexual Harassment at Workplace, in Public Spaces, and Political Life in the EU which “calls on Member States to take measures to ensure equal pay between women and men as a means of promoting gender equality and respect for human dignity, which is fundamental to combating VAW. EU Measures, supra note 102.
- 129UN General Assembly, Convention on the Elimination of All Forms of Discrimination Against Women, 18 December 1979, A/RES/34/180, Art. 11, ¶18; G.A. Res. 1325, Convention on the Elimination of Discrimination Against Women (1979); UN Comm. on the Elimination of Discrimination Against Women on its Thirtieth Session, G. Rec. No. 25 (2004).
- 130Id.
- 131For an example of how dignity and equality interact in other jurisdictions, see Cowen, supra note 90, at 34–58.
- 132John A. Powell, Post-Racialism or Targeted Universalism, 86 Denv. U. L. Rev.785, 802–03 (2008).
- 133Id.
- 134See, e.g., Clarke, supra note 119, at 1281–84.
- 135Albertyn, supra note 56.
- 136Eric Stener Carlson, The ILO’s Innovative Approach to Ending Gender-Based Violence and Harassment: Towards a New International Framework for the World of Work, ABA (2017), https://www.americanbar.org/content/dam/aba/events/labor_law/2017/11/conference/papers/CARLSON-The%20ILOs-Innovative-Approach-to-Ending-Gender-based-Violence-and-Harassment.pdf[https://perma.cc/X5UV-GQYQ].
- 137As of 2017, 14 percent of the US workforce was offered an employer-sponsored paid family leave program. See Trish Stroman et al., Why Paid Family Leave Is Good Business, Boston Consulting Group (February 2017) at 3–4, 17; Microsoft and Uber have eliminated forced arbitration agreements for employees or customers who make sexual harassment claims. See Nick Wingfield and Jessica Silver-Greenberg, Microsoft Moves to End Secrecy in Sexual Harassment Claims, N.Y. Times (Dec. 19, 2017), https://www.nytimes.com/2017/12/19/technology/microsoft-sexual-harassment-arbitration.html[https://perma.cc/2H8P-TCTT];Sarah Ashley O’Brian, Uber Will No longer Force Victims of Sexual Assault into Arbitration, CNN Business (May 15, 2018), https://money.cnn.com/2018/05/15/technology/uber-eliminates-forced-arbitration/index.html[https://perma.cc/85KC-PFHE].
- 138As President Franklin Roosevelt stated when he sent the FLSA bill to Congress on May 24, 1937, “a self-supporting and self-respecting democracy can plead no justification for the existence of child labor, no economic reason for chiseling worker’s wages or stretching worker’ hours conditions that do not meet rudimentary standards of decency should be regarded as contraband and ought not to be allowed to pollute the channels of interstate trade,” See Jonathan Grossman, US Dep’t. of Labor, Fair Labor Standards Act of 1938: Maximum Struggle for a Minimum Wage, (quoting Franklin Roosevelt, Public Papers VI (May 24, 1937) at 209–14).
- 139Gallagher v. Delaney, 139 F.3d 338, 342 (2d Cir. 1998).
- 140The primary federal employment and labor legislation are the Fair Labor Standards Act, 29 U.S.C. §203, that sets a national minimum wage and requires overtime for hours worked over 40 per week for qualifying workplaces; the National Labor Relations Act, 29 U.S.C. §§151–169, that provides protections for workplace organizing and the formation of unions; the Occupations Health and Safety Act, 29 U.S.C. §651, that provides basic standards of health and safety in U.S. workplaces; the Family Medical Leave Act, 29 U.S.C. §2601, which guarantees basic unpaid leave for pregnancy, illness and caretaking; the Agricultural Workers Protection Act (AWPA), 29 U.S.C. §1801, that provides some basic protections to farmworkers in contracting and recruitment, wages, working conditions, and compliance; the Uniformed Services Employment and Reemployment Rights Act (USERRA) 38 U.S.C. §§4301–35 ensures that workers who enter the military for short periods can return to their private sector job without loss of seniority or benefits, and the statutes that prohibit status discrimination such as Title VII, 42 U.S.C. §2000e, the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§621–34, and the Americans with Disabilities Act (ADA), 42 U.S.C. §1801.
- 141Friedman & Whitman, supra note 102, at 265–70; see also, Katherine V.W. Stone, Revisiting the At-Will Employment Doctrine: Imposed Terms, Implied Terms, and the Normative World of the Workplace, 36 Indus. L. J. 84, 84–86 (2007); see also generally, Clyde W. Summers, Employment at Will in the United States: The Divine Right of Employers, 3:1 U. Pa. J. Lab. & Emp. L. 65 (Fall 2000).
