Moving Women Forward On the 50th Anniversary of Title VII of the Civil Rights Act A Three-Part Series
Part One: Sexual Harassment Still Exacting a Hefty Toll
Jamieka, shipyard worker and ERA client Page 1 Acknowledgements
This Report benefitted from the dedication of many individuals. The principal authors were Equal Rights Advocates staff members Noreen Farrell, Jennifer Reisch, Monali Sheth, Joelle Emerson, and Mia Munro. We also thank Jocelyn Sperling and Irma Herrera for outstanding editorial suggestions and drafting assistance. Equal Rights Advocates thanks and acknowledges a Blue Ribbon Panel of national experts who contributed invaluably to the direction of the report in its early stages and offered editorial suggestions. They are: Herma Hill Kay, Professor of Law at University of California Berkeley School of Law Joanna Grossman, Professor of Law at Hofstra University School of Law Katherine M. Kimpel, Sanford Heisler LLP Jeannette Cox, Professor of Law at University of Dayton School of Law Linda Hamilton Krieger, Professor of Law at University of Hawaii at Manoa William S. Richardson School of Law Leslye Orloff, Professor of Law and Director of the National Immigrant Women’s Advocacy Project at American University Washington College of Law Monica Ramirez, former Acting Deputy Director of Centro de los Derechos del Migrante, Inc. William Tamayo, U.S. Equal Employment Opportunity Commission Ariane Hegewisch, Institute for Women’s Policy Research Roberta Steele, National Employment Lawyers Association Equal Rights Advocates thanks the institutional funders who generously support our work and the movement for social justice in this country, including the Ford Foundation, the NoVo Foundation, the Levi Strauss Foundation, the Skadden Fellowship Foundation, the San Francisco Foundation, Common Counsel Foundation, Rosenberg Foundation, and the Women’s Foundation of California. We also thank the Restaurant Opportunities Centers United for its partnership with ERA through the Access to Gender Justice Campaign to end sex discrimination and unfair treatment in the restaurant industry.
©2014 Equal Rights Advocates. All rights reserved. Page 2 Moving Women Forward: Executive Summary “
All I want is to be human, and American, and have all the same rights, and I will shut up. Martha Griffiths, former member of the U.S. House of Representatives from Michigan and a chief proponent “of adding sex as a protected class to Title VII of the Civil Rights Act of 1964. When Martha Griffiths, a member of the House of v. San Francisco),5 and pay and promotion discrimination Representatives, fiercely advocated for a last-minute (Dukes v. Wal-Mart Stores).6 ERA has fielded calls from amendment to Title VII of the Civil Rights Act of 1964 to tens of thousands of women across the country with include a prohibition of workplace discrimination based concerns about discrimination and harassment at work. on sex,1 the world was a different place. Women were The stories of our many clients, recent data from the excluded outright from many workplaces. Employers Equal Employment Opportunity Commission, and input could lawfully pay women less for the same work and fire from the nation’s top gender equity experts, all informed them once their pregnancies became obvious. Sexual this Report. harassment was blatant. Marriage and weight gain The answer to whether Title VII has improved women’s and getting older were grounds for termination in some economic opportunities and security depends on which industries, for women anyway. women are the subject of the question. This Report The amendment adding “sex” as a protected category focuses on low-wage women workers and women to Title VII, just two days before Congress voted on the of color. Troubling statistics drive this focus. Women bill, was a tremendous opportunity for the women’s are nearly two-thirds of minimum wage workers in this movement. Fifty years after passage of the Civil Rights country.7 They are twice as likely as men to be employed Act of 1964, we ask: in occupations that pay poverty wages.8 African-American women and Latinas are even more likely than women Has Title VII of the Civil Rights Act of as a whole to be employed in lower-paying service occupations and significantly more likely to be among the 1964 Improved Women’s Economic working poor.9 Women with children remain concentrated Opportunity and Security? in low-wage jobs and are paid substantially less than 10 Equal Rights Advocates takes a hard look at that question fathers or men and women who are not parents. in this Report. Founded in 1974, ERA grew up with the This Report is a three-part series that examines: Civil Rights Act of 1964. Over our 40-year history, ERA sexual harassment and violence, discrimination against has relied on Title VII to pursue groundbreaking cases to pregnant workers and working mothers, and the gender end sex discrimination in the workplace. Our early equal wage gap. protection pregnancy discrimination cases before the U.S. The first obstacle examined in this report – sexual Supreme Court, like Geduldig v. Aiello (1974),2 buoyed harassment and violence in the workplace – has passage of an amendment to Title VII to confirm the law’s been largely ignored as an economic issue despite its prohibition against pregnancy discrimination as a form of devastating impact on a large number of working women. sex discrimination (the Pregnancy Discrimination Act of Sexual harassment compromises the economic security 1978).3 ERA also led cases to combat workplace sexual of women workers because women who are harassed harassment (Miller v. Bank of America),4 the exclusion of are often denied or deterred from promotions, fired, or women from male-dominated fields like firefightingDavis ( forced to leave their jobs, regardless of whether they file
Page 3 Moving Women Forward: Executive Summary
THREE PERSISTENT BARRIERS TO EQUAL OPPORTUNITY FOR WOMEN: sexual harassment and violence discrimination against pregnant workers and working mothers the gender wage gap a complaint.11 And millions of women workers who rely law to protect and advance opportunities for women on customer tips to support themselves and their families and used it to successfully challenge sex discrimination (particularly in states where the tipped minimum wage is in hiring, pay, promotion, other working conditions. Title just $2.13 per hour) too often face the impossible choice VII can be credited, in part, for the radical increase in of enduring sexual harassment or losing income critical to women’s and mothers’ participation in the workforce their survival.12 and labor market. Women now make up nearly half the The second part of this Report examines discrimination workforce and have entered almost every profession. and lack of accommodation for pregnant workers and But today, as Dukes v. Wal-Mart Stores and subsequent caregivers. It is a problem that is only getting worse. retail cases demonstrate, entire industries remain The number of pregnant women who are fired or laid infected by sex discrimination and other unfair practices. off has actually grown over the past two decades13 Today, ERA represents women shipyard works in and is especially high for African-American women and Norfolk, Virginia who suffer from blatant discrimination Latinas.14 Pregnant women and new mothers working in and harassment in their workplace, where they are low-wage jobs are heavily burdened by discrimination.15 outnumbered by men 16 to 1. Many are women of color Low-wage workers are filing a disproportionate who have been denied raises and higher paying jobs number of pregnancy discrimination charges,16 and the despite decades of service and exemplary qualifications. discrimination these women face has long-term negative It is a workplace where women are commonly called effects on their earning capacity and economic stability.17 “whores” and other slurs, and where supervisors and The third installment of this Report addresses the gender senior managers alike participate in or turn a blind eye to wage gap – a glaring and measurable example of this rampant sexual harassment. persistent sex discrimination in the American workforce. The wage gap between male and female workers has Why Are We Lagging in 2014? remained stagnant for over a decade and closed by only Title VII was not designed to address many of the about 14 cents in the last five decades.18 Women working barriers to economic security for women that still exist full-time earn on average 77 cents for every dollar paid today, such as a lack of paid leave and poor access to male workers, and women of color fare even worse. to affordable, quality child care. Moreover, while we Despite laws prohibiting discrimination, most women and have enjoyed some tremendous victories in the courts, men work in different fields that are highly segregated by judicial misinterpretations of Title VII have held back gender, and “women’s work” continues to be worth less progress for many women workers in significant ways. than work done mostly by men. Fundamental obstacles also remain to even accessing the protections of Title VII for far too many workers, How Has Title VII Succeeded? How leading to widespread under-enforcement in low-wage Has it Failed? industries and occupations. Few women know their rights or can access a qualified lawyer to represent them when The cases, stories, and data examined in this Report they need legal help. Many are fearful of retaliation or are reveal a law that has bright spots as a tool in the too financially vulnerable to challenge discrimination at all. movement for women’s equality, but one that has its Others have been stopped by attacks on workers’ ability blind spots, too. In many ways, advocates seized the to challenge discriminatory practices collectively through opportunity presented by the last minute addition to Title class actions. VII prohibiting sex discrimination. We have enforced the
Page 4 Moving Women Forward: Executive Summary
These gaps and obstacles pose serious threats to the This bold and comprehensive approach to boost economic security of women in this country. And while and equalize economic opportunity and security for we are heartened by the efforts of partners nationwide women is gaining traction. In 2013, U.S. House of to enforce Title VII, including for women of color and Representatives Minority Leader Nancy Pelosi (D-CA) low-wage women workers, we cannot wait another and U.S. Representative Rosa DeLauro (D-CT) unveiled 50 years for workplace equality. A recent poll shows a policy platform called When Women Succeed, America that more than 70 percent of Americans believe that Succeeds: An Economic Agenda for Women and women’s contributions to our national economy are Families. The agenda outlines a broad set of federal essential.19 A significant 90 percent of American voters policy initiatives to advance the economic security of favor policies that would help women get equal pay for working families by promoting fair pay, family-friendly equal work and raise wages for women and families.20 workplaces, and universal child care. The momentum for This polling data reflects the consensus documented similar agendas is growing strong at the state level too. in a number of reports released over the past year: Minnesota, for example, recently passed the Women’s Americans want women to be treated fairly in the Economic Security Act,21 which strengthens fair pay laws workplace and will support policies to even the playing and expands protections for pregnant workers. Equal field for working women and their families. Rights Advocates has joined a chorus of partners calling for a sweeping women’s economic agenda in California How Will We Seize on Today’s that will lead the nation in its inclusion of initiatives to meet Moment of Opportunity for the the basic needs of impoverished women and families. The work of our movement is not done. Let us draw Women’s Movement? inspiration from Title VII’s 50th Anniversary and push Fifty years after Title VII’s historic passage, the time ahead now to reach its intended goal – to create and has come once again to revolutionize the judicial protect workplaces in which all workers have a chance to system to better protect women workers. This Report’s contribute, participate, and flourish, no matter their sex. three sections detail specific recommendations for policy makers, administrative agencies, advocates, and employers to get this process started. These Onward, recommendations include suggestions for improving the enforcement of Title VII and to correct flagrant Noreen Farrell misinterpretation of the law’s provisions. We also make Executive Director recommendations on how to fill Title VII’s gaps through Equal Rights Advocates a series of policy initiatives that take a holistic approach October 9, 2014 to improving the economic security of women in this country today.
