From the abstract: Sexual interactions often involve implicit, ambiguous behavior, yet research on unwanted sexual interactions in the workplace largely focuses on interactions that are explicitly sexual. Drawing on 84 interviews with tech industry workers, I show that unwanted, ambiguously sexual interactions are relatively commonplace in their workplaces. Ambiguously sexual interactions can take multiple interactional trajectories, but one possibility is that they will lead toward explicit sexual harassment. When interviewees worry that an ambiguously sexual interaction might veer into sexual harassment, they engage in what I term trajectory guarding, in which they carefully monitor and guide interactions in an attempt to avoid opportunities for harassment to crop up. Interviewees described trajectory guarding as labor-intensive and potentially detrimental to their careers. Because women tended to be most wary of sexual harassment, they disproportionately engaged in trajectory guarding and risked the possible costs of doing so. I focus on the case of trajectory guarding against ambiguously sexual interactions, but I suggest that trajectory guarding is a more general strategy used by marginalized people seeking to avoid potential mistreatment.
This report provides an overview of the state legislative progress that has been made in advancing workplace harassment reforms since #MeToo went viral. It also highlights some of the stories of how survivors have led the push for these important reforms.
This new report finds that we are closing in on workplace harassment law reform in #20Statesby2020, with a remarkable 19 states enacting new workplace protections since #MeToo went viral in October 2017. The report also finds, however, that states have been slow to adopt some of the reforms that promise to make the biggest difference for those most marginalized by harassment and for preventing harassment.
Some major trends include: • 15 states limited or prohibited employers from requiring employees to sign nondisclosure agreements as a condition of employment or as part of a settlement agreement. • 11 states and New York City implemented or strengthened anti-harassment training requirements for certain employers. • 7 states enacted measures to require or encourage employer anti-harassment policies. • 7 states limited employers’ use of forced arbitration, though several of these laws are being challenged in court. • 6 states expanded workplace harassment protections to include independent contractors, interns, and/or volunteers for the first time. • 5 states and New York City extended their statute of limitations for filing a harassment or discrimination claim.
As awareness of the prevalence and pervasiveness of workplace sexual harassment has grown in the United States, so, too, has the use of mandatory arbitration clauses in employment contracts to shepherd employee claims out of courtrooms and into private arbitration proceedings. Though private arbitration is often touted as cheaper and more efficient than traditional litigation, employees are significantly less likely to win in arbitration and, when they do, their awards are often much less.
Grown out of the expansion of the Federal Arbitration Act (FAA), passed in 1926, mandatory arbitration clauses now cover over half of non-union workers in the United States. Despite evident inequities, Congress has done little to abate the expansion, and the federal court system has adopted a strong pro-arbitration jurisprudence. In recent years, the Supreme Court has gone as far as to limit the use of group arbitration—to the severe detriment of sexual harassment victims amid what can be an already arduous claim process. In response, states and localities have passed laws that forbid or limit the use of mandatory arbitration clauses. These laws, however, are often preempted by the FAA and never take effect. The public has also pushed back against mandatory arbitration and has achieved real success. Many corporations and law firms are stopping the practice amid public pressure, walk-outs, and boycotts.
This Comment will detail the prominent inequities present in mandatory arbitration, particularly in cases of sexual harassment and workplace discrimination. Then, it will advocate for one of two things: (1) judicial reinterpretation of the FAA and its savings clause to permit states to pass laws that restrict the use of mandatory arbitration, or (2) congressional action, namely the passage of the Ending Forced Arbitration of Sexual Harassment Act. This legislation, combined with strategic public pressure on legislators and businesspeople, would lead to immediate relief for sexual harassment victims and signal larger arbitration reform on the horizon.
Source: Mark V. Roehling, Labor Law Journal, Vol. 71, Issue No. 2, Summer 2020 (subscription required)
From the abstract: The use of zero tolerance sexual harassment policies is a common employment practice that is both widely advocated and widely criticized. Advocates of zero tolerance policies describe them as a best practice that is “essential”, “the only way forward”, and something companies should be “forced to do”. On the other hand, critics of zero tolerance policies, including the EEOC Select Task Force on Harassment, characterize them as misleading efforts that are not only ineffective in preventing sexual harassment, but also potentially counterproductive.
What explains these sharply contrasting assessments? What are the key factors that should be taken into account in evaluating the conflicting assessments and making decisions regarding the adoption and implementation a zero tolerance sexual harassment policy? This article addresses these questions and is organized in four sections. Because the outwardly conflicting assessments of zero tolerance policy are due in part to different uses of the term “zero tolerance,” the first section addresses the different meanings given “zero tolerance.” The second and third sections identify and discuss the potential benefits and potential pitfalls of zero tolerance policies. The discussion in these two sections is interdisciplinary in nature, addressing the potential benefits and pitfalls from both legal and behavioral science perspectives. Drawing on the interdisciplinary assessment of the potential benefits and pitfalls, the final section provides recommendations intended to assist employers, and the lawyers and human resource professional who advise, make well-informed decisions regarding the adoption and effective implementation of zero tolerance sexual harassment policies.
