“If the past year has taught us one thing,” says National Organization for Women (NOW) president Toni Van Pelt, “it is this: that women are powerful… and women are organizing to fight back against people and entities that try to strip them of their rights and their humanity.”
Van Pelt was speaking at the Enough Is Enough Summit and Congressional Briefing in Washington, D.C., on April 25—sponsored by NOW, the Feminist Majority Foundation (FMF), Legal Momentum, the National Congress of Black Women, Unite Here, Alianza Nacional de Campesinas and the National Council of Jewish Women, and hosted with Rep. Lois Frankel (D-Fla.), chair of the Democratic Women’s Working Group.
The summit brought together a diverse group of women seeking to capitalize on the heightened awareness of sexual harassment and assault inspired by the courageous women who have come forward with their stories. Workers from across industries—from farmworkers to domestic workers, hotel workers to women in public policy— along with feminist leaders and Congress members brainstormed and collaborated on an agenda for concrete legislative and social change.
The women’s movement is “pushing a proactive vision of what we want,” says Gaylynn Burroughs, FMF policy director. This vision centers on bolstering federal and state laws against sexual harassment in the workplace and at schools and universities, and winning congressional reauthorization of a strengthened Violence Against Women Act. Below are nine legislative and policy changes feminists activists, lawmakers and organizations are discussing to address workplace discrimination, including sexual harassment.
#1: Cover all workers.
“Any worker who is working at a place where there is sexual harassment should be covered by federal law,” insists Mónica Ramírez of the women farmworkers’ advocacy coalition Alianza Nacional de Campesinas. But many women, including domestic workers and some farmworkers, are not protected from sexual harassment because Title VII only applies to employers with 15 or more employees and does not cover independent contractors—freelancers and people who work in the ever-growing gig economy.
Plus, agribusinesses often misclassify women farmworkers as independent contractors to evade the law, Ramírez says, or they pay women’s salaries to their fathers or husbands, depriving the women of legal protection from harassment as well as many benefits like Social Security and workers’ compensation.
#2: Change the legal standard for proving sexual harassment.
The Supreme Court ruled in 1986 that sexually harassing behavior must be “severe or pervasive” in order to violate Title VII. Even worse, under Title IX, women must prove that the harassment was severe and pervasive. Courts have interpreted this vague standard in varying ways, in some cases dismissing claims involving “really egregious” behavior, says Sunu Chandy of the National Women’s Law Center.
#3: Remove caps on punitive and compensatory damages.
Under Title VII, money damages to victims are capped at $50,000 to $300,000, depending on the size of the employer. The cap should be lifted entirely so that damage awards can be based on the harm done, not on the size of the employer that’s responsible.
#4: Extend the time to file a complaint.
Federal law requires that Title VII complainants file their case within 180 or 300 days of when they’ve been harassed or assaulted. That just isn’t enough time for survivors to process their experience, decide to file a case and find a lawyer.
#5: Make employers responsible for harassment by any supervisor.
The Supreme Court has narrowly defined who is a supervisor, making it much harder to prove a case against a boss who controls the daily work environment but lacks the authority to hire and fire employees. Employers should be fully responsible for harassment by all supervisors.
#6: Hold harassers personally liable.
Title VII also holds only the employer liable, not the harasser himself. Women’s rights organizations are pushing to expand the law to create direct and personal accountability for the individuals responsible.
#7: End mandatory arbitration and collective-action waiver clauses.
Employers try to preemptively silence workers through forced arbitration clauses in employment contracts, which today prevent more than 60 million workers from filing complaints in open court. “What we know about mandatory arbitration is that it favors employers,” says civil rights attorney Debra Katz. “All the research shows that employers get a better shake when they go to a confidential system of mandatory arbitration where there is no record and no public transparency.” And no wonder, considering employers choose and pay for the arbitrators who decide the cases.
Employers have also been requiring employees to sign clauses that forfeit their right to join together in class-action lawsuits, effectively preventing them from proving the “pervasive” nature of the workplace harassment. On May 21, the Supreme Court ruled that mandatory arbitration and collective action-waiver clauses are enforceable—all the more reason the law must be changed. (Justice Neil Gorsuch, President Donald Trump’s appointee, wrote the decision and provided the deciding vote.)
#8: End pre-dispute nondisclosure requirements.
Another way employers try to silence women is through confidentiality agreements— otherwise known as nondisclosure clauses or NDAs. These come in two varieties: those signed as a condition of employment and those that are part of the settlement for a discrimination claim. Katz contends that pre-dispute confidentiality agreements are not enforceable. Employees who have experienced or witnessed sexual harassment or assault in the workplace always have the right to report this illegal behavior to the Equal Employment Opportunity Commission or to the police. Pre-dispute nondisclosure clauses confuse and intimidate women from exercising their rights, says Katz, so they should be prohibited.
The advocates present at the summit noted that NDAs that are part of legal settlements, on the other hand, must remain available when they are mutually beneficial to both parties. They increase the likelihood that employers will settle, and many women want confidentiality to avoid being blacklisted on the job market.
#9: Increase accountability and transparency.
Businesses and governments should be required to disclose harassment settlements to the public. “Sunlight is the best disinfectant,” Rep. Carolyn Maloney (D-N.Y.) told attendees at the summit. Sen. Elizabeth Warren (D-Mass.) and Rep. Jacky Rosen (DNev.) agree: They introduced the Sunlight in Workplace Harassment Act, which would require public companies to disclose settlement data to the Securities and Exchange Commission.
This is an excerpt from a feature in the Summer 2018 issue of Ms. on sexual harassment. Become a Ms. member today to read the rest.