- 142See Jean R. Sternlight, Is the U.S. out on a Limb – Comparing the U.S. Approach to Mandatory Consumer and Arbitration to That of the Rest of the World, 56 U. Miami L. Rev. 831 (2002) (Though widespread in the U.S., mandatory arbitration policies are rarely employed in other countries); see also Carol Daugherty Rasnic, Balancing Respective Rights in the Employment Contract: Contrasting the U.S. “Employment-At-Will” Rule with the Worker Statutory Protections against Dismissal in European Community Countries, 4 J. Int’l L. & Prac. 441, 442 (1995) (Benefits required by European domestic statutes include a guaranteed paid vacation time of four weeks or longer and an average of fourteen to sixteen weeks of paid maternity leave. By contrast in the U.S. vacation time “is a privilege rather than a right” and the Family and Medical Leave Act only mandates twelve weeks of unpaid leave per year for family-related medical needs).
- 143The minimum wage in the U.S. is $7.29 an hour and was last updated in 2009, see U.S. Dep’t of Labor, Minimum Wage, https://www.dol.gov/general/topic/wages/minimumwage[https://perma.cc/SSL9-7M98].In comparison, as of 2013, Australia had the highest minimum wage of $9.54 an hour, followed by Luxembourg at $9.24. See Paul Muggeridge, This Is What the Minimum Wage Looks Like Around the World, World Economic Forum (June 30, 2015), https://www.weforum.org/agenda/2015/06/this-is-what-the-minimum-wage-looks-like-around-the-world./[https://perma.cc/W7SU-WZQR].
- 144Ben Zipperer, The Erosion of the Federal Minimum Wage Has Increased Poverty, Especially for Black and Hispanic Families, Economic Policy Institute (June 13, 2018), https://www.epi.org/publication/the-erosion-of-the-federal-minimum-wage-has-increased-poverty-especially-for-black-and-hispanic-families/[https://perma.cc/RRQ7-4JWH].
- 145For a complete list see U.S. Dep’t of Labor, Exemptions, ELAWS Fair Labor Standards Act Advisor, https://webapps.dol.gov/elaws/whd/flsa/screen75.asp[https://perma.cc/46FL-P8KL].
- 146Pensions at a Glance in 2017: How Does the United States Compare?, Org. for Economic Co-operation and Development (OECD) (Dec. 5, 2017), https://www.oecd.org/unitedstates/PAG2017-USA.pdf[https://perma.cc/NHK3-PLYH].
- 147Stone, supra note 142, at 84.
- 148The report, conducted in cooperation with Llewellyn Consulting, reveals that the countries offering the most generous workplace and welfare benefits overall are Denmark, France and Spain, with Denmark and Belgium in particular offering the best unemployment benefits (pay and eligibility period). See Llewellyn Consulting, Which Countries in Europe Offer Fairest Paid Leave and Unemployment Benefits, Glassdoor at 12 (2016), https://www.glassdoor.com/research/app/uploads/sites/2/2016/02/GD_FairestPaidLeave_Final.pdf[https://perma.cc/LP9K-E2Z5].
- 149Id. at 11.
- 150U.S. Dep’t of Labor, Contingent and Alternative Employment Arrangements, Bureau of Labor Statistics (June 7, 2018), https://www.bls.gov/news.release/conemp.nr0.htm[https://perma.cc/388N-RY6V].
- 151Id.
- 152U.S. Dep’t of Labor, Wage and Hour Division (WHD), https://www.dol.gov/whd/workers/misclassification/[https://perma.cc/4PUZ-347F].
- 153See, e.g., Dynamex Operations West, Inc. v. Superior Court of Los Angeles, 416 P.3d 1, 42 (Cal. 2018), (where the California Supreme Court held that delivery drivers were employees rather than independent contractors and announced a new test for establishing independent contractor status that considers franchise or licensing relationships); see also, Simpkins v. DuPage Housing Authority, 893 F.3d 962 (7th Cir. 2018) (reversing a district court’s grant of summary judgment and holding that the plaintiff was an independent contractor, as opposed to an employee); Thornton v. Mainline Commc’ns. LLC, 157 F. Supp. 3d 844 (E.D. Mo. 2016) (where the district court found that cable repair and installation technicians were misclassified as independent contractors).
- 154See, e.g., Epic Systems Corp. v. Lewis, 138 S. Ct. 1612 (2018) (upholding the validity of employer requirement that employees submit to individual arbitration of wage-and-hour and other work place conditions claims).
