Sexual Harassment in the Workplace Assignment
Labor Studies Journal 2018, Vol. 43(4) 245 –262
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sagepub.com/journals-permissions DOI: 10.1177/0160449X18809432
Sexual Harassment in the Workplace: Where Were the Unions?
Abstract Unions have a mixed record when it comes to fighting sexual harassment, especially in cases that involve harassment by union members. Union responses to sexual harassment have been shaped by their position in labor markets that remain highly segmented by gender and race, with male-dominated unions playing a passive role vis-à-vis female targets of sexual harassment, and too often siding with male harassers.
Those responses have also been shaped by a legacy of sexism within the labor movement, and exclusion of women from the formal labor market, and from unions, and by a distinctive form of feminism exercised by women inside the labor movement, which focuses on women’s economic situation rather than on other social factors that keep women down. In the wake of the #MeToo movement, some unions faced their own internal harassment scandals.
Several unions have since adopted internal codes of conduct, and other approaches to better address harassment internally, and on the shop floor. While codes of conduct are an important element in changing the culture that permits harassment to persist, they are not enough. By authentically focusing on sexual harassment, unions would connect to the experiences of women in all workplaces. They would also increase their chances of growing.
Unions remain the most powerful voice for working people in America, and the best vehicle to create a transparent, accessible system that empowers those who suffer harassment in the workplace to stand up collectively and individually against violators. The moment demands intentional, well-resourced, genuine efforts from unions to do better. This article offers modest suggestions that unions could easily adopt.
Keywords unions, sexual harassment, workplace culture
Corresponding Author: Ana Avendaño, Email: email@example.com
809432LSJXXX10.1177/0160449X18809432Labor Studies JournalAvendaño research-article2018
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Harvey Weinstein, the once-powerful Hollywood mogul, was arrested on May 25, 2018 in New York City and charged with rape and sexual assault. Weinstein abused women for decades while evading responsibility. The front-page photograph of Weinstein in handcuffs, appearing confused and disheveled, and led by a police woman who exuded confidence as she perp walked him past a gauntlet of reporters is evidence that a fundamental shift in American consciousness about sexual harassment in the workplace has taken root.
Since the New York Times and the New Yorker exposed Weinstein’s extensive his- tory of violence against a long list of Hollywood A-listers and other women in the industry, the Times has kept a running list of high-profile men in various industries— entertainment, media, sports, politics, high tech, and the courts—who have been fired or forced to resign because of their conduct.
Seventy-one names appeared on that list as of February 8, 2018, just four months after the expose of Weinstein. The list identi- fies another 28 high-profile men who have been suspended, or suffered another form of punishment short of termination. It includes household names, some beloved in labor and progressive circles, like Senator Al Franken, and television host Charlie Rose (Almukhtar, Gold, and Buchanan 2018).
For working women, this reckoning is long overdue. Congress outlawed gender discrimination in the workplace more than five decades ago with the passage of the Civil Rights Act of 1964, although it was not until the mid-1970s that federal courts recognized that sexual harassment constitutes gender discrimination in violation of Title VII of the Act (Shie, Taylor, and King 2000).
In 1980, the agency charged with enforcing Title VII, the U.S. Equal Employment Opportunity Commission (EEOC), issued guidelines that established two general categories of sexual harassment: “quid pro quo” and “hostile environment” harassment. The former category involves a per- son in power—usually a supervisor or manager—conditioning an employment benefit in exchange for sex. “Hostile environment” harassment occurs when unwelcome con- duct, that is, “sufficiently severe or pervasive,” alters conditions of work and creates an abusive environment. In 1986, the Supreme Court adopted the U.S. EEOC’s defini- tions and guidelines (Meritor Savings Bank v. Vinson, 477 US 57 (1986)).
Yet, as an U.S. EEOC study published in 2016 shows, anywhere from 25 to 85 percent of women in today’s workplaces experience a form of sexual harassment1 (U.S. EEOC 2016). Why is the problem so rampant? Or, as the U.S. EEOC (2016, ii) asked, “with legal liability long ago established, with reputational harm from harass- ment well known, with an entire cottage industry of workplace compliance and train- ing adopted and encouraged for 30 years, why does so much harassment persist and take place in so many of our workplaces?”
