Testimony of Fatima Goss Graves Vice President for Education and Employment National Women's Law Center

Meeting of January 14, 2015 - Preventing and Addressing Workplace Harassment

My name is Fatima Goss Graves and I am the Vice President for Education and Employment at the National Women's Law Center. Since 1972, the Center has been involved in virtually every major effort to secure and defend women's legal rights. I appreciate your invitation to testify before the Equal Employment Opportunity Commission (EEOC) on such a profoundly important issue, the breadth and depth of sexual harassment in the workplace.

Sexual harassment remains a serious problem affecting one out of every four working women in the United States, and particularly for women in some of the lowest paid fields and those in many high-wage, traditionally male fields, there are consistent reports of sexual harassment that go unaddressed. Women make up two-thirds of the nearly 20 million workers in low-wage jobs, and nearly half of those women are women of color.¹ Workers in low-wage jobs often have little bargaining power and can least afford to risk their livelihoods by reporting harassment. And women who have succeeded in breaking into higher-paid, nontraditional jobs have already overcome many hurdles, including cultural biases against their participation in nontraditional fields,² exclusion from training and mentoring opportunities, and for some, discrimination in hiring and promotions.³ Because of the significant barriers to entry, women who suffer harassment in nontraditional jobs may be especially unlikely to report harassment for fear of retaliation, ranging from further harassment, losing their jobs, or even having their physical safety put at risk.

With this background in mind, my remarks will begin by focusing on the rates of sexual harassment in the workplace overall, and in low-wage and traditionally male-dominated jobs. I will discuss the reasons why women are reluctant to report the sexual harassment they experience in some of these fields. I will then discuss the implications of the Supreme Court's decision in Vance v. Ball State for victims of workplace sexual harassment, the confusion across the legal landscape that the decision has created, and how the EEOC can be helpful in guiding a clearer interpretation of the law. In addition to clarifying the legal landscape for the women who manage to have their day in court, there is much that the EEOC can do, working with employers and employees, to reduce and prevent sexual harassment.

I. SEXUAL HARASSMENT REMAINS A SERIOUS PROBLEM FOR WOMEN IN THE WORKPLACE, PARTICULARLY FOR WOMEN IN LOW-WAGE JOBS AND TRADITIONALLY MALE-DOMINATED JOBS.

More than seventy-two million women work outside the home in the United States,⁴ comprising nearly half of workers in all occupations (47 percent).⁵ Women's paychecks are more critical to their families than ever - women today are the primary breadwinners in more than 41 percent of families with children.⁶ But for too many of these women, sexual harassment undermines their best efforts to provide for themselves and their families. In Federal Fiscal Year 2013, the combined total number of harassment charges filed with the EEOC and state and local Fair Employment Practices Agencies was over 30,000.⁷ More than 10,000 of these charges involved sexual harassment, and 82 percent were brought by women.⁸ But these charge statistics do not even begin to represent the extent of sexual harassment in the workplace. In a recent survey, 25 percent of women said that they have experienced sexual harassment at work,⁹ and yet 70 percent of women say they have never reported it.¹⁰ Whether suffering harassment from supervisors, coworkers, or third parties (such as customers), most victims of harassment are still suffering in silence.

A. Low-Wage Workers Face Particularly High Rates of Sexual Harassment.

Women comprise more than three-quarters of workers in the ten largest low-wage occupations (those that typically pay less than $10.10 an hour).¹¹ Women working in the restaurant industry, particularly women who rely on tips to supplement a sub-minimum wage, are among the lowest-paid workers and experience sexual harassment at high rates.¹² Women constitute 66 percent of the tipped occupations that receive a sub-minimum wage of $2.13 per hour that must be supplemented with tips - wages that leave many women working and living in poverty.¹³ And even though just seven percent of American women work in the restaurant industry, a review of EEOC charge data by the Restaurant Opportunities Center (ROC) United over an eleven-month period in 2011 found that nearly 37 percent of EEOC sexual harassment charges came from women in the restaurant industry.¹⁴ A more recent ROC report further illuminates this problem. That report described harassment as simply "an accepted part of the culture"¹⁵ for women working in restaurants. The median wage for restaurant workers "hovers" around $9 an hour, which includes tips¹⁶ - and overall rates of harassment reported are high. Sixty percent of women and transgendered restaurant workers report that sexual harassment is an uncomfortable aspect of work life,¹⁷ over half of whom describe sexual harassment as occurring on at least a weekly basis.¹⁸ This harassment stems from management (according to 66 percent of restaurant workers), co-workers (according to 80 percent of restaurant workers), and customers (according to 78 percent of restaurant workers).¹⁹

