The #MeToo reckoning triggered by the Harvey Weinstein scandal last year can cause whiplash. The hashtag unleashed a cacophony of voices: women telling their stories, mad as hell that men were still getting away with abuse, almost 30 years after I Believe Anita, the analog version of #MeToo.
Even women whose labor and suffering has been mostly invisible (farmworkers, housekeepers, janitors) finally drew attention. The serial toppling of seemingly invincible men from every industry produced euphoria and not a little schadenfreude. Their public ignominy, especially given that sexual harassment claims are routinely dismissed by the courts and rarely result in victory for survivors, would have been unthinkable just months earlier.
What's more, a recent tally in The New York Times showed that women replaced roughly half of the most prominent men who lost their jobs. I dared to hope that workplace behavior might finally catch up with the law, which recognized harassment as illegal discrimination more than three decades ago.
But the dispiriting reality is that the past year has seen only baby steps in the right direction. Women (and men) might be speaking their truth in record numbers, but the same (mostly) guys who for years have done nothing to stop harassment at companies large and small--retaliating against accusers, forcing them into secret arbitration hearings and
absorbing the cost of settling their claims--are still the ones in charge.
This was made obvious by the recent reporting on CBS' Les Moonves. In January, well into the #MeToo moment, he informed some members of the network's board of directors that the Los Angeles Police Department was investigating him for forcing a woman to perform oral sex, as well as exposing himself to her and throwing her against a wall. Those board members--at a network already caught enabling Charlie Rose's prolific misconduct for decades--did nothing. Even when the New Yorker published the first of two exposés about Moonves in late July detailing violent sexual abuse of six women, he kept his job, and segments of the board were defiantly supportive, with one member stating, "I don't care if 30 more women come forward and allege this kind of stuff."
Ultimately, according to recent reports, what finally sunk Moonves was his lack of candor toward the board. He may still get a $120 million severance package, the softest of landings for an alleged serial predator.
And while well-meaning men vowing to be instruments of change are welcome allies, they're not enough. The eloquent rage of Sen. Patrick Leahy (D-Vt.) and his male colleagues at the Brett Kavanaugh hearings, when allegations of sexual assault against the soon-to-be Supreme Court justice were considered, acted as a tonic. But with power firmly in the hands of those who cared more about a man's future success than a woman's past suffering, what did it get us?
The only way past these moments of despair is to remember: Change can happen. Sexual harassment didn't even have a name until 1975. Employers, specifically, can end the harassment on their watch, in their workplaces. And some employers truly do want to stop harassment from metastasizing. There is a virtual cottage industry of experts ready to revamp internal policies, procedures and training which, as a landmark U.S. Equal Employment Opportunity Commission report recently told us, all have the power to transform workplace culture, if they are more than window dressing.
As for employers that don't care to make those investments, the #MeToo movement has galvanized legislators, workers, consumers and shareholders to take matters into their own hands and make them care. Companies obsess over their bottom lines; if they choose not to root out harassment, then we can make that failure come at a steep cost.
One of the bluntest instruments is litigation. Fear of lawsuits and the negative press they generate serve as a powerful motivator. But plainly it's not had enough of a deterrent effect. Title VII of the 1964 Civil Rights Act, the federal law against workplace sex discrimination, applies only to employers with 15 or more workers. That leaves out domestic workers, employees of small businesses, and other vulnerable groups. The law also doesn't cover the millions of independent contractors, interns and other contingent workers. Venture capitalists who harass entrepreneurs seeking seed money and legislators who harass lobbyists and journalists operate outside the formal employer-employee relationship. Statehouses have made modest gains recently in improving coverage for these neglected workers, and a coalition of civil rights groups, including the American Civil Liberties Union (where I work), has called on Congress to enact similar changes in federal law.
Yet even where employees can sue, employers create barriers to justice. The Weinstein Company's aggressive use of nondisparagement and nondisclosure agreements (NDAs) rightfully came under scrutiny. There are two kinds of NDAs: a contract at the start of employment in which a worker agrees not to criticize or disclose wrongdoing at the company, and an agreement when an employer pays a worker not to sue or publicly disclose a harassment claim.