Page 5 Moving Women Forward: Part One Sexual Harassment Still Exacting a Hefty Toll
ERA represents women working for a large military contractor who have brought a Title VII class action to challenge sexual harassment and other forms of discrimination against them and other women workers. Why should they have to tolerate this kind of mistreatment simply because they work in a blue-collar male-dominated field? Moving Women Forward: Part One
Fifty years after the passage of Title VII of the Civil Rights Act of 1964 and over 20 years since the Clarence Thomas Supreme Court confirmation hearing where law professor Anita Hill’s explosive testimony about sexual harassment by the nominee brought the issue into the public limelight, sexual harassment remains rampant in the workplace. The 1991 Tailhook scandal,22 in which more than 100 This fear is realized all too frequently, as many callers military officers were accused of sexually assaulting at report experiencing retaliation after reporting harassment least 83 women and 7 men over a several-day event, to their employers.31 A recent national survey tells a similar was just one of many that exposed the seriousness of story: 32 percent of women reported experiencing sexual the problem. In 2013, over 20 women came forward harassment in the workplace, and 70 percent of those with allegations that former Congressman and San women never reported it, citing fear of retaliation as the Diego Mayor Bob Filner subjected them to unwelcome reason for staying silent.32 sexual advances, including inappropriate comments, Whether reported or hidden, we have known for 23 kissing, and groping. Scandal also rocked professional decades that sexual harassment in the workplace has football earlier this year, when a Miami Dolphins player dire emotional and physical consequences for women. resigned after accusing his teammate of sexual taunting The financial impacts are severe.33 Sexual harassment 24 and racial slurs. undermines the long-term earning capacity of women Recent reports from Human Rights Watch and the workers and contributes to the gender wage gap. Southern Poverty Law Center, as well as “Rape in the It can undermine job performance and professional Fields,” a 2013 documentary from Frontline and Univision, credibility. Those who keep their jobs may be obstructed recount the stories of sexual harassment and assault by harassing supervisors or may decline certain endured by immigrant women who pick and process opportunities for professional advancement in order to the food we eat.25 Victims are reluctant to come forward avoid the harassment.34 Workers subjected to sexual because their harassers control their jobs and whether they harassment are often fired or forced to leave their jobs, can feed their children and keep roofs over their heads.26 regardless of whether they file a complaint.35 Additionally, Kirby Dick’s recent award-winning documentary, The millions of women workers who rely on customer tips Invisible War, exposes an epidemic of sexual harassment to support themselves and their families (particularly in and sexual assault against our nation’s military women states where they make the federal tipped minimum that goes well beyond Tailhook and has persisted for wage of just $2.13 per hour) are given the impossible decades.27 In 2012, over 26,000 military personnel were choice of enduring sexual harassment or losing wages 36 sexually assaulted, but only a fraction of these assaults critical to their survival. were reported.28 Anticipation of career reprisals deters The continued prevalence of sexual harassment and victims from coming forward, as more than 62 percent of retaliation that silences victims has a profound economic military women who reported sexual assault experienced toll on women workers. On the 50th anniversary of Title some form of retaliation. 29 VII, we must consider the following questions: Unfortunately, these high profile stories reflect what is ◆◆ What has Title VII done to protect women happening on the ground elsewhere. For the past several from sexual harassment? years, workplace sexual harassment complaints have represented the majority of calls to ERA’s toll-free, national ◆◆ What challenges do women subjected to advice and counseling hotline.30 Workers across a range workplace harassment face in accessing of industries, from technology to building maintenance protections and exercising rights under Title to food service and preparation, have relayed countless VII? stories of sexual harassment on the job. Fear of reprisal ◆◆ What can be done, both within and beyond and other factors often prevent women from speaking out Title VII, to overcome these challenges? at work or complaining publicly about the harassment.
Page 7 Title VII’s Bright Spots: Progress individuals who experience harassment based on in Addressing Harassment Based their nonconformity to gender stereotypes, or in other words, the perception that they are not acting how men on Sex or women “should.”45 While Title VII still has not been The interpretation of Title VII to prohibit sexual amended to include “sexual orientation” or “gender harassment has come a long way since passage of the identity” as protected categories, the line of cases Civil Rights Act of 1964. The term “sexual harassment” following Oncale spurred introduction of the Employment does not appear in the statute; nor is it referenced in Non-Discrimination Act (ENDA), pending federal Title VII’s legislative history given the last-minute inclusion legislation which would outlaw workplace discrimination of sex as a protected class shortly before the Act’s on the basis of sexual orientation or gender identity. passage.37 Worse yet, early federal court interpretations Despite the evolution of case law addressing sexual of Title VII determined that the prohibition on sex harassment in the workplace as a form of unlawful discrimination did not include sexual harassment.38 discrimination under Title VII, troubling obstacles remain But by the late 1970s, the term “sexual harassment” for many groups of women. Some of these obstacles came into use as a phrase, and by 1980 the Equal have been exacerbated by recent developments in the Employment Opportunity Commission (EEOC) published law that will have a particularly adverse impact on low- its first guidelines on workplace sexual harassment.39 In wage workers, especially immigrant women. 1986, the Supreme Court’s decision in Meritor Savings Why is Title VII falling short for these women? Bank, FSB v. Vinson recognized that sexual harassment is a form of sex discrimination prohibited by Title VII, even Title VII Blind Spots: How Does the if it does not involve employment actions like firing, failing to hire, or denying promotion to someone based on sex.40 Law Fall Short for Women Sexually Over time, courts came to recognize that sexual Harassed at Work? harassment can manifest in different ways – from daily Sexual harassment victims still face tremendous inappropriate comments to a single incident of sexual hurdles in accessing and exercising their civil rights in assault – and that all these forms can and do deprive the workplace. Employers who establish bare-bones women of equal employment opportunity. In the 1993 company policies or who operate in traditionally male- case of Harris v. Forklift Systems, Inc., the Supreme dominated, blue-collar industries are getting a free pass Court confirmed the importance of examining all the when it comes to sexual harassment. Some courts circumstances in a given situation to determine whether refuse to merit harassment claims based on race and unlawful harassment was present, specifically directing sex. Equally troubling, especially for low-wage immigrant courts to look at the frequency of the alleged misconduct women workers, is the double blow dealt by two recent as well as its severity.41 It also acknowledged that even Supreme Court decisions that increase the odds that when harassment does not have a measurable impact sexual harassment by certain supervisors and retaliation on an employee’s psychological health, it frequently can against those who complain will occur without recourse. and does undermine job performance and maintenance as well as career advancement.42 Employers Are Let Off the Hook with Courts continued to make progress in their interpretation “File Cabinet Compliance.” and application of Title VII to address sexual harassment In its earlier Title VII harassment cases, the Supreme in its many forms, including same-sex harassment. Court decided that employers could defend themselves Building upon earlier cases that held that Title VII from claims of workplace harassment by showing that outlawed sex stereotypes to influence employment they did what they could to prevent the harassment and decisions,43 the Supreme Court in Oncale v. Sundowner had procedures in place for employees to complain about Offshore Services (1998), recognized that harassment harassment.47 While the Court may have intended to “based on sex” did not have to be motivated by sexual motivate employers to take meaningful steps to prevent or romantic desire to be unlawful.44 Oncale established sexual harassment, subsequent cases have incentivized the important principle that Title VII also protects the opposite outcome.48
Page 8 Federal courts in nearly every circuit around the country egregious harassment.52 In a troubling trend, some have determined that as long as an employer has a courts have allowed “workplace culture” to act as a sexual harassment policy and a grievance procedure, it defense to sexual harassment, undermining the rights has met its obligation to prevent harassment (regardless of workers in blue-collar fields by determining that crude of whether the policy and procedure have been effective and offensive sexist behavior is simply “part and parcel” at that or any other workplace).49 Straining to avoid an of those jobs.53 intrusion on how employers structure their workplaces, Patricia Gross, a female truck driver for a construction courts are ignoring the discrimination that can fester in company, worked under a supervisor who repeatedly 50 these workplace structures. referred to her as “dumb,” a “cunt,” and other demeaning terms. He told her that she was only hired to WHAT’S THE FIX? meet federal requirements against gender discrimination and openly expressed his dislike for women who were Go Beyond Mere Policies. outside the 19-to-25 age range and weighed more • Rather than being rewarded for “file cabinet than 115 pounds. The supervisor also threatened to compliance,” employers should be encouraged to retaliate against her because he heard that she was take steps to address the actual causes of such contemplating filing an EEOC charge.54 A federal appeals harassment by, for example, keeping records court found that Patricia’s work environment should of harassment complaints, implementing post- be evaluated in light of its blue-collar nature “where complaint procedures, periodically assessing and crude language is commonly used by male and female revising anti-harassment” policies and procedures, employees.”55 The court then contrasted the setting of and evaluating supervisors’ compliance with the policies and procedures.51 Patricia’s job with that of a prep school faculty meeting or the floor of Congress to conclude that different Treat Sexual Harassment as Workplace Violence. speech is permissible in different types of workplaces.56 • Too often, when a worker reports that she has Unfortunately, many courts have followed suit, giving been sexually assaulted on the job, a manager credence to this so-called “workplace class culture hesitates or declines to involve law enforcement. The manager may ask the worker for “proof,” defense” against sexual harassment allegations in 57 or whether she is “sure” about what happened. blue-collar settings. This sort of deferential view to Sexual assaults are violent crimes; employers “workplace culture” – the attitude of “that’s just the way should treat them as such and contact law it is” – has weakened the force of Title VII to compel enforcement immediately. change in the workplace58 and address gender-based occupational segregation.59