The seismic shift in the public’s acceptance of what constitutes appropriate behav- ior in the workplace brought new urgency to that question. Analysts and academics were quick to point to the law’s deficiencies: Title VII covers too few workplaces; penalties are weak; liability does not reach into the echelons of power (Block and Gerstein 2017). Many pointed to a culture that shames and blames women who report harassment, keeping them silent. According to the National Women’s Law Center, 70 to 90 percent of women who experience harassment do not report it to their employers
(Raghu and Suriani 2017). Others pointed to private settlement agreements between harassers and their victims that contain language forbidding the victims from speaking about the harassment. Commonly known as nondisclosure agreements, those contracts allow perpetrators to buy the silence of survivors and—as the Weinstein case made very clear—allows them to continue abusing women (Levinson 2018). Indeed, power- ful men including Roger Ailes, Bill O’Reilly, Bill Cosby, Larry Nassar, and the current President of the United States have used nondisclosure agreements to prevent women from speaking out about their experiences.
Labor-friendly commentators responded to the nascent #MeToo movement by pro- moting unionization as the answer. “We are not going to solve the problem unless we address the profoundly undemocratic structure of most workplaces,” said one com- mentator, adding, “a union grievance procedure at least gives workers an opportunity to appeal to a neutral decision maker” (Strom 2017).
The AFL-CIO (2018) published an article on its website that argues, “[g]iven that sexual harassment is an abuse of power, typically by a male manager against female subordinates, having a union and collective voice strengthens a worker’s ability to stop harassment. A woman facing sexual harassment is not alone.” The problem with those arguments is that they are based on two flawed assumptions: (1) that victims of sexual harassment have access to union grievance procedures in all—or at least, most—unionized workplaces and (2) that harassers are, in most instances, the boss.
To the contrary, research shows that 60% of women who experience harassment on the job do so from their peers, while only 28% report harassment by a manager or supervisor (Careerbuilder 2018). In addition, unions have a poor track record of using grievance mechanisms or their power in the shop in favor of women who are harassed at work, especially if the harasser is a coworker. As former National Labor Relations Board Chairperson Wilma Liebman, a union lawyer, explained to Politico, sexual harassment “has been an ongoing problem for unions, especially those that were ini- tially heavily male. It’s been a hard issue to deal with” (Kullgren 2017). Professor Marion Crain, who studied all reported legal cases and arbitral opinions involving unions and sexual harassment between 1970 and 1995, concluded that
most unions contribute to women’s economic disempowerment by addressing sexual harassment in a manner that discourages women from acting collectively through their unions to combat such treatment in the workplace. This casts the union as simply another level of patriarchy for women unionists to contend with in the workplace, rather than as an ally. (Crain 1995)
Labor unions sit in a perilous moment in history. On June 27, 2018, the Supreme Court struck a blow to one of the institutional pillars of American trade unionism: its self-funding mechanism. In Janus v. American Federation of State, County, and Municipal Employees, Council 31, the Court ruled that the “fair share” fees that public sector workers represented by a union are required to pay for the collective bargaining work that the union performs on their behalf are an unconstitutional infringement of free speech rights. The Court’s action permits workers to receive services, benefits,
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and representation from unions without paying for them. Researchers at the University of Illinois at Urbana–Champaign estimate that allowing union members a “free ride” will reduce the union membership rate of state and local government employees by 8.2%, which could translate into a loss of 726,000 union members over time (Bruno and Manzo 2018). Of course, a weakened public sector in turn weakens the already anemic unionized private sector.
Unions would do well to focus their efforts on the real lived experiences of working people, and connect to their current members and potential members by being respon- sive and relevant to those experiences. Issues of equality—gender, race, immigration status, disability—should not be siloed into specialized committees within the struc- ture of the labor movement. Instead, they should be treated as core tenets of an agenda to grow and revitalize the labor movement.
By authentically focusing on sexual harassment, unions would connect to the expe- riences of women in all workplaces. They would also increase their chances of grow- ing. While most campaign literature encouraging workers to join a union focuses on the union premium in terms of wages and benefits, research shows that women vote for unionization when they see the union as responsive to their noneconomic needs, especially to issues that involve respect and dignity in the workplace (Mellor and Golay 2014). More importantly, given the post-Janus moment, “women appear to retain their membership when they perceive that the union is ‘making good’ on such responsiveness” (Mellor and Golay 2014).