The culture of sexual harassment is exacerbated for women required by their employers to wear different, and more revealing, uniforms²⁰ from their male co-workers, and three times as many women report feeling uncomfortable in their uniforms compared to men.²¹ Women responded, for example, that their uniforms included having to wear "corsets . . . pencil skirts or shorts, no pants," and high-heels at least one inch high, compared to their male coworkers who wore slacks, button-down shirts, and comfortable shoes.²² One woman bartender explained that she was instructed to appear as "date ready," that she had to "flaunt" her body, and deal with the results.²³

More than half of women surveyed by ROC reported that they believe that a wage structure that left them dependent on tips forced them to tolerate inappropriate behavior that made them nervous or uncomfortable.²⁴ In fact, ROC reports that the very highest rates of sexual harassment for restaurant workers are experienced by women in tipped occupations, in states where the sub-minimum wage is $2.13 per hour.²⁵

Most restaurant workers who experience sexual harassment - in fact, a full majority - never report it, even though the harassment has a profound impact on their lives. According to ROC's findings:

Two-thirds of women workers felt they would face negative repercussions if they complained about or reported sexual harassment from management, and 46 percent felt there would be negative repercussions if they complained about or reported sexual harassment from co-workers. Seventy percent felt there would be negative repercussions if they complained about or reported sexual harassment from customers (nearly 63 percent of restaurant workers ignore sexually harassing behaviors from customers). A significant majority of women workers felt they would experience negative consequences, including financial loss, public humiliation, or job termination if they tried to report sexual harassment from management and customers.²⁶

Recent cases brought by employees in the retail industries further illustrate the types of harassment facing women working in low-paying jobs in stores - harassment that comes from customers, coworkers, and supervisors. For example, a lawsuit against the clothing company Urban Outfitters alleges that the company refused to act when an employee reported being physically grabbed and sexually harassed by a customer, and that she was mocked by the store's security guard when she learned that a customer had been taking "up-skirt" photographs as she walked up the stairs.²⁷ The retailer Fred Meyer recently settled with the EEOC, paying nearly half a million dollars for ignoring the sexual harassment that female employees reported continuously from a regular customer.²⁸ And Wal-Mart recently agreed to pay $363,419 to settle a sexual harassment case brought by an intellectually disabled employee who was allegedly fired after complaining of sexual harassment from a coworker.²⁹

Sexual harassment is also a serious problem for women working in the hospitality industry, due in part to "the unusual hours and conditions of work, the interactions of persons in the delivery of service, and traditional personnel practices in the industry."³⁰ Women who work as hotel employees report facing sexual harassment from coworkers,³¹ supervisors,³² and hotel guests.³³

And in agriculture jobs, women are underrepresented, comprising only 22 percent of the agriculture workforce, and they share a low hourly median wage with their male coworkers ($8.90).³⁴ A survey of 150 female farmworkers in California's Central Valley found that 80 percent of women farmworkers and laborers had experienced some form of sexual harassment.³⁵ Among farmworkers, harassment ranges from unwanted touching and remarks to sexual assault and rape in the fields, where harassers are often able to perpetrate their crimes in private.³⁶ Sexual harassment and assault are so common that farms in California have been referred to by farmworkers as the "field of panties" and farms in Florida as the "Green Motel."³⁷ And women who work in agriculture are often migrant workers, and whole families and communities of farmworkers migrate, work, and live together during the work season.³⁸ For migrant workers who are harassed, seeking justice can mean risking their livelihoods, putting their families at risk and potentially facing deportation.³⁹

B. Women in Higher Paid, Nontraditional Jobs Suffer High Rates of Sexual Harassment.

Although the pervasive nature of sexual harassment for women in low-wage jobs has been well documented, women in the better-paying jobs that are nontraditional for women also face high rates of sexual harassment, with few female co-workers to turn to help them address it.