Tougher Standards of Proof Are WHO GOT IT RIGHT? Required in Blue-Collar Jobs. The Sixth Circuit Court of Appeals got it right in Williams v. Gen. Motors Corp (1999): “We do not ERA client Janet, a specialist shipfitter, has worked at a believe that a woman who chooses to work in the shipyard for the past 30 years. Male coworkers regularly male-dominated trades relinquishes her right to be use sexual and sexist language like “bitch” and “whore” free from sexual harassment; indeed, we find this in the workplace, tell graphic “jokes” about their sexual reasoning to be illogical, because it means that conquests with women, and make comments about the more hostile the environment, and the more women not belonging in the shipyard. Female workers prevalent the sexism, the more difficult it is for a are discouraged from speaking out about this hostile Title VII plaintiff to prove that sex-based conduct is sufficiently severe or pervasive to constitute a hostile conduct because their discrimination and harassment work environment. Surely women working in the complaints are often ignored or dismissed and the men trades do not deserve less protection from the who perpetrate it largely go unpunished. law than women working in a courthouse.”60 Women like Janet who work in blue-collar jobs traditionally held by men are more likely to endure
Page 9 However, even when women of color reach the courthouse steps, judges have often mistreated their Title VII harassment claims.62 The case of Phyllis Clay illustrates this point. When Clay, an African American woman working as a security officer, alleged that her white coworkers physically assaulted her because of her race and subjected her to verbal abuse, repeatedly calling her names like “ni**er bitch,” making derogatory references to her sexual orientation, and using demeaning stereotypes about black people “liv[ing] off welfare because they are lazy,” a federal court refused to acknowledge that her harassment claim was based on her race as well as her sex.63 Many women of color experience workplace harassment because of their race and because of their sex; both elements are equally at play. For example, slurs like “ni**er bitch” refer to black women specifically, and would not be used against black men or white women – they convey both a racialized form of sexual harassment and a gendered form of racial harassment, which cannot be broken down into separate parts.64 Even though Title VII prohibits discrimination based on race and sex, courts interpreting and applying the law in harassment cases brought by women of color often fail to acknowledge or allow plaintiffs to show how race and Women of color suffer from racialized sexual harassment. sex-based harassment overlap, forcing these workers Many courts deciding cases under Title VII aren’t getting it. to compartmentalize their experiences or fold one type of harassment into another in order to assert or support Harassment Claims Brought by Women their claims of discrimination.65 of Color Get Short-Changed. WHAT’S THE FIX? A week after ERA client Alma* started a new job at a Women of color alleging harassment claims under small restaurant in Northern California, her boss began to Title VII should not have to parse out the evidence make offensive and demeaning comments about Latinas. supporting their claims into “race” and “sex” categories He regularly referred to Latinas, including Alma, as and then choose one as the primary or only focus of “whores” and “sluts” and “thieves” who are so stupid that their case. they are only good for one thing – having sex. When this harassment became too much to bear, Alma developed anxiety and depression and was forced to leave her job. The Bar to Hold Employers Liable for Alma’s boss harassed her not only because she was a woman, and not only because she was Latina, but Supervisor Harassment Is Too High. because she was a Latina woman. ERA client Maria Bojorquez worked as a janitor for a Like Alma, women of color often confront harassment national building and maintenance services company in the workplace that is filtered through the lens of their when she was sexually harassed and assaulted by the race and sex. Women of color are also particularly foreman of the building. He trained Maria, assigned her vulnerable to sexual harassment, and they have less to a work station, and checked her work each night. She access to the legal system through which they can primarily worked alone, and the foreman had unrestricted seek redress.61 access to all areas of the building, including the offices
*Real name not used. Page 10 sexual harassment by supervisors in the workplace,66 a recent Supreme Court decision, Vance v. Ball State University (2013),67 has wreaked havoc on a critical piece of that equation: the definition of a supervisor. Rejecting well-established supervisor definitions embraced by the EEOC68 and some lower courts,69 the Vance Court reclassified direct supervisors like Maria’s as co-workers, defining “supervisors” as only those with the actual authority to hire and fire subordinates.70 This artificial, unworkable distinction ignores the realities of today’s workplace and is especially harmful for low-wage workers, especially immigrants, many of whom have little or no contact with, and do not receive work assignments or supervision from, the high-level supervisors empowered to hire and fire them. In a description of the chain of command in agricultural jobs applicable to many other industries with large low-wage, immigrant workforces, Regional Attorney for the EEOC San Francisco District Office William R. Tamayo explains ERA client Maria Bojorquez, while working as a janitor this dynamic: cleaning offices at night, was sexually harassed and The owners of the major farms tend to be white, assaulted by her immediate supervisor. Maria was then English speaking longtime family members who subjected to retaliation by her employer. Maria prevailed turn over operations of the farm to “Jose,” a on both counts at trial and was vindicated with a jury long time employee who is bilingual and who is verdict of over $812,000. However, the outcome of expected to maintain the operations and keep labor Maria’s sexual harassment claim may have been different protections to a minimum – you know, “out of sight, if adjudicated under today’s Title VII test governing liability out of mind.” 71 for supervisor harassment. A fix is needed. Workers naturally view Jose as the only “supervisor” they know. Because they are geographically isolated, Maria was assigned to clean. Not long after she started have limited options, and live in poverty, workers working, the foreman began making embarrassing “are dependent on Jose to navigate the English- sexually explicit comments to her, demanding sexual speaking world for them. If Jose is a predator and/or favors, touching her breasts and buttocks against her his supervisors below him are predators, it is the ideal will, and exposing himself to her. He repeatedly warned situation for sexual harassment to occur – unfettered, her that if she told anyone, no one would believe unpunished, and unstopped.”72 her because he was “the boss” and she was just a “temporary” worker. Unfortunately, the industries where Vance will have the most harmful impact are the same industries where Maria is like many low-wage workers, and immigrant sexual harassment is most rampant – service industries workers in particular, who often endure harassment with large populations of low-wage73 and immigrant from their immediate supervisors who direct their daily workers, like building maintenance74 and restaurants.75 activities, set their schedules, and tell them what to do It is in these industries where the typical chain of and when to do it. command frequently facilitates unbridled supervisor While Maria’s case resulted in a jury verdict against her sexual harassment of vulnerable subordinates.76 It employer, it might have ended differently if decided is common in these industries for employers to give under the standards governing Title VII today. While early bilingual middlemen supervisory authority that may Supreme Court cases established circumstances under fall short of the ability to hire and fire but that allows which an employer is strictly or automatically liable for them to use their relative authority to prey on isolated,
Page 11 economically desperate female workers who cannot manager laughed at her complaints and requests for speak English and have no relationship with or transfer, asking “Who do you think you are? I know you understanding of upper management.77 These harassers are undocumented. How are you going to ask for a choose low-wage immigrant women workers precisely transfer?” After Luisa complained, the kitchen supervisor because they lack power relative to other workers threatened her brother’s job, cut her hours, and changed and because they perceive the women as passive her shift so he could work alone with her. and unable to complain.78 These middlemen are not Fears of reprisal and other factors prevent many discouraged from engaging in sexual harassment women from speaking out at work or complaining because certain formal powers have not been delegated publicly about sexual harassment.82 All too often, these to them; rather they are emboldened by the authority fears are realized for the significant portion of sexual with which they have been vested. harassment victims who find themselves worse off after By ignoring these workplace realities, Vance both complaining.83 Not surprisingly, nearly every sexual diminishes employers’ incentive to train the direct harassment case the EEOC has filed in court contains managers who control their subordinates’ daily a related retaliation claim. This reality rings particularly activities79 and makes it harder for women who suffer true for low-wage immigrant women workers.85 As the consequences of this lack of training to bring a legal EEOC Regional Counsel Tamayo has explained, power claim. As a result, 50 years after the passage of Title VII, disparities often facilitate the infliction of the most the Supreme Court has undermined Title VII’s objectives egregious and devastating acts of retaliation on this of preventing and remedying harassment, especially for demographic of women: low-wage and immigrant women workers. Retaliation is an indispensable weapon in an harasser’s arsenal. Perhaps of all settings, WHAT’S THE FIX? the workplace exhibits the greatest