From the abstract:
Many have hailed the #MeToo Movement as a turning point in the way this country discusses sexual assault and sexual harassment, but when looking at the #MeToo Movement through the lens of Supreme Court nominations, it is unclear whether the impact of the Movement will be as far reaching as some imagine. The hearing of Anita Hill, which came before the #MeToo Movement, and the hearing of Dr. Christine Blasey Ford, which came after the #MeToo Movement, perhaps demonstrate that the #MeToo Movement has reached its limit culturally and now institutional change must be the focus in order for the goals of the #MeToo Movement to be fully realized. Looking to the hearing of Professor Hill to analyze what we should have learned, the #MeToo Movement to assess what we thought we learned, and the hearing of Dr. Ford to recognize what we still have to learn about survivors of sexual assault, this Article begins to develop creative solutions to ensure that our institutions change as our society changes, with the ultimate goal of creating a society where no one else has to say #MeToo.
From the abstract:
With the growth of the #MeToo movement since October 2017, more than 200 prominent male executives have lost their jobs. Some pushback has occurred as many of these executives have asserted their behavior was not inappropriate because their acts were consensual. Essentially, this argument requires companies evaluating this behavior to find nothing wrong when executives use their vast power and influence to have romantic and sexual relationships with their subordinates who do not say “no.”….
The trend is up for EEOC class-based sexual harassment investigations. Jayde Ashford Brown, with Hunton Andrews Kurth, reviews recent cases and offers tips on how employers can establish an anti-harassment workplace.
….Training isn’t the only place most sexual harassment programs fall short. Lilia Cortina, a professor of psychology, women’s studies, & management at the University of Michigan, has found that many organizations flounder in how they handle complaints. Cortina’s research reveals that companies’ formal grievance systems fail for four reasons: they are rarely used; people who file complaints regularly face retaliation; retaliation has negative long-term career and health consequences; and formal complaints rarely lead to the removal of the harasser. Filing a complaint can do more harm than good, if it does anything at all.
Given that current efforts to address workplace sexual harassment are clearly not working, what does an effective program look like? Cortina said the starting point has to be a commitment from leadership to meaningful cultural change, rather than checking a box or looking for a quick fix….
…..When harassment is identified, it’s important that discipline is consistent and does not give the appearance of undue favor. For example, the EEOC found that companies that successfully created a culture of non-harassment “acknowledged and owned” complaints, instead of attempting to bury them, and were willing to hold high-ranking and highly-valued employees accountable. In addition, studies show that harassment thrives in workplaces where there’s a stark power imbalance between men and women, so hiring and promoting more women, and compensating them equitably, can undermine the root causes.
There may always be people who abuse their power and act badly in opportunistic situations, but that doesn’t mean organizations are powerless to stop them…..
For 30 years, we’ve trusted human-resources departments to prevent and address workplace sexual harassment. How’s that working out?
…The experience left me with a question: If HR is such a vital component of American business, its tentacles reaching deeply into many spheres of employees’ work lives, how did it miss the kind of sexual harassment at the center of the #MeToo movement? And given that it did, why are companies still putting so much faith in HR? I returned to these questions many times over the course of the following year, interviewing workplace experts, lawyers, management consultants, and workers in the field.
Finally, I realized I had it all wrong. The simple and unpalatable truth is that HR isn’t bad at dealing with sexual harassment. HR is actually very good at it…..
…..But the real reason many workers don’t love human resources is that while the department often presents itself as functioning like a union—the open door for worker complaints, the updates on valuable new benefits—it is not a union. In a strong job market, HR is the soul of generosity, making employees feel valued and significant. But should the economy change, or should management decide to go in another direction, HR can just as quickly become assassin as friend…..
….If employers judged HR departments by their ability to prevent sexual harassment, most would have gotten a failing grade long ago. What HR is actually responsible for—one of the central ways the department “adds value” to a company—is serving as the first line of defense against a sexual-harassment lawsuit. These two goals are clearly aligned, but if the past year has taught us anything, it’s that you can achieve the latter without doing much of anything at all about the former…..
Alicia Garza’s phone never stops ringing. The Black Lives Matter co-founder now leads Supermajority, a women’s political-training organization, along with a roster of female organizers including Cecile Richards, the former Planned Parenthood Federation of America president. The two have dedicated their efforts to building women’s political power in the U.S., a mandate that means near-constant communication with interested folks across the country. ….
In every field — business, politics, science, tech, and sport — women are breaking barriers in unprecedented numbers. Women CEOs frequently outpace their male counterparts in delivering profits, women are at the forefront of scientific research (CRISPR, anyone?), and women coaches exceed expectations for leading teams … of men. As more women have taken up posts in DC than in any time in our history, are women experiencing a “moment,” or have the pressures for gender equality and compensation finally achieved results? Remarkable leaders from diverse backgrounds share their views on what it means to break barriers.
In the post #MeToo era, the potential to shift women’s political, economic, and philanthropic power is profound. How will this activism be harnessed to fundamentally change our nation’s course? What is the agenda for women going into the 2020 elections? Can a broader consensus in support of women’s issues be mobilized? Fundamental concepts of diversity and inclusion are being crafted in whole new ways by corporate leaders who are responding to cultural pressures and market opportunities. Where will this momentum for an inclusive and diverse agenda lead and who will lead it?