Construction and extraction jobs are an important example. Those jobs typically offer women the opportunity to earn higher wages than in traditionally female occupations.⁴⁰ The median hourly wage for construction and extraction occupations was $19.55 in 2013, which is roughly double the median hourly wage for female-dominated occupations like home health aides, maids, housekeepers, and child care workers.⁴¹ Nonetheless, the number of women in construction and extraction has held steady for the past thirty years, not yet rising above 2.6 percent of the workforce.⁴² Women make up just 9.1 percent of construction workers, and 13.1 percent of miners.⁴³ Most of the women in these industries have few or no female coworkers, and face extreme sexual harassment and denigration.⁴⁴ A study by the U.S. Department of Labor reported that 88 percent of women construction workers experience sexual harassment at work,⁴⁵ more than three times the rate of women in the general workforce.⁴⁶ In fact, according to the Occupational Safety and Health Administration, the mining industry features the highest rate of sexual harassment complaints per 100,000 employed women.⁴⁷ In these industries, the harassment women may face intensifies the already high risks of physical injury, leaving some women afraid for their lives.⁴⁸

The problem of sexual harassment is exacerbated in environments where workers more generally are at risk for physical injury; reports of harassment facing women working in law enforcement and firefighting illustrates this point. Women account for 11.3 percent of sworn officers, 12.9 percent of sheriffs, and 16.1 percent of federal officers.⁴⁹ In these industries, too, women face disproportionately high rates of gender-based harassment. "[A]nywhere from 60-70 percent of women officers experienced sexual/gender harassment."⁵⁰ In one study, women reported being under constant scrutiny and surveillance by men, feeling pressured to "assimilate into male culture," to prove themselves, and to have to search for ways to stave off predatory officers⁵¹ as a regular part of the job - only 4-6 percent of women officers report sexual harassment.⁵² Women in law enforcement who have complained of harassment report that their departments stopped sending backup to assist them in violent situation;⁵³ without this and other essential protection, women reported leaving the force entirely.⁵⁴

Women in firefighting report facing similar perils resulting from sexual harassment on the job. According to census data, women account for only 3.7 percent of firefighters.⁵⁵ Shockingly, more than half of the nation's fire departments have never employed a woman firefighter.⁵⁶ Women firefighters face sexual harassment at rates that are similar to construction and extraction workers. More than 84 percent of women firefighters report experiencing gender discrimination in some form, including sexual harassment.⁵⁷ If they complain of harassment, female firefighters have reported facing comparably lethal retaliatory conduct as female police officers, such as male coworkers shutting off their water supplies.⁵⁸

II. CONFUSION IN THE CURRENT LEGAL LANDSCAPE FOR SUPERVISOR AND THIRD-PARTY SEXUAL HARASSMENT CLAIMS CALL FOR THE EEOC TO ISSUE CLARIFYING ENFORCEMENT GUIDANCE THAT ACKNOWLEDGES THE REALITIES OF THE WORKPLACE.

The harassment that persists in too many workplaces is further undermined by uncertainty in the law. The EEOC could provide important information with additional guidance that clarifies the legal landscape following the Supreme Court's decision in Vance v. Ball State. For the women who bring their sexual harassment cases to court, guidance from the EEOC will ensure that they have an even-handed chance at holding employers accountable for sexual harassment.