The former can violate federal labor law by silencing "concerted activity" among employees and has been outlawed by some states in the wake of #MeToo; some members of Congress have introduced a ban too. The latter kind puts a gag on victims. While many women want that invisibility, serial confidential settlements help employers hide serial misconduct. At the very least, these agreements should advise signers to get legal advice first and let them know that they still are permitted to share their experiences with government enforcement agencies.
Another egregious barrier to legal recourse is forced arbitration. Most employees would be shocked to learn that when they were hired, they signed away their right to go to court if they experience harassment or other discrimination. But that's the case for more than half of private-sector employees (including those at 80 percent of Fortune 100 companies). Arbitration doesn't use the same rules of evidence as judicial proceedings, and arbitrators typically are paid by the employer, skewing impartiality. These decisions are neither appealable nor public, so they help protect bad actors the same way NDAs do.
Given arbitration's increasingly bad name, employers can hope for a reputational boost by renouncing it, as Microsoft recently did in cases of alleged harassment, with Google following suit after its employees' global protests.
Google's employees aren't the only ones who have taken to the streets. In September, McDonald's workers in six cities conducted a one-day walkout to protest rampant sexual harassment, already the subject of litigation. Such tactics aim to make customers pause before grabbing a quick meal.
A formal model of worker-driven collaboration with consumers could do incalculable good if adopted more widely. The Fair Food Program, launched in 2011 in the tomato fields of Florida by the Coalition of Immokalee Workers, targets degrading work conditions, including brutal sexual abuse. It enlists the consumers of big agriculture--the fast-food restaurants and supermarket chains that spend hundreds of millions of dollars on Florida tomatoes every year such as Taco Bell, Whole Foods and Walmart--as enforcers against such abuses. The buyers pledge to pull their business from farms that violate a worker-authored code of conduct, and the workers are the monitors. An independent body conducts investigations and unannounced audits of participating farms, with 80 percent of complaints resolved in less than a month. The consequences of violations are swift and strict: Harassers are fired and temporarily banned from re-employment at participating farms, while growers that fall consistently short face probation or suspension from the program.
The results are stunning. Since the program's inception, no cases of rape or attempted rape have been reported, and only one supervisor has been found to have engaged in physical harassment since 2013. During last year's growing season, not a single sexual harassment complaint was lodged at more than 70 percent of participating farms. What's more, only 15 percent of the farms where complaints arose saw evidence of retaliation against accusers. Given the exploitative starting point of big agriculture, the transformation is nothing short of miraculous.
The Fair Food Program's model now covers several agricultural products across half a dozen states. Such success is replicable in other consumer-driven industries. In recognition of the power consumers wield, in September the American Hotel & Lodging Association launched an initiative under which members pledge to undertake anti-harassment measures such as providing panic buttons to housekeepers. Hilton, Hyatt, Marriott and Wyndham are among the hotels touting their participation in an effort to win customer loyalty.
Consumer backlash (or the fear of it) also is a powerful motivator for the true boss of any company: its board of directors. As Weinstein, CBS, Google and other recent examples show, boards long have enabled wrongdoers. But that stems from a calculation that protecting a star--a Matt Lauer, a Travis Kalanick--will reap greater dividends than ditching him. Consumer activism can make them reconsider that impulse and take action; and if they don't, shareholders are the ultimate potent constituency.
This year, Twentieth Century Fox paid $90 million to settle a lawsuit brought by shareholders challenging the company's spending $50 million in just one year to settle harassment claims. The company created a novel entity to oversee anti-harassment efforts, the Fox News Workplace Professionalism and Inclusion Council, comprising internal HR executives plus four independent experts, including a former federal judge. Other companies facing shareholder lawsuits over their mishandling of harassment allegations include Wynn Resorts (with no fewer than six cases stemming from its millions of dollars in payouts to settle claims against former CEO Steve Wynn) and Nike (following the filing of a class-action sex discrimination lawsuit).
None of these strategies is a panacea. Eradicating on-the-job harassment requires wholesale shifts in how we approach gender, sexuality, power and opportunity, beginning with how we teach kids to navigate those forces long before they ever earn a paycheck. This is generations-long work, and it will not progress in a straight line.
But untold numbers of women have taken the painful step of coming forward and making the world listen to them. Now it's up to the rest of us to make sure they've not done so in vain.
Gillian Thomas is a senior staff lawyer with the ACLU Women's Rights Project.
Editorial on 12/16/2018