Column: Beyond #MeToo