A. Supervisor harassment and the Supreme Court's Decision in Vance v. Ball State University.

In Burlington Industries, Inc. v. Ellerth⁵⁹ and Faragher v. City of Boca Raton,⁶⁰ the Supreme Court made clear that employers have the responsibility to try to prevent harassment from supervisors who abuse their power by harassing their subordinates and that employers are subject to vicarious liability for unlawful harassment by supervisors. In contrast, when one co-worker harasses another, the standard for holding the employer accountable is negligence. In such cases, the plaintiff faces the additional hurdle of proving that the employer "knew or should have known about the conduct and failed to stop it."⁶¹ The question of who is a supervisor is therefore critical to determining the appropriate standard for liability for harassment. Over the years the EEOC has provided important guidance on that point, determining that, for purposes of harassment liability, the term "supervisor" included both those who could take tangible employment actions and those who have the authority to direct their subordinates' daily work activities.⁶²

In Vance v. Ball State,⁶³ the Supreme Court limited the term "supervisor" to an employee who is empowered to take tangible employment actions against a victim of workplace harassment.⁶⁴ In a 5-4 decision, the Court defined tangible employment actions as the ability to "effect a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits."⁶⁵ This narrow definition of supervisor undercut protections for employees facing harassment in the workplace and, as a review of cases shows, has created additional uncertainty related to employer obligations and ignores the realities faced by many workers in low-wage jobs.⁶⁶

B. Even after Vance, Courts Have Defined "Supervisor" Inconsistently, Leading to Varying Interpretations of Vicarious Liability; Enforcement Guidance Should Clarify Vicarious Liability.

The Vance decision ignores the realities of the low-wage workplace where lower-level supervisors are extremely common and very often wield significant power over their subordinates.⁶⁷ Lower-level supervisors have enormous ability to affect an employee's work environment. They make decisions about who works the night shift and who works days, who cleans the toilets and who works the cash register, who can take a break and who cannot.⁶⁸ The victims know that if they try to stop the harassment a lower-level supervisor can retaliate by giving them an extremely difficult schedule, assigning them to less desirable job duties, or making them work in unsafe conditions.⁶⁹

Making matters worse, many courts have adopted a constrained interpretation of the Vance decision, which has led to plaintiffs who allege harassment being denied their day in court. And yet other courts have interpreted Vance more broadly. Plaintiffs, therefore, have little certainty about whether the court will find that their harasser is a supervisor, and employers lack clarity about the standards for liability. To develop consistent and predictable decision-making, the EEOC could issue guidance clarifying the Vance decision for employers and employees.

In total, since the Vance decision, we found 43 sexual harassment cases in federal courts that have been dismissed on grounds that the harasser did not meet the Vance definition of supervisor and the victim could not establish employer negligence as required in coworker harassment claims.⁷⁰ This is true even in cases where a lower-level supervisor used his authority to penalize an employee with schedule, hours or job responsibilities. For example, in McKinnish v. Donohoe,a fill-in mail carrier endured ten months of sexually explicit text messages and pictures from her route supervisor.⁷¹ Although the supervisor could not fire or demote McKinnish, he did determine which routes McKinnish was assigned to, and the number of hours she worked each week.⁷² Despite the harasser's ability to decide how many hours she would get and thus how much she would be paid, the trial court held that he was not a supervisor.⁷³ And because McKinnish did not report the harassment, she could not hold her employer liable under the negligence standard that applies to coworker harassment.⁷⁴ The court threw out her case. McKinnish was denied her day in court simply because the court narrowly construed the definition of supervisor.

In contrast to the outcome in McKinnish, some other courts have found that the ability to set an employee's schedule and hours could contribute to a finding that the alleged harasser had the authority to take tangible employment actions, and was thus a supervisor. For instance, in Lindquist v. Tanner, a district court in South Carolina held that a jury could find that an operations manager was a supervisor because he had the ability to determine whether the victim could transition to full-time employment and submit performance evaluations.⁷⁵ In that case, the operations manager not only allegedly used his authority to make unwanted advances toward Lindquist, but also bragged about the control he exerted over her.⁷⁶ The court also found that the alleged harasser "would have had significant, possibly determinative, say over Plaintiffs performance reviews, hours, and potential for promotion" and therefore that the employer may have effectively delegated supervisory authority to the harasser.⁷⁷

Courts likewise have failed to consistently consider whether an employer effectively conferred supervisory status on a lower-level employee. In Vance the Court made clear that if an employer relies on an employee's recommendations to make tangible employment decisions, then the employer may be vicariously liable for harassment by the lower level supervisor.⁷⁸ Although few post-Vance cases even discuss the concept of effective delegation, in at least six cases employees were able to proceed with their claims under an effective delegation theory.

