Testimony on Preventing Sexual Harassment in the Workplace
Testimony on Preventing Sexual Harassment in the Workplace
The following testimony was delivered by CLS attorney Nadia Hewka in front of the Pennsylvania House Democratic Policy Committee on August 27, 2018.
I’m here as an attorney who represents low income Pennsylvania workers at Community Legal Services, in support of the package of seven bills that have been introduced with the support of House Democratic Leadership. My testimony will provide insight on how sexual harassment manifests itself in low wage workplaces, as well as prevention and how to do it right.
I want to start by digging a little deeper into the workplace power dynamics that lead to sexual harassment and other forms of discrimination. We need to understand these dynamics and view all of the systems through the lens of the most disempowered to make sure the systems will work for all workers and thereby have any chance of success in eradicating sexual harassment and other types of discrimination.
In the workplace, and in society generally, people lack power for a variety of different, layered reasons. This is especially true for a worker who is a woman, racial minority, immigrant, person with a disability, LGBTQ+ individual, person living in poverty, or person on bottom of “totem pole” at the job. Not all of these categories are “protected classes” under discrimination law but they all interact with and amplify each other. Aggressors select relatively powerless targets and targets often do not fight back because of their powerlessness. And that is why sexual harassment happens more often and more severely to immigrant farmworker women, or immigrant janitor women, because they are perceived as having less power and thus less likely to speak up. The most severe cases we have seen, where harassment leads to sexual assault, have happened to our immigrant clients who work in restaurants or in cleaning. Predators know who to target with a quick calculus of who is less likely to speak up, and less likely to be believed if they do speak up, and less likely to take legal action out of fear. Sexual harassment also happens more in workplaces that have a strong male dominated culture, as seen in the NY Times articles about the problems at the Ford plants in Detroit, where men team up to exclude women and black and brown people from threatening their status and power. In addition to the impacts on the individual, the economic impacts are wide ranging, as these are better paying jobs and whole classes of workers are excluded. We have decided as a society to do something about this problem and have put laws and enforcement agencies in place to try to fix that.
On the flip side, think about the ways that a disempowered person, now traumatized from the sexual harassment, can possibly navigate the systems we have set up to get legal redress. Power dynamics continue to work against her at that point, complicated by other factors, like trauma. You need to report hostile work environment before you have a legal claim, going up against those in charge on the job whose instinct may be to protect their friends and existing power structures. Fear of losing the job, exacerbated by lack of savings for low income people working paycheck to paycheck, and lack of safety net whatsoever for immigrant workers, can present an incredible barrier to reporting harassment. The other factors that people are up against when reporting something at the workplace include normalization of harassing behaviors that cause already traumatized people to further blame and shame themselves, fear of ostracism by coworkers for complaining, hostile human resources departments that are there to serve the interest of the company and not the workers, lack of any HR department at a small workplace, no workplace policies to know to whom to report, etc. It takes a highly motivated person to move forward facing all this, and in my experience they are often motivated by an internal strong sense of justice, or wanting to make sure this doesn’t happen to others, or when the behavior gets completely intolerable and rises to the level of sexual assault.
Once the person figures out how to go further, their legal recourse is hampered by lack of resources for a lawyer, lack of resources at the Pennsylvania Human Relations Commission and other anti-discrimination agencies that cause long delays and particularly impact the outcomes for unrepresented complainants; also such things as statutes of limitation, lack of coverage if harassment happened in a small workplace, or if it happened to an independent contractor, lack of information regarding past history of harasser or the company, and sometimes by arbitration agreements. If and when a survivor makes it to the agency they then have to go up against vastly greater resourced company that cause further delays to extract a low settlement, taking advantage of the power imbalance to demand confidentiality clauses, and other outcomes that favor the company rather than the public good of ending harassment.
We support the proposed reforms because the traumatized poor woman of color might need more time to process the trauma before ready to get new job and then fight what happened at old job, so short statutes of limitations work against her. We need more workplaces covered so the immigrant woman at pizza place or the domestic worker, or the gig worker has somewhere to turn once she has figured out how to extract herself from the dangerous situation. We need the possibility of a jury trial to even the power balance between the worker and the company in the legal process. And so it goes for all of these reforms that we are discussing, as they are not merely abstract policies but have real impacts on real people. The facts are that the systems in place haven’t served all equally well and we must do better lest we replicate the power dynamics already in force.
While I’m here I’d also like to urge all who care about this issue to think about what we can do to prevent sexual harassment from happening in the first place. This is a big task but there are things we can do and are trying to do before the harm occurs, leaving someone traumatized for life, or excluded from a career. Some of these things the law cannot fix as backpay and damages do not fix trauma.
A couple of years ago a number of Philadelphia organizations came together to see whether we can do our work differently. We took note of a study that the Restaurant Opportunities Center did of Philadelphia restaurant workers, showing high levels of sexual harassment, among other problems in these unregulated, nonunion workplaces. National statistics show that despite the recognition that sexual harassment is underreported, of EEOC complaints, restaurants are the biggest source of complaints, way out of proportion to size of industry.
Because it is an industry that is public facing, workers face harassment by customers in addition to the coworker and supervisor sexual harassment in other workplaces. This is combined with the many other factors including the presence of alcohol to fuel poor choices, the tipped minimum wage which makes servers and others tolerate unacceptable behaviors, huge power imbalances in hierarchical structures in kitchens and because of large immigrant workforce, macho workplace cultures in kitchens. Add to this the fact that these workplaces are unregulated, meaning nonunion, and usually small businesses that often don’t have any workplace policies in place let alone strong sexual harassment policies.
It’s somewhat ironic that employers actually need to put policies in place to encourage reporting, so that they can put an end to discriminatory, harassing behavior that is damaging to the individuals and to workplace morale. If they don’t know about it, they can’t stop it; if the problem is allowed to continue and grow until it gets more severe, it will be more likely to lead to a legal claim. So this means an employer must also put itself into the shoes of the least empowered person at workplace and think through how to encourage that person to report when implementing policies and procedures and evaluating its workplace culture. Workers are not likely to come forward if past experience shows that supervisors don’t take their complaints seriously; what would be the point of putting your job at risk and face ostracism from coworkers if the end result will lead to no change at all?
Most workplace sexual harassment trainings are done with an eye to avoid liability, not true prevention. We came up with a different kind of model for our free training project: we talk about trauma, workplace dynamics, coworker intervention, to encourage reporting by the harassed worker and by coworkers who witness harassing behavior. We also came up with sample policies and procedures for employers to implement that are tailored to the restaurant industry. We are working to raise funds to get organizers on board who are connected with the restaurant industry to do peer-to-peer training and outreach. Our goal is to make workplaces safer for all and we believe it is in the business interest of employers to do so. Our project is called the Coalition for Restaurant Safety and Health, or CRSH, and we welcome you to learn more about us at our website, www.saferestaurantsphilly.org
As we do this work we would welcome the opportunity to discuss what we are seeing, what is working and what isn’t, and whether there are policy steps that can be taken to encourage a prevention-based approach that is actually effective, such as insurance discounts or other incentives.