imbalance of • Pass the Fair Employment Protection Act, power especially for non-English speaking women, pending federal legislation that would amend immigrants, those who work in the fields, and those Title VII to clarify that employers may be held who are geographically, socially and linguistically vicariously liable for harassment and other forms of isolated. After all, the harasser supervisor can discrimination committed by individuals authorized control whether the victim has a job, can feed her to perform tangible employ-ment actions like children, has a roof over her head and whether the hiring, firing, and promoting, as well as directing an members of her family can stay alive.86 employee’s day-to-day activities.80 Unfortunately, the Supreme Court’s recent decision in • Urge the EEOC’s strict adherence to its Strategic University of Texas Southwestern Medical Center v. Enforcement Plan FY 2013-2016, which Nassar (2013)87 will diminish Title VII’s anti-retaliation prioritizes enforcement actions on behalf of vulnerable workers, including immigrant workers.81 protections and further discourage low-wage and immigrant women who have been victims of workplace harassment from reporting such unlawful conduct to Silence in the Face of Retaliation and their employers. In Nassar, the Court held that a plaintiff Poverty Wages. who has been discriminated and retaliated against must meet a more difficult standard for proving retaliation ERA hotline caller Luisa* is an undocumented Mexican than for proving the discrimination itself. After Nassar, immigrant who worked as a line cook for a large fast it is not enough to show that an employee’s complaint food restaurant chain. She was terrorized each day about harassment was one “motivating factor” for the by a kitchen supervisor who asked her out, made employer’s retaliation; instead, an employee must show sexual comments, stalked her during off-work hours, that the retaliation would not have happened had she touched her breasts, and made efforts to kiss her. He not complained.88 Some employers may attempt to push told Luisa that she “owed” him for weekend shifts and this standard even further, arguing that an employee if she didn’t do what he wanted, he would have her must prove that the retaliation happened only because fired and reported to immigration authorities. A senior she complained.
*Real name not used. Page 12 Though a Title VII Nassar fix may assist victims of sexual harassment who face retaliation when they complain, retaliation is not the only factor coercing workers into silence. Economic realities also play a major role. Today, workers making minimum wage and slightly above have less buying power than their peers from several generations ago.89 One study finds that a family of four requires close to $90,000 a year to get by in the nation’s capital – the equivalent of six minimum wage jobs.90 This reality has a disproportionate impact on women and women-headed households, since women in the workforce tend to hold the lowest-paying jobs. Nearly two-thirds of minimum wage earners are women.91
WHAT’S THE FIX? A legislative fix to theNassar decision, clarifying that the same standard applies to establishing employer liability for discrimination as to establishing employer liability for retaliation under Title VII, is critical to protect low-wage women workers from retaliation. WE ARE GETTING THERE Congress must also enact comprehensive Momentum is on the rise for this fix across the immigration reform to address the well-founded country in restaurants and other industries. Equal fears of many undocumented immigrant workers that Rights Advocates has joined forces with Restaurant complaining about or opposing discrimination will lead Opportunities Centers United and other partners, to their deportation. calling for the end of a tipped minimum wage and advocating for a fair minimum wage for workers in the restaurant industry and beyond.95 The picture is even bleaker for tipped minimum wage President Obama has called on Congress to raise workers. Poverty-level wages in the restaurant industry the federal minimum wage,96 and Democratic force women to rely on tips and fuel sexual harassment legislators have introduced a bill to increase it 92 in the workplace. In many states, the tipped minimum from $7.25 to $10.10 per hour in three steps and wage has been stuck at just $2.13 per hour for more tie future rates to inflation.97 Thirty-eight states than 20 years.93 Refusing to tolerate customer sexual recently introduced legislation related to minimum harassment can jeopardize a woman’s ability to earn the wage issues.98 Ten states and Washington, D.C. tips that support her and her family.94 enacted bills that will raise the minimum wage in those states this year,99 while voters in New Jersey WHAT’S THE FIX? approved a Constitutional amendment to raise the minimum wage in 2014 and tie future increases to Advocates and policy makers should promote the cost of living. Workers are pushing for even legislation that raises the minimum wage, more drastic change, demanding that employers including the tipped minimum wage of $2.13 per hour, pay a “living wage” above and beyond the to a living wage. Higher wages will ensure that low- proposed minor hike to the federal minimum wage. wage women workers can better support themselves Recently, thousands of non-unionized fast food and their families, provide greater purchasing power restaurant workers from across the country who so workers are not living paycheck to paycheck, earn the minimum wage or just above it walked and permit greater mobility to leave abusive work out of their jobs to demand a living wage of $15 environments where sexual harassment is rampant. an hour.101 Seattle made history by becoming the first big city to approve a $15 minimum wage, the highest rate in the country.102
Page 13 THE ADVOCATE FIX: Addressing Common Roadblocks for Low Wage, Immigrant Workers
Increase Cultural Competency. To better meet the needs of today’s increasingly diverse and multilingual workforce, attorneys who represent employees should increase their representation of low-wage and immigrant women workers in sexual harassment and retaliation cases and commit to developing the cultural and linguistic competencies necessary for such representation. Enact Immigration Reform. Undocumented women who fear immigration consequences are often scared to assert their rights. Attorneys should familiarize themselves Conclusion with the crimes that allow a victim to qualify Perhaps it is no coincidence that Professor Anita Hill for a U visa or T visa, which can give a victim chose this year to release Truth to Power, a documentary an opportunity to obtain legal status while about her decision to testify about the sexual harassment assisting in the investigation of the perpetrator. she endured while working with Clarence Thomas at the Additionally, advocates should support U.S. Department of Education and the EEOC. In the 50 comprehen-sive immigration reform. years since Title VII was enacted, and especially since Professor Hill testified about her experience before the Develop Holistic Services. U.S. Senate 22 years ago, many courageous women Non-legal advocates, community-based have come forward to speak truth to power and have organizations, rape crisis counselors, and other sought to hold their employers accountable for workplace service providers are essential to combating harassment. Yet, in spite of this progress, there are sexual harassment and violence because of their women who work in restaurants, in the military, on farms, ability to connect survivors with the non-legal in processing plants, and in other people’s homes and support and assistance they need to be able to offices who are far less privileged than Professor Hill was assert their rights and make it through the legal and for whom sexual harassment is quite simply a term process in one piece. It is critical that lawyers of employment. For these women significant obstacles representing workers who have been subjected remain in accessing, exercising, and vindicating their to workplace sexual harassment and assault workplace civil rights. reach out to and form collaborative working But these obstacles are not insurmountable. As relationships with these service providers to discussed above and in the Recommendations section ensure the best possible care and representation ahead, there are specific steps we can take and for clients. strategies we can deploy, both within and outside the bounds of the legal system and Title VII itself, to restore and expand protections against sexual harassment and retaliation and better ensure women workers access to justice.
Page 14 Seizing the Moment: Summary of Part One Recommendations
To address persistent sexual harassment in the workplace, a broad set of measures and actions are needed to move women forward on this 50th Anniversary of the Civil Rights Act of 1964. These suggested actions will correct misinterpretations of Title VII, improve enforcement of this law and others designed to advance women at work, and fill policy gaps that leave too many without the help and protection they need to enjoy economic security and equal opportunity. 1. Policymakers should enact broad women’s 4. Policymakers should pass the Equal economic security policy agendas at the Employment Opportunity Restoration Act or federal and state level, like the federal When similar legislation to eliminate some of the obstacles Women Succeed, America Succeeds Agenda to class certification erected by the Supreme Court introduced by House Democrats and the recently- in Wal-Mart v. Dukes and ensure an avenue for passed Minnesota Women’s Economic Security workers to address collectively systematic forms of Act. The agendas should take a comprehensive discrimination. approach with initiatives to meet the basic needs of women in poverty, raise income, open pathways 5. Policymakers should raise the minimum wage to quality jobs, improve workplace fairness, and and abolish the tipped minimum wage, which is improve access to high quality and affordable as low as $2.13 per hour in some states. Workers child care. should not be forced to tolerate sexual harassment in order to earn tips to supplement poverty wages. 2. Policymakers should pass the Fair Employment Protection Act. This law would 6. Policymakers should support comprehensive correct a Supreme Court misinterpretation of Title immigration reform so that immigrant women VII by clarifying that employers may be held liable workers do not fear retaliation for complaining about for harassment by individuals who control the day- sexual harassment. to day activities of workers, regardless of whether these individuals are formally authorized to hire 7. The Equal Employment Opportunities and fire. Commission should proceed with full implementation of the EEOC Strategic 3. Policymakers should pass legislation to Enforcement Plan FY 2013-2016, which focuses improve enforcement of Title VII retaliation on eliminating discriminatory hiring practices, claims. Legislation is needed to reverse a recent combating discrimination against immigrant Supreme Court decision making it harder for workers, fighting gender-based pay discrimination, workers to prove Title VII retaliation claims. and deterring workplace harassment.