For example, in Kramer v. Wasatch County Sheriff's Office, a sexual harassment case that included rape allegations, the Tenth Circuit held that the sheriff, who had actual authority to make tangible employment decisions, may have effectively delegated to the sergeant-harasser the power to make tangible employment decisions because (1) the sergeant, unlike the sheriff, interacted frequently with the plaintiff; and (2) the sheriff's recommendations and evaluations could influence and lead to tangible employment actions.⁷⁹ Because the sergeant's supervisory status could not be decided as a matter of law, the Tenth Circuit reversed the lower court's grant of summary judgment on the Title VII hostile work environment claim.⁸⁰

But in Stanley v. Northwest Ohio Psychiatric Hospital,⁸¹the harasser, whose title was "Nurse Supervisor," had the authority to begin disciplinary proceedings and have input into final disciplinary actions, and the court nonetheless found that he did not have the ability to take tangible employment actions and was therefore not a supervisor.⁸² The allegations in Stanley were that the harasser grabbed Stanley's stomach and breast and asked her inappropriate questions about her body on numerous occasions. Stanley's case was dismissed on grounds that her harasser was not a supervisor and she was unable to show employer negligence. The court did not engage in any analysis of whether the employer had effectively delegated supervisory authority to the harasser. The juxtaposition of Kramer and Stanley illustrates the inconsistency in lower courts' interpretations of the Vance decision.

To avoid further inconsistencies in lower courts' interpretations of the Vance decision and to prevent the courthouse doors from being further closed to victims of harassment, the EEOC could issue additional guidance interpreting the decision. Among other things, the guidance should explain what constitutes a "tangible employment action" also provide more information on the "effective delegation doctrine."

C. Post-Vance EEOC Guidance on the Negligence Standard and Remedies for Third-Party Harassment.

An employer is liable for harassment of co-workers if it was negligent in addressing the harassment; that is, if it knew or had reason to know about the harassing conduct and failed to stop it.⁸³ Robust enforcement of harassment under this standard is even more important in the wake of Vance, as supervisors who solely direct daily activities may be miscategorized as mere co-workers, and many more harassment cases are likely now to be analyzed under the negligence standard. Guidance on what constitutes employer negligence also would help remind employers of their continued responsibility to address harassment from non-employees.

Vance articulated factors for courts to consider when evaluating whether an employer was negligent in a coworker harassment claim,but courts have largely ignored these factors when determining whether to dismiss a claim. These factors include evidence that an employer failed to "monitor the workplace, failed to respond to complaints, failed to provide a system for registering complaints, or effectively discouraged complaints from being filed."⁸⁴ A review of post-Vance case law shows that only seven cases even discuss these factors. Nonetheless, all but one of those plaintiffs were successful in advancing their claims on a negligence theory.

Fear of retaliation also deters victims from reporting harassment from third parties, like customers. As previously noted, 70 percent of restaurant workers felt there would be negative repercussions - such as lower tips - if they complained about harassment from customers.⁸⁵ As a result, nearly two-thirds of restaurant workers ignore sexually harassing behaviors from their customers.⁸⁶ Restaurant workers are not alone. Retail workers, attorneys, and even librarians have reported similar experiences dealing with harassment from customers, clients, and patrons with the alarming frequency.⁸⁷ Too often, when workers do report third-party harassment, employers respond with apathy,⁸⁸ or worse, retaliation.⁸⁹ A 1999 rule issued by the EEOC states employers may be in violation of Title VII if they negligently fail to address harassment from third parties that they knew or should have known about.⁹⁰ A majority of federal appellate courts has adopted the EEOC rule by applying a negligence standard to claims of third-party harassment.⁹¹ Yet, there still remains some uncertainty on appropriate remedies for third-party harassment. Additional instructions from the EEOC to help guide employers in constructing those remedies would be helpful.⁹²