Unions’ Complicated History with Sexual Harassment
Unions have a mixed record when it comes to fighting sexual harassment, especially in cases that involve conduct by union members. Unions stood as defendants or bystanders in the early cases that set the boundaries of what constitutes “hostile work environment” harassment, and how the law addresses that form of workplace discrimi- nation (Crain 1995). The most famous of those cases is Jenson v.
Eveleth Taconite Co.,2 the first class-action lawsuit litigating a case of workplace sexual harassment. Lois Jenson was one of the first women to work in the iron ore mines of northern Minnesota. Her painful and heroic story was memorialized in the bestseller, Class Action, and later fictionalized in the motion picture, North Country. In 1974, the U.S. EEOC and several mines in the area entered into a consent decree that guaranteed that 20% of jobs in production and maintenance would be set aside for women and racial minorities. Until then, blue-collar jobs in the mines, with the best wages and benefits in the area, were only available to men.3
Women were met with hostility and vituperation from the men in the Eveleth mine, who forcefully protected the mine’s “distinctly macho world view” (Bingham and Gansler 2002, 33). As Lois Jenson began work on her second day on the job, a male coworker walked past her, and without looking at her or breaking his stride said, “You fucking women don’t belong here. If you knew what was good for you, you’d go home where you belong” (Bingham and Gansler 2002, 14). The vitriol never dissipated.
In court, the women testified to what they had endured in their work lives: being groped, grabbed, pressured for sex, threatened with rape, and subjected to pornogra- phy and crass graffiti throughout the plant, as well as constant graphic conversations about sex. One woman testified that on three separate occasions she found “a gob of fresh semen” on clothes that she kept in her locker (Bingham and Gansler 2002, 47-48). Three years after the case was filed, a sign appeared and remained in the break room bulletin board that read in all capital letters, “sexual harassment in this area will not be reported. However, it will be graded” (Bingham and Gansler 2002, 132).
Violence in the plant intensified as women pressed their complaints. Women testi- fied that they were stalked at home and begun carrying weapons to defend themselves against physical attacks. A young man testified to “watching his mother pack her lunch box for work each day: a knife, mace, rope to tie shut the door to her work area, and food” (Grimsley 1996).
The women were members of United Steelworkers (USW) Local 6860, yet found no refuge in their union. When Lois Jenson turned to the union after years of being stalked and physically threatened by a supervisor, the union steward told her that he did not know how to file a sexual harassment grievance, even though he had been trained on how to file such grievances (Bingham and Gansler 2002, 106-107).
Another woman described in court that she was repeatedly exposed to graffiti about men who said they “sucked her cunt and her juicy red lips,” and when she complained about the graffiti to the union president, he shrugged and said, “Well, it’s true, isn’t it?” (Bingham and Gansler 2002, 262).
The women were conscious of complaining about conduct by supervisors, not that of their male coworkers or the union, because “to be a squealer was to betray the entire union movement, tantamount to becoming a company spy,” a sentiment that remains too common among women unionists today. Yet, their com- plaints only pushed the union to side more closely with the Company against them.
Union officials made no secret of their views about the women’s claims and which members deserved protection from the union. The union president testified: “It’s my job to represent the employees and the members of my union out there . . . and it’s not my job to give discipline. It’s my job to protect them from discipline” (Grimsley 1996).
The union’s response in the Eveleth mine was not an aberration. Unions played similar roles in other cases that established important legal precedents that signifi- cantly strengthened protections for women workers (Crain 1995). For example, the groundbreaking case that established the “reasonable woman” standard, which hostile work environment claims are evaluated on, Ellison v. Brady, was brought by a woman who was employed at the Internal Revenue Service and a member of the National Treasury Employees Union.4 Lois Robinson, a welder and union member, successfully sued her employer, Jacksonville Shipyards, securing for the first time legal recognition of the role that pornography plays in creating a hostile environment in violation of Title VII.5 In all of these cases, the women’s unions played no positive roles in their struggles, or in their legal victories.
Most recently, the New York Times expose of conditions at two Ford Motor Company plants in Chicago shows that the union’s attitude toward sexual violence in