Page 15 8. Worker advocates should encourage greater cultural and linguistic competency among attorneys and non-attorney advocates to better serve and represent low-wage and immigrant women workers.
9. Worker advocates should consider immigration remedies for undocumented clients. Undocumented women who fear immigration consequences are often afraid to assert their rights. Attorneys should familiarize themselves with the qualifying crimes that allow a victim to qualify for a U visa or T visa, which can enable a victim to obtain legal status while assisting in the investigation of the perpetrator.
10. Worker advocates should increase collaboration with non-legal advocates, community-based organizations, rape crisis counselors, and other service providers. Working with these providers is essential to ensuring that clients have the support and assistance they need as they assert their rights and navigate the often stressful and demanding legal process.
11. Employers should enforce both the letter and the spirit of laws ensuring equal opportunity, fair treatment, and non-discrimination in the workplace and adopt best practices for gender equity in employment. To effectively reduce the incidence of harassment in the workplace, employers must go beyond mere compliance practices. They should track harassment complaints, implement a system of post-complaint follow-up, and obtain outside evaluations of their anti-harassment policies and procedures.
12. Employers should treat workplace sexual assault as workplace violence and contact law enforcement immediately when such violence takes place.
13. Employers should support workers’ rights to organize and act together so they can support promote fair workplaces.
Page 16 Endnotes
1 The original draft of Title VII of the Civil Rights Act of 1964 would have prohibited workplace discrimination on the basis “race, color, religion, or national origin.” See, e.g., Louis Menand, The Sex Amendment, THE NEW YORKER (July 21, 2014), http://www.newyorker.com/maga- zine/2014/07/21/sex-amendment. Two days before the bill went to vote in the House of Representatives, the amendment to add sex was introduced by Representative Howard W. Smith, a Democrat from Virginia who was vocally opposed to civil rights for African-Americans. See Robert C. Bird, More than a Congressional Joke: A Fresh Look at the Legislative History of Sex Discrimination in the 1964 Civil Rights Act, 3 WM. & MARY J. WOMEN & L. 137, 150 (1997) (citing 100 Cong. Rec. 2577). While there are several theories about why Smith introduced the sex amendment, it is undisputed that Representative Martha Griffiths’ passionate defense of it contributed to its passage in the House. Id. at 139-40, 155-56; see also United States House of Representatives History, Art & Archives, Griffiths, Martha Wright, http://history.house.gov/People/Listing/G/GRIFFITHS,-Martha-Wright-%28G000471%29/ (last visited July 31, 2014).
2 2417 U.S. 484 (1974).
3 42 U.S.C. § 2000e(k).
4 600 F.2d 211 (9th Cir. 1979).
5 890 F.2d 1438 (9th Cir. 1989) (affirming consent decree).
6 603 F.3d 571 (9th Cir. 2010), rev’d, 131 S. Ct. 2541 (2011).
7 See Nat’l Women’s Law Ctr., 10 Reasons Raising the Minimum Wage to $10.10 Is a Women’s Issue, at 1 n.1 (Feb. 2014), http://www.nwlc.org/sites/default/files/pdfs/10.10_minimumwagefactsheet_green.pdf (citing U.S. Dep’t of Labor, Bureau of Labor Statistics, Characteristics of Minimum Wage Workers: 2012, Table 1, available at http://www.bls.gov/cps/minwage2012tbls.htm).
8 See Ariane Hegewisch & Maxwell Matite, Inst. for Women’s Policy Research, Fact Sheet #C350a, The Gender Wage Gap by Occupation, at 4 (Apr. 2013), available at http://www.iwpr.org/publications/pubs/the-gender-wage-gap-by-occupation-2.
9 See U.S. Dep’t of Labor, Bureau of Labor Statistics, supra note 7, at Table 1 (Black and Latina women are more than twice as likely as white women to be living in poverty and more than twice as likely as white men to work in jobs that pay at or below the minimum wage).
10 Joya Misra et al., Cross-National Patterns in Individual and Household Employment and Work Hours by Gender and Parenthood, 28, 39 (Luxembourg Income Study Working Paper Series, July 2010) (rates and hours of employment); Joya Misra et al., Work-family policies and the effects of children on women’s employment hours and wages, in Community, Work & Family 14:2, 148-49 (Routledge ed., 2011)
11 John W. Whitehead, Eleventh Hour Amendment or Serious Business: Sexual Harassment and the United States Supreme Court’s 1997-1998 Term, 71 TEMPLE L. REV. 773, 779 (2005); Gillian K. Hadfield,Rational Women: A Test for Sex-Based Harassment, 83 CALIF. L. REV. 1151, 1174 (1995).
12 Rest. Opportunities Ctrs. United, Tipped Over the Edge: Gender Inequity in the Restaurant Industry (Feb. 13, 2012), http://rocunited.org/ files/2012/02/ROC_GenderInequity_F1-1.pdf; see also Steven Rosenfeld,National Restaurant Association Ensures Poverty Wages, SALON (Aug. 28, 2013, 5:41 AM), http://www.salon.com/2013/08/28/the_other_nra_how_the_national_restaurant_association_ensures_poverty_ wages_partner/; Jeanne Smalek, Waitresses Stuck at $2.13 Hourly Minimum for 22 Years, BLOOMBERG (Apr. 25, 2013, 9:01 PM), http://www.bloomberg.com/news/2013-04-25/waitresses-stuck-at-2-13-hourly-minimum-for-22-years.html; Living Off Tips, ROCUnited.org, http://rocunited.org/living-off-tips-our-campaign-to-raise-the-tipped-minimum-wage/ (last visited June 12, 2014).
13 U.S. Census Bureau, Maternity Leave and Employment Patterns of First Time Mothers: 1961-2008, at 9 (Oct. 2011), available at www.census. gov/prod/2011pubs/p70-128.pdf (percentage of pregnant employees fired or laid off increased from 3.5 percent in 1981-1985 to 4.7 percent in 2006-2008).
14 Latina pregnant women/new mothers, for example, were fired or laid off at nearly double the rate of their white counterparts, and African Americans at nearly one and a half times the rate of their white female counterparts. Id. at 11, Table 7 (data from 2006-2008).
15 Pregnant women or new mothers without a high school degree—those likely to work in lower-wage jobs—are three times more likely than more educated women workers to be fired upon the birth of their first child. Ann O’Leary,How Family Leave Laws Left Out Low-Income Workers, 28 BERKELEY J. EMP. & LAB. L. 1, 7 (2007).
16 U.S. Equal Emp’t Opportunity Comm’n, Office of Legal Counsel, Response to Equal Rights Advocates Freedom of Information Act (FOIA) Request (Aug. 27, 2013) (on file with Equal Rights Advocates); Nat’l P’ship for Women & Families, heT Pregnancy Discrimination Act: Where We Stand 30 Years Later, 4-6, 8-9 (Oct. 2008), available at http://go.nationalpartnership.org/site/DocServer/Pregnancy_Discrimination_Act_-_ Where_We_Stand_30_Years_L.pdf (discussing the rise in pregnancy discrimination claims across the country).
17 See Diane M. Houston & Gillian Marks, The Role of Planning and Workplace Support in Returning to Work After Maternity Leave, 41 British J. of Indus. Rel. 197, 199 (2003).
18 See Ariane Hegewisch et al., Inst. for Women’s Policy Research, Fact Sheet #C413, The Gender Wage Gap: 2013, at 3 (Mar. 2014), available at http://www.iwpr.org/publications/pubs/the-gender-wage-gap-2013-differences-by-race-and-ethnicity-no-growth-in-real-wages-for-women.
Page 17 19 Maria Shriver & Ctr. for Am. Progress, The Shriver Report: Woman’s Nation Pushes Back from the Brink: Executive Summary (Jan. 12, 2014), available at http://shriverreport.org/a-womans-nation-pushes-back-from-the-brink-executive-summary-maria-shriver/. This data was drawn from a poll conducted by Greenberg Quinlan Rosner Research, in collaboration with the Center for American Progress and The Shriver Report, which contacted 3,500 adults by landline, including Spanish speakers. See The Shriver Report: Woman’s Nation Pushes Back from the Brink (Jan. 12, 2014), at Loc. 44 (“Powerful and Powerless” chapter) n.12.
20 See Women’s Voices Women Vote Action Fund, Americans Overwhelmingly Support Economic Proposals that Aid Women (July 22, 2013), available at http://www.wvwvaf.org/news/american-voters-overwhelmingly-support-economic-proposals-that-aid-women/.
21 H.F. 2536, 88th Leg. (Minn. 2013-14).
22 The Tailhook sex abuse scandal involved a series of incidents where 100 military officers were alleged to have sexually assaulted at least 83 women and 7 men, or otherwise engaged in “improper and indecent” conduct at the Las Vegas Hilton during the Tailhook Association Symposium in 1991. After investigation by the Department of the Navy and the Department of Defense, a number of officers were formally disciplined or refused advancement in rank. See Frontline, The Navy Blues: Tailhook ’91 (PBS television broadcast), http://www.pbs.org/wgbh/pages/frontline/shows/navy/tailhook/ (last visited Apr. 14, 2014).
23 Mayor Filner resigned only after months of colleagues and constituents calling on him to step down and in the face of a civil sexual harass- ment lawsuit and multiple criminal charges. The City of San Diego ultimately settled the civil suit for $250,000, and Filner pleaded guilty to three criminal charges. See Rob Davis & Adam Nagourney, Ex-Mayor of San Diego Pleads Guilty to Charges of Sexual Harassment, N.Y. TIMES, Oct. 15, 2013, at A19, available at http://www.nytimes.com/2013/10/16/us/criminal-charges-for-bob-filner-former-san-diego-mayor. html; Tony Perry, Sexual Harassment Suit against Ex-Mayor Filner Settled for $250,000, L.A. TIMES (Feb. 10, 2014, 3:46 PM), available at http://www.latimes.com/local/lanow/la-me-ln-filner-lawsuit-20140210,0,6518061.story#axzz2wKXSwoZQ; Tony Perry & Richard Marosi,San Diego Mayor Bob Filner Resigns, Faces Criminal Investigation, L.A. TIMES (Aug. 23, 2013), available at http://www.latimes.com/local/la-me-fil- ner-20130824,0,6901643.story.
24 See ESPN.com news services, Incognito, Others Tormented Martin, ESPN.com (Feb. 15, 2014, 12:03 PM), http://espn.go.com/nfl/story/_/ id/10455447/miami-dolphins-bullying-report-released-richie-incognito-others-responsible-harassment.
25 Mary Bauer & Monica Ramirez, Southern Poverty Law Center, Injustice on Our Plates: Immigrant Women in the U.S. Food Industry (Nov. 2010), http://www.splcenter.org/sites/default/files/downloads/publication/Injustice_on_Our_Plates.pdf; Grace Meng, Human Rights Watch, Cultivating Fear: The Vulnerability of Immigrant Farmworkers in the U.S. to Sexual Violence and Sexual Harassment (May 2012), http://www.hrw.org/sites/ default/files/reports/us0512ForUpload_1.pdf; Frontline,Rape in the Fields (PBS television broadcast June 25, 2013), available at http://www.pbs.org/wgbh/pages/frontline/rape-in-the-fields/. Ninety percent of female farmworkers report that sexual harassment is a major problem. Maria Ontiveros, Lessons from the Fields: Female Farmworkers and the Law, 55 ME. L. REV. 157, 169 (2003).
26 William R. Tamayo, Rape, Other Egregious Harassment, Threats of Physical Harm to Deter Reporting, and Retaliation 1 (Nov. 2011), http://www.americanbar.org/content/dam/aba/administrative/labor_law/meetings/2011/ac2011/036.authcheckdam.pdf; see also Meng, supra note 25.
27 See INVISIBLE WAR (Amy Ziering 2012).
28 Jennifer Steinhauer, Sexual Assaults in Military Raise Alarm in Washington, N.Y. TIMES, May 7, 2013 at A1, available at http://www.nytimes. com/2013/05/08/us/politics/pentagon-study-sees-sharp-rise-in-sexual-assaults.html?_r=0.
29 Julie Watson, Retaliation Prevalent in Military, Rape Victim Says 14 Years After Assault, HUFFINGTON POST (May 31, 2013), http://www.huffingtonpost.com/2013/05/31/stacey-thompson-military-rape_n_3365107.html
30 For each year between 2010 and 2013, sexual harassment complaints represented between one-quarter and one-third of calls fielded on ERA’s advice and counseling hotline, the most of any category. Nearly 50 percent of sexual harassment callers in each of these years reported they also had experienced retaliation. Equal Rights Advocates, A&C Statistical Reports, 2010-2013.
31 Id.
32 In a 2013 HuffPost/YouGov poll, 13 percent of respondents reported having been sexually harassed by a boss or supervisor and 19 percent reported harassment by a co-worker. See Jillian Berman & Emily Swanson, Workplace Sexual Harassment Poll Finds Large Share of Workers Suffer, Don’t Report, HUFFINGTON POST (Aug. 27, 2013, 1:13 AM), http://www.huffingtonpost.com/2013/08/27/workplace-sexual-harass- ment-poll_n_3823671.html.
33 Harris v. Forklift Sys., 510 U.S. 17, 19, 22 (1993) (stating that “[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 in their careers.”).
34 See Whitehead, supra note 11, at 780.
35 Whitehead, supra note 11, at 779; Hadfield,supra note 11, at 1174.
36 Because they comprise two-thirds of tipped restaurant workers, women disproportionately bear the economic burden of this wage stagnation. See Rest. Opportunities Ctrs. United, supra note 12; see also Rosenfeld, supra note 12; Smalek, supra note 12; Living Off Tips, supra note 12.
37 Robert Turner, Making Title VII Law and Policy: The Court’s Sexual Harassment Jurisprudence, 22 HOFSTRA LAB. & EMP. L.J. 575, 578-80 (Spr. 2005).
Page 18 38 See, e.g., Corne v. Baush & Lomb, Inc., 390 F. Supp. 161, 164 (D. Ariz. 1975) (determining that a ruling that sexual harassment was actionable under Title VII “would be a potential lawsuit every time any employee made amorous or sexually oriented advances toward another,” a result which could only be avoided by hiring “asexual” workers); see also Tomkins v. Public Service Electric & Gas Co., 422 F. Supp. 553, 556 (D. N.J. 1976) (holding that sexual harassment was not sex discrimination under Title VII since the federal law seeks to “make careers open to talents irrespective of race or sex” and is “not intended to provide a federal tort remedy” for sex-based conduct at the office), rev’d 568 F.2d 1044 (3d Cir. 1977) (determining that an employee’s claim that her job depended on her submission to a supervisor’s sexual advances did state a cause of action for sex discrimination under Title VII).
39 Turner, supra note 37, at 580-84.
40 Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57 (1986). In Meritor, a bank employee alleged that she was forced to have sex with her direct supervisor and bank branch manager 40 or 50 times. Id. at 60. She also alleged that the manager touched her private parts and exposed himself to her, and that he kept telling her that she was indebted to him because he was responsible for her employment. Id.
41 Harris v. Forklift Systems, Inc., 510 U.S. 17, 19, 23 (1993) (acknowledging that sexual harassment can take a variety of forms, from daily inappropriate comments to a single incident of sexual assault).
42 Id. at 22.
43 Price Waterhouse v. Hopkins, 490 U.S. 228, 251 (1989).
44 Oncale v. Sundowner Offshore Servs. Inc., 523 U.S. 75, 77 (1998) (confirming that Title VII bans same-sex sexual harassment driven by employee’s nonconformity with gender stereotypes).
45 See, e.g., Nichols v. Azteca Rest. Enters., 256 F.3d 864, 869-70 (9th Cir. 2001) (reversing grant of summary judgment in favor of employer on sexual harassment claims where there was evidence that male coworkers frequently taunted another employee because of his effeminate mannerisms, referring to him as “she” and “her,” mocking him for walking “like a woman,” and calling him a “faggot” and “female whore”); see also Rene v. MGM Grand Hotel, 305 F.3d 1061, 1064, 1066-67 (9th Cir. 2002) (reversing grant of summary judgment in favor of employer where there was evidence that male coworkers touched plaintiff “like they would to a woman,” grabbed him in the crotch and poked their fingers in his anus through his clothing).
46 On November 7, 2013, for the first time in history, the U.S. Senate voted to approve the Employment Non-Discrimination Act (ENDA), federal legislation that would outlaw workplace discrimination on the basis of sexual orientation or gender identity. Amanda Terkel, ENDA Vote: Senate Votes to Outlaw LGBT Workplace Discrimination, HUFFINGTON POST (Nov. 7, 2013, 2:17 AM), http://www.huffingtonpost.com/2013/11/07/ enda-vote_n_4228502.html. Unfortunately, earlier this year, House Republicans voted against even considering ENDA. Dave Jamieson, Busy Day for House GOP: Blocks Bills on Minimum Wage, Equal Pay, LGBT Rights, Mine Safety, HUFFINGTON POST (Apr. 9, 2014, 4 :59 PM), http://www.huffingtonpost.com/2014/04/09/minimum-wage-equal-pay_n_5119152.html.
47 Burlington Industries v. Ellerth, 524 U.S. 742 (1998); Faragher v. City of Boca Raton, 524 U.S. 775 (1998).
48 The creation of this “avoidable consequences” defense to damages and liability for employers in the Faragher/Ellerth rulings (and the lower federal courts’ subsequent interpretation of the scope of that defense) has since been viewed by many as an unequivocal sign that the Supreme Court and lower federal courts are increasingly deferential to institutionalized business and “file cabinet compliance,” which in turn erects new barriers to plaintiffs’ ability to hold their employers accountable in workplace harassment cases. See Anne Lawton, Operating in an Empirical Vaccum: The Ellerth and Faragher Affirmative Defense, 13 COLUM. J. GENDER & L. 197, 212-16 (2004); see also Samuel R. Bagenstos, The Structural Turn and Limits of Antidiscrimination Law, 94 CALIF. L. REV. 1, 24-26 (2006); Susan Bisom-Rapp, An Ounce of Prevention Is a Poor Substitute for a Pound of Cure: Confronting the Developing Jurisprudence of Education and Prevention in Employment Discrimination Law, 22 Berkeley J. Emp. & Lab. L. 1, 4-6, 27-28 (2001); David Sherwyn et al., Don’t Train Your Employees and Cancel Your ‘1-800’ Harassment Ho- tline: An Empirical Examination and Correction of the Flaws in the Affirmative Defense to Sexual Harassment Charges,69 Fordham L. Rev. 1265, 1266-67 (2001); Joanna L. Grossman, The First Bite is Free: Employer Liability for Sexual Harassment, 61 U. PITT. L. REV. 671, 708-15 (2000).
49 See, e.g., Lawton, supra note 48, at 217-223, nn. 100-04.
50 This trend can be explained, at least in part, by federal courts frequently construing anti-harassment and other civil rights laws as merely banning discrimination without intruding upon employer discretion in structuring and regulating the workplace. Id. at 199. In other words, federal courts generally resist inserting themselves into how employers set up their workplaces and oversee and “police” daily conduct in their workforce. Bagenstos, supra, note 48, at 24-26. But by failing to do so, courts overlook the reticence of victims to report harassment, especially where perpetrated by a supervisor. In our amicus brief in Faragher, ERA, the National Women’s Law Center, and Women’s Legal Defense Fund cited several studies that show the low rate at which victims report sexual harassment, and we argued that the Court should create and impose liability standards that acknowledge the reticence of victims to report harassment, especially where the perpetrator is their supervisor. Brief of Amici Curiae Nat’l Women’s Law Ctr. et al., Faragher v. City of Boca Raton, 524 U.S. 775 (1998) (No. 97-282); cf. E.E.O.C. v. Bud Foods, LLC, 5:04CV156, 2006 U.S. Dist. LEXIS 54972, at *60 (W.D.N.C. Aug. 7, 2006) (finding that plaintiff’s fear of retaliation did not excuse her “failure to follow the complaint procedures in the Policy”); Barrett v. Applied Radiant Energy Corp., 240 F.3d 262, 267 (4th Cir. 2001) (“A generalized fear of retaliation does not excuse a failure to report sexual harassment.”); Dowdy v. North Carolina, 23 F. App’x 121, 123-24 (4th Cir. 2001) (affirming trial court order granting employer motion for summary judgment, explaining that plaintiff’s broad fear of retaliation did not excuse her failure to follow her employer’s policy and lodge her harassment complaint with the designated persons); Watkins v. Prof’l Sec. Bureau, No. 98-2555, 1999 U.S. App. LEXIS 29841, at *19-20 (4th Cir. 1999) (affirming trial court order granting employer motion for summary judgment and concluding that plaintiff’s “embarrassment and fear of reprisal” did not excuse her failure to report “promptly and fully” according to her employer’s policy), cert. denied, 529 U.S. 1108 (2000).
51 See Lawton, supra note 48.
Page 19 52 Id. at 227 (citing research “indicat[ing] that women holding jobs in fields dominated by men, construction or police work, for example, are more likely to encounter harassing behavior because they work in male-defined jobs in a male-dominated work environment.”).
53 Rebecca K. Lee, Pink, White and Blue: Class Assumptions in the Judicial Interpretations of Title VII Hostile Environment Sex Harassment, 70 BROOK. L. REV. 677, 678 (2005).
54 Gross v. Burggraf Constr. Co., 53 F.3d 1531, 1536 (1995).
55 Id. at 1535-36.
56 Id. at 1538.
57 See, e.g., McNeil v. Kennecott Holdings, 381 F. App’x 791, 795 (10th Cir. 2010) (determining that there was no hostile work environment ha- rassment because Kennecott’s mining operation was the sort of “blue collar environment where crude language is commonly used”); Shepherd v. Slater Steels Corp., 168 F.3d 998, 1008 (7th Cir. 1999) (noting that an appropriate sensitivity to social context will enable courts and juries to distinguish between “simple teasing” and “roughhousing”); Johnson v. Hondo, Inc., 125 F.3d 408, 412 (7th Cir. 1997) (opining that lewd behavior and language are “commonplace” in certain circles, and more often than not, are simply expressions of “animosity” or “juvenile provocation”); Vaughn v. Pool Offshore Co., 583 F.2d 922, 924-25 (5th Cir. 1982) (concluding that hazing and practical joking should be viewed realistically as “male interaction” and not “atypical” of the work environment).
58 See, e.g., Bagenstos, supra note 48.
59 See infra Chapter Three.
60 Williams v. Gen. Motors Corp., 187 F.3d 553, 564 (6th Cir. 1999) (holding that proving a long-standing or traditional hostility toward women in the workplace will not excuse hostile work environment sexual harassment); see also Reeves v. C.H. Robinson Worldwide, Inc., 594 F.3d 798, 810 (11th Cir. 2010) (finding ample evidence of gender-specific harassment and explaining that Title VII does not allow “boorish employers a free pass to discriminate against their employees specifically on account of gender just because they have tolerated pervasive but indiscriminate profanity as well”); O’Rourke v. City of Providence, 235 F.3d 713, 735 (1st Cir. 2001) (rejecting the notion that a woman who chooses to work in male-dominated trades relinquishes her right to work in an environment free from sexual harassment); Conner v. Schrader-Bridgeport Int’l, Inc., 227 F.3d 179, 194 (4th Cir. 2000) (dismissing the idea that a prevailing workplace culture can excuse discriminatory actions); Jackson v. Quenx Corp., 191 F.3d 647, 662 (6th Cir. 1999) (reversing district court decision that condoned continuing racial slurs and graffiti on the grounds that they occurred in a blue-collar environment).
61 See Robert L. Allen, Stopping Sexual Harassment: A Challenge for Community Education, in RACE, GENDER AND POWER IN AMERICA 129, 135 (Anita Faye Hill & Emma Coleman Jordan eds. 1995).
62 See Kathryn Abrams, Title VII and the Complex Female Subject, 92 MICH. L. REV. 2479, 2498-2502 (1995). While Abrams acknowledges that “[o]ne strength of Title VII has been its capacity to accommodate the changing conceptions of discrimination and the self-conceptions of subject groups,” and “[t]his flexibility is particularly evident with respect to women,” she also critically acknowledges that Title VII enforcement has faced challenges in responding to accounts of discrimination “that emphasize the complex, intersectional character of the female subject and the variability of the discriminatory animus that subject encounters.” Id. at 2479-81.
63 Clay v. BPS Guard Services, No. 92 C 2127, 1993 U.S. Dist. LEXIS 8399, at **4, 9 (N.D. Ill. June 18, 1993); see also Abrams, supra note 62, at 2498-2502, for thoughtful analysis of the court’s treatment of the intersectional nature of claims in Clay.
64 See Abrams, supra note 62, at 2498-2502 (discussing the effects of this forced compartmentalization and analyzing discrimination cases involving intersectional claims of race and sex harassment).
65 See, e.g., Hicks v. Gates Rubber Co., 833 F.2d 1406, 1415-1416 (stating that black female plaintiffs in race harassment and sex harassment claims should be able to “aggregate evidence of racial hostility with evidence of sexual hostility”); Stingley v. Ariz., 796 F. Supp. 424, 428 (D. Ariz. 1992) (same); see also Jefferies v. Harris Cnty. Cmty. Action Ass’n, 615 F.2d 1025, 1032 (5th Cir. 1980) (non-harassment discrimination case concluding that “discrimination against black females [could] exist even in the absence of discrimination against black men or white women”); Lam v. University of Haw., 40 F.3d 1551, 1562 (9th Cir. 1994) (“Where two bases for discrimination exist, they cannot be neatly reduced to distinct components.”); Olmstead v. L.C., 527 U.S. 581, 598 n.10 (1999) (citing Jefferies with approval); cf. Lewis v. Bloomsburg Mills, Inc., 773 F.2d 561, 564-66 (4th Cir. 1985) (upholding district court’s refusal to redefine a certified class of African-American women to include African-American men when the evidence demonstrated that the employer discriminated against African-American women to a greater degree than it discriminated against African-American men, and recognizing the class of African-American women as “special victims” of a more general racial animus).