- 155See, e.g., Hoffman Plastic Compound v. NLRB, 535 U.S. 137 (2002) (holding that an undocumented worker who was not authorized to legally work in the U.S. was not eligible to receive back pay under the NLRA); for an example of recent acknowledgments by courts that some contractual obligation may exist for temporary foreign laborers see, Jimenez v. GLK Foods LLC, No. 12-CV-00209, Dkt. 50 (E.D. Wis. 2013) (finding contractual obligations for H2-B workers).
- 156See Miriam Jordan, 8 Million People are Working Illegally in the U.S. Here’s Why That’s Unlikely to Change, The New York Times (Dec. 11, 2018), https://www.nytimes.com/2018/12/11/us/undocumented-immigrant-workers.html[https://perma.cc/Y33B-LT4H];Lisa Rapaport, U.S. Relies Heavily on Foreign-Born Healthcare Workers, Thompson Reuters (Dec. 4, 2018), https://www.reuters.com/article/us-health-professions-us-noncitizens/u-s-relies-heavily-on-foreign-born-healthcare-workers-idUSKBN1O32FR[https://perma.cc/8V5K-LEJD].
- 157In 2016, research from Oxfam found that one in four low-wage workers in the US did not have a single day of earned sick time, see Oxfam, Millions of Low-Wage Workers in the US Are Struggling to Survive, (June 21, 2016), https://www.oxfamamerica.org/explore/stories/millions-of-low-wage-workers-in-the-us-are-struggling-to-survive/[https://perma.cc/Z9VC-A2L4].
- 158During the last three decades, funding levels for agencies that enforce laws against workplace violations have declined precipitously despite the fact that the labor force has grown. For instance, the number of inspectors enforcing minimum wage and overtime laws declined by 31%, while the labor force increased by 52% between 1980 and 2007. See Annette Bernhardt, et al., Broken Law, Unprotected Workers: Violations of Employment and Labor Laws in America’s Cities, National Employment Law Project at 52 (2009).
- 159In 2017, only 10.7% of wage and salaried workers in the U.S. were members of labor unions, while in 1983, 20.1% of wage and salaried workers were members of labor unions, see, Hanna Fingerhut, More Americans View Long-Term Decline in Union Membership Negatively than Positively, Pew Res. Center (June 5, 2018), http://www.pewresearch.org/fact-tank/2018/06/05/more-americans-view-long-term-decline-in-union-membership-negatively-than-positively/[https://perma.cc/7L6N-2MK5].
- 160Domestic workers are not covered by the NLRA (“the term “employee”. shall not include any individual employed as an agricultural laborer, or in the domestic service of any family or person at his home”“); farmworkers are not covered by the NLRA (“the term “employee” shall not include any individual employed as an agricultural laborer, or in the domestic service of any family or person at his home”“). See 29 U.S.C. §152 (1935). See also U.S. Dep’t of Labor, Handy Reference Guide to the Fair Labor Standards Act, https://www.dol.gov/whd/regs/compliance/hrg.htm#2[https://perma.cc/SM4T-FED9].Farmworkers, with few exceptions, are not covered by the FLSA’s minimum wage and maximum hour requirements. See 29 U.S.C. §213 (1938) at ¶6 (“Minimum wage and maximum hour requirements shall not apply with respect to any employee employed in agriculture").
- 161700,000 Female Farmworkers Say They Stand with Hollywood Actors Against Sexual Assault, Time Magazine (November 10, 2017), http://time.com/5018813/farmworkers-solidarity-hollywood-sexual-assault/[https://perma.cc/98NN-GFKU].
- 162Our lack of prioritization of the woman worker is reflected in women’s workplace participation. In most industries, women are absent in management and supervisory positions, longevity in employment and other positions of influence. Women make up 44 percent of the S&P 500 labor force, and 36 percent of first or mid-level officials and managers in those companies, however only 25 percent of executive and senior level officials and managers are women; only 20 percent of board seats are held by women; and only 6 percent of CEOs are women. Women make up 54 percent of the workforce in the financial services industry, but only 29 percent of executive and senior level managers and 2 percent of CEOs are women. In the legal field, 45 percent of associates are women, but only 22 percent of partners are women and 18 percent of equity partners. In the medical field, 37 percent of all physicians and surgeons are women, but only 16 percent of permanent medical school deans are women. Judith Warner and Danielle Corley, The Women’s Leadership Gap: Women’s Leadership by the Numbers, Center for American Progress (May 21, 2017).