III. EEOC GUIDANCE CAN PLAY A CRITICAL ROLE IN REDUCING SEXUAL HARASSMENT AT WORK

Although sexual harassment is present across a range of occupations, recent studies suggest that women are especially vulnerable to sexual harassment where their work requires them to interact with and please third parties, such as customers and consumers, when their wages rely heavily on tips, and when they are under-represented in the field. Moreover, rates of formally reporting in both low-wage jobs and in many fields that are nontraditional for women are disproportionately low to the percentage of women who say they experience it.

There is ample room for the EEOC to provide workers with the tools to report sexual harassment and support employers in their efforts to comply with the law. First, the EEOC could initiate systemic discrimination investigations and, where appropriate, litigation in male-dominated industries, such as construction and mining, as well as low-wage industries where women workers face high rates of sexual harassment. By targeting industries with known patterns or practices that fail to prevent sexual harassment, a systemic approach can push employers with a national presence to adopt policies with stronger protections for vulnerable workers and encourage other companies in the same industry to follow suit. Additionally, because the EEOC can rely on agency data as well as individual charges to initiate an investigation, this approach may address harassment that goes unreported out of fear of retribution and acts as a barrier to women's entry into male-dominated fields.

For employers, there are two particular actions the EEOC could take to provide guidance and ensure accountability for sexual harassment either through their consent decrees or through proactive compliance materials. First, the EEOC could encourage employers to "take steps to address the actual causes of sexual harassment by keeping records on harassment complaints, implementing post-complaint procedures, periodically assessing and revising anti-harassment policies and procedures, and evaluate supervisors' compliance with the policies and procedures."⁹³ A recent report by Equal Rights Advocates provides additional details on these critical measures.⁹⁴ Second, the EEOC could create employer-focused trainings or manuals on sexual harassment that can be easily disseminated. This would be particularly useful if trainings were tailed to the specific occupations where workers are especially vulnerable to sexual harassment. The state of California recently adopted legislation that requires farm labor contractors to receive training on and demonstrate knowledge about protections from sexual harassment, and to train their supervisory workers about preventing sexual harassment.⁹⁵ Following this approach, the EEOC could produce materials to raise employers' awareness about sexual harassment in their general fields that would train them on how to respond to and prevent sexual harassment in the workplace. The EEOC has already begun similar programs for farm managers in Oregon and Washington to offer sexual harassment prevention training.⁹⁶

The EEOC can also play an important role in both providing support to workers experiencing harassment and providing tools for those seeking more information about how EEOC enforcement of Title VII can protect them from sexual harassment. For employees, regional offices could host information sessions on sexual harassment on a monthly or regular basis to educate women workers on their legal rights and coach workers on how to document their claims so the EEOC can investigate claims effectively; employee trainings implemented by the EEOC as part of consent decrees may provide a model that could be expanded.⁹⁷ These sessions could be offered at times to accommodate workers with varying and unpredictable schedules. These sessions could also provide ongoing support for individuals in similar situations, and facilitate an understanding of their rights under the law. Following the information session, attendees could meet one-on-one with EEOC officers to discuss their situations and get advice on how to address their concerns in the workplace. Although the group of women attending these sessions would be self-selecting, it could serve to provide women with the tools and a sense of support that could prompt additional reports of sexual harassment in their workplaces without fear.

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With an approach that clarifies the agency's interpretation of employer liability for sexual harassment from supervisors, coworkers, and third-parties, along with a bottom-up approach that reaches women workers directly, the EEOC can play a critical role in bringing sexual harassment out from the shadows, holding employers accountable, and empowering millions of women with the tools to feel safe and confident in the workplace.

Thank you for the opportunity to participate in this important meeting. I look forward to any questions.