66 See Faragher, 524 U.S. 775; Ellerth, 524 U.S. 742.
67 Vance v. Ball State University, 133 S. Ct. 2434 (2013).
68 In 1999, the year after Faragher and Ellerth were decided, the EEOC published an Enforcement Guidance based on those decisions, noting that in those cases the Supreme Court reasoned that “vicarious [or automatic] liability for supervisor harassment is appropriate because supervisors are aided in such misconduct by the authority that the employers delegated to them.” See U.S. Equal Emp’t Opportunity Comm’n, Enforcement Guidance on Vicarious Liability for Unlawful Harassment by Supervisors (June 18, 1999), http://www.eeoc.gov/policy/docs/harassment.html. Based on this reasoning, the EEOC concluded that the “authority must be of a sufficient magnitude so as to assist the harasser explicitly or implicitly in carrying out the harassment” and “[t]he determination as to whether a harasser had such authority is based on his or her job function rather than job title (e.g., ‘team leader’) and must be based on the specific facts.” Id. (emphasis added). Accordingly, the Commission deter- mined that an individual qualifies as an employee’s “supervisor” if “the individual has authority to undertake or recommend tangible employment
Page 20 decisions affecting the employee; or the individual has authority to direct the employee’s daily work activities.” Id. The EEOC also acknowledged that an individual may qualify as a “supervisor” even when that employee does not have actual authority over the victimized employee, if the victimized employee reasonably believed that the harasser had this power, such as when the chain of command is unclear or when an employee is delegated broad powers that could significantly influence employment decisions regarding other employees.Id.
69 See, e.g., Mack v. Otis Elevator Co., 326 F. 3d 116, 126-127 (2d Cir. 2003); see also Dawson v. Entek Int’l, 630 F. 3d 928, 940 (9th Cir. 2011).
70 Vance, 133 S. Ct. at 2443.
71 Tamayo, supra note 26, at 3.
72 Id.
73 See Fatima G. Graves et al., Nat’l Women’s Law Ctr., Reality Check – Seventeen Million Reasons Low-Wage Workers Need Strong Protections from Harassment (2014).
74 In recent years, the EEOC has brought many enforcement actions on behalf of sexual harassment victims in the janitorial industry, most notably a class action lawsuit against ABM Industries Incorporated, the same national building services contractor that employed Maria. In that lawsuit, the EEOC represented a class of mostly monolingual Latina janitors in the Central Valley of California who had been sexually harassed by their supervisors and co-workers; one of them was raped on the job. ABM agreed to pay $5.8 million to settle the case. See E.E.O.C. v. ABM Indus. Inc., 261 F.R.D. 503 (E.D. Cal. 2009); see also EEOC v. Allstar Fitness, LLC, CV-10-1082, 2011 WL 87420 (W.D. Wash. Jan. 10, 2011) (case settled for $150,000 where Latina janitor and mother of three alleged she was forced to have sex with her supervisor at the Seattle-based health club where they worked and was threatened with termination if she refused to have sex or reported the activity to management; when she finally said that she would not have sex with him, he fired her).
75 Recent EEOC data reflects that almost 37 percent of EEOC sexual harassment charges filed by women came from the restaurant industry, even though less than 7 percent of women work in that industry. See Rest. Opportunities Ctrs. United, supra note 12, at 7. A review of the last four years of EEOC sexual harassment settlements and verdicts in the restaurant industry found over 25 major cases resulting in $15.4 million in settlements and damages awarded to over 219 women workers. Id. at 29. Eleven of these cases involved hostile work environment sexual harassment, and 50 percent of the cases involved some form of sexual assault. Id. Eighty-eight percent of the cases involved abuse and harassment by management. Id.
76 Tamayo, supra note 26, at 3; see also sources cited at supra note 12.
77 Tamayo, supra note 26, at 1, 3.
78 Id.
79 As Justice Ginsburg notes in her powerful dissent in Vance, “[w]hen employers know that they will be answerable for the injuries a harassing jobsite boss inflicts, their incentive to provide preventative instruction is heightened.” 133 S. Ct. at 2461 (Ginsburg, J., dissenting).
80 See the Fair Employment Protection Act, S. 2133, H.R. 4227, 113th Cong. (2014).
81 U.S. Equal Emp’t Opportunity Comm’n, Strategic Enforcement Plan FY 2013-2016, http://www.eeoc.gov/eeoc/plan/sep.cfm (last visited July 29, 2014).
82 Indeed, 70 percent of poll respondents who reported being sexually harassed never reported it. Berman and Swanson, supra note 32; see also A&C Statistical Reports, supra note 30.
83 See, e.g., Louise F. Fitzgerald et al., Why Didn’t She Just Report Him: The Psychological and Legal Implications of Women’s Responses to Sexual Harassment, 51 J. SOC. ISSUES 117, 123-24 (1995); Jane Adams-Roy & Julian Barling, Predicting the Decision to Confront or Report Sexual Harassment, 19 J. ORG. BEHAV. 329, 334 (1998) (describing a study finding that women who reported sexual harassment through for- mal organizational channels experienced more negative outcomes than those who did nothing); Theresa M. Beiner, Using Evidence of Women’s Stories in Sexual Harassment Cases, 24 U. ARK. LITTLE ROCK L. REV. 117, 124-25 (2001) (“[M]any plaintiffs’ lawyers would tell you that once an employee complains about discrimination on the job, he or she can usually consider that employment relationship over.”); Anne Lawton, Between Scylla and Charybdis: The Perils of Reporting Sexual Harassment, 9 U. PA. J. LAB. & EMP. L. 603, 605 (2007) (“Reporting Professor White [to university officials] stopped the [sexual] harassment, but also generated a pattern of conduct, some of which was clearly retaliatory in nature, which made my life as a tenure-track faculty member substantially more difficult than it had been prior to reporting.”).
84 Tamayo, supra note 26, at 7.
85 William R. Tamayo, Retaliation in Harassment Cases and Threats to Deter Reporting 12-17 (June 2013), http://www.americanbar.org/content/ dam/aba/events/labor_law/am/2013/06tamayo.authcheckdam.pdf
86 Id. at 2 (emphasis in original).
87 University of Texas Southwestern Medical Center v. Nassar, 133 S. Ct. 2517 (2013).
88 Id. at 2533.
89 Mark Bittman, Fast Food, Low Pay, N.Y. TIMES, July 25, 2013 at A23, available at http://opinionator.blogs.nytimes.com/2013/07/25/fast-food- low-pay/?_r=0.
Page 21 90 Id.
91 Annie-Rose Strasser, Why the Minimum-Wage Is a Women’s Issue, in Three Charts, THINKPROGRESS (Feb. 13, 2013, 5:30 P.M.), http://thinkprogress.org/economy/2013/02/13/1591791/minimum-wage-women-charts/.
92 Id.
93 See, e.g., Rest. Opportunities Ctrs. United, supra note 12; Living Off Tips, supra note 12.
94 See Living Off Tips, supra note 12.
95 Id.
96 Annie Lowrey, Raising Minimum Wage Would Ease Income Gap but Carries Political Risks, N.Y. TIMES (Feb. 13, 2013), http://www.nytimes.com/2013/02/13/us/politics/obama-pushes-for-increase-in-federal-minimum-wage.html?pagewanted=all
97 See the Fair Minimum Wage Act of 2013, H.R. 1010, 113th Cong. (2013), available at http://beta.congress.gov/bill/113th-congress/house- bill/1010; see also The Fair Minimum Wage Act, Democrats Committee on Education and the Workforce, http://democrats.edworkforce.house. gov/issue/fair-minimum-wage-act (last visited June 18, 2014).
98 See Nat’l Conference of State Legislatures, 2014 Minimum Wage by State, http://www.ncsl.org/research/labor-and-employment/state-mini- mum-wage-chart.aspx (last visited July 15, 2014).
99 Id.
100 Id.; see also Nat’l Conference of State Legislatures, 2013 State Legislation on Minimum Wage, http://www.ncsl.org/research/labor-and-employ- ment/2013-state-minimum-wage-legislation.aspx (last visited July 15, 2014).
101 Steven Greenhouse, Fighting against Wretched Wages, N.Y. TIMES (July 27, 2013), available at http://www.nytimes.com/2013/07/28/sun- day-review/fighting-back-against-wretched-wages.html.
102 Kirk Johnson, Seattle Approves a $15 Minimum Wage, Setting a New Standard for Big Cities, N.Y. TIMES (June 2, 2014), available at http://www.nytimes.com/2014/06/03/us/seattle-approves-15-minimum-wage-setting-a-new-standard-for-big-cities.html?_r=1.
103 The White House Summit on Working Families, U.S. Dep’t of Labor, http://www.dol.gov/wb/workingfamilies/ (last visited June 18, 2014) (announcing the Summit).
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