- 163The United States and Mexico are the only two OECD countries that do not guarantee at least 14 weeks of paid leave to mothers of infants, see Amy Raub et al., Paid Parental Leave: A Detailed Look at Approaches across OECD Countries, World Policy Analysis Center (2018). Data from the Organization for Economic Cooperation and Development (OECD) shows that among 41 nations, the U.S. is the only country that does not mandate any paid leave for new parents, See Gretchen Livingston, Among 41 Nations, U.S. is the Outlier When it Comes to Paid Parental Leave, Pew Research Center, (September 26, 2016), http://www.pewresearch.org/fact-tank/2016/09/26/u-s-lacks-mandated-paid-parental-leave/[https://perma.cc/HD5K-ABWR].
- 164Drew Desilver, Rising Cost of Child Care May Help Explain Recent Increase in Stay-at-Home Moms, The Pew Research Center, (April 8, 2014), http://www.pewresearch.org/fact-tank/2014/04/08/rising-cost-of-child-care-may-help-explain-increase-in-stay-at-home-moms/[https://perma.cc/4XPZ-GUPR].
- 165Lisa Harker, The Family-Friendly Employer in Europe, in The Work-Family Challenge: Rethinking Employment 49 (Suzan Lewis & Jeremy Lewis eds., 1996).
- 166Id., at 54. Publicly funded or employer sponsored childcare provisions have also become popular in countries like the UK, where the percentage of parents receiving support for childcare from their employer is rising. Dep’t of Education, Childcare and Early Years Survey of Parents in Education, (Dec. 2017) at 11, https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/669857/SFR73_2017_Text.pdf[https://perma.cc/HT66-N4ZP].
- 167Burwell v. Hobby Lobby, 573 U.S. 682 (2014); Wheaton Coll. v. Burwell, 574 U.S. 958 (2014) (holding that the college was not required to follow the mandate under Patient Protection and Affordable Care Act (ACA) and related regulations that it provide its employees and students with health insurance coverage for contraceptive services). See also Religious Exemptions and Accommodations for Coverage of Certain Preventive Services Under the Affordable Care Act, 26 CFR 54, 147, 2590 (2015); Moral Exemptions and Accommodations for Coverage of Certain Preventive Services Under the Affordable Care Act, 26 CFR 54, 147, 2590 (2015).
- 168In October of 2017, the Trump administration issued rules that provide exceptions to the Affordable Care Act’s contraceptive coverage, allowing employers to cite religious or moral beliefs to avoid ACA requirements. Amy Goldstein, Juliet Eilperin and William Wan, Trump Administration Narrows Affordable Care Act’s Contraception Mandate, Wash. Post, (Oct. 6, 2017), https://www.washingtonpost.com/national/health-science/trump-administration-could-narrow-affordable-care-acts-contraception-mandate/2017/10/05/16139400-a9f0-11e7-92d1-58c702d2d975_story.html?noredirect=on&utm_term=.316e32c6961d[https://perma.cc/PYM9-MUJ6].At the same time, women continue to suffer career consequences as a result of childbearing, in part because gender roles are “lagging behind labor force trends,” and because of the way that society views the “bond between mothers and their children.” See Kim Parker, Women More than Men Adjust Their Careers for Family Life, Pew Research Center, (Oct. 1, 2015), http://www.pewresearch.org/fact-tank/2015/10/01/women-more-than-men-adjust-their-careers-for-family-life/[https://perma.cc/N3FT-LV8Q].
- 169Pay Equity Discrimination, Inst. for Women’s Pol’y Res., https://iwpr.org/issue/employment-education-economic-change/pay-equity-discrimination/[https://perma.cc/Q4ZC-XQBC].
- 170Gender Wage Gap, Org. for Econ. Co-operation and Dev., https://data.oecd.org/earnwage/gender-wage-gap[https://perma.cc/PJ4G-MPGF].
- 171See Vanessa Romo, Federal Judge Kozinski Retires Following Sexual Harassment Allegations, NPR, (Dec. 18, 2017), https://www.npr.org/sections/thetwo-way/2017/12/18/571677955/federal-judge-retires-in-the-wake-of-sexual-harassment-allegations[https://perma.cc/3EZW-BZVJ].
- 172The Farmworker Sexual Violence Technical Assistance Project, Sexual Violence Against Farmworkers: A Guidebook for Legal Providers, https://www.victimrights.org/sites/default/files/Farmworkers%20Legal%20Providers_0.pdf[https://perma.cc/HHT6-SYE4].
- 173See, e.g., Shelley Cobb and Tanya Horeck, Post Weinstein: Gendered Power and Harassment in the Media Industries, 18:3 Feminist Media Studies 489–91 (2018).
- 174Alexandra Witze, Sexual Harassment Is Rife in the Sciences, Finds Landmark US Study, 558 Nature Int’l J. of Sci. 352–53 (June 12, 2018).
- 175Tracie Cone, Report: Sexual Abuse of Female Farmworkers Common, Wash. Post, (May 16, 2012), https://www.washingtonpost.com/politics/report-sexual-abuse-of-female-farmworkers-common/2012/05/15/gIQA7sfWTU_story.html?utm_term=.bfd1f60d2dbf[https://perma.cc/3GW7-Q8FF].
- 176Bernice Yeung, What Hollywood Can Learn From Farmworkers, Slate (Sept. 19, 2018), https://slate.com/human-interest/2018/09/farmworkers-janitors-sexual-harassment-training.html[https://perma.cc/623B-6GWL];Joann Lo and Ariel Jacobson, Human Rights from Field to Fork: Improving Labor Conditions for Food-Sector Workers by Organizing across Boundaries, 5:1 Race/Ethnicity: Multidisciplinary Global Contexts 61 (2011); Greg Asbed and Sean Sellers, The Fair Food Program: Comprehensive, verifiable and sustainable change for farmworkers, 16 U. Pa. J. L. & Soc. Change 39 (2013).
- 177Fair Food Program, 2017 Annual Report, http://www.fairfoodprogram.org/wp-content/uploads/2018/06/Fair-Food-Program-2017-Annual-Report-Web.pdf[https://perma.cc/9C68-BT7T].
- 178Fair Food Program, About the Fair Food Program, http://www.fairfoodprogram.org[https://perma.cc/5P2A-H9AE].
- 179Michael Sainato, Farmworker Campaign Heads to Wendy’s Headquarters: Will the Fast Food Giant Finally Listen?, The Nation (June 4, 2018), https://www.thenation.com/article/farmworker-campaign-heads-wendys-headquarters-will-fast-food-giant-finally-listen/[https://perma.cc/7BAE-FXXS].
- 180Fair Foods Standards Council, Partners, Fair Food Program, http://www.fairfoodprogram.org/partners/[https://perma.cc/C2JJ-QE5A].
- 181Fair Food Program, 2017 Annual Report, supra note 178.
- 182Fair Food Standards Council, Fair Food Code of Conduct, http://www.fairfoodstandards.org/resources/fair-food-code-of-conduct/[https://perma.cc/JT9P-M7DQ].
- 183Fair Food Program, Worker Education Modules 1–4.
- 184Fair Foods Standards Council, About, http://www.fairfoodstandards.org/about/[https://perma.cc/WEU5-T8UJ].
- 185Carlson, supra note 137.
- 186One example for such legislation (albeit status-blind) has been proposed by David Yamada. See e.g., David C. Yamada, The Phenomenon of “Workplace Bullying” and the Need for Status-Blind Hostile Work Environment Protection, 88 GEO. L.J. 475 (2000).
- 187Eyer, supra note 32, at 1341–1360.
- 188U.S. Senate Health, Education, Labor, and Pensions Committee, Minority Staff Report, supra note 41, at 38–40.
- 189The Occupational Safety and Health Administration is the only agency besides the EEOC responsible for regulating the workplace and, unlike the EEOC, OSHA engages in preventative activities and general mandate inspections. OSHA has jurisdiction over about 7 million worksites where it conducts inspections of workplaces in order to investigate (in the following order of priority): imminent danger situations; severe injuries and illnesses; worker complaints; referrals from other government bodies or individuals; high hazard industries or workplaces that have experienced high rates of injuries or illnesses, and past violations. See U.S. Dep’t of Labor, Occupational Safety and Health Admin., About Inspections, https://www.osha.gov/OshDoc/data_General_Facts/factsheet-inspections.pdf[https://perma.cc/CH6E-ZAZ8];while there are no current OSHA standards that specifically address workplace violence, courts have understood OSHA’s general duty clause as a legal obligation for employers to provide workplaces free of conditions that could result in serious physical harm. OSHA has developed enforcement procedures to address occupational exposure to workplace violence, which include inspections related to workplace violence, see U.S. Dep’t of Labor Occupational Safety and Health Admin., Enforcement Procedures and Scheduling for Occupational Exposure to Workplace Violence CPL 02-010-058, (Jan. 10, 2017), https://www.osha.gov/sites/default/files/enforcement/directives/CPL_02-01-058.pdf[https://perma.cc/7RR6-ELBZ].Thus, regulating employer duty of care to prevent sexual harassment would be a natural extension of OSHA’s mandate.
- 190135 S. Ct. 2584 (2015)
- 191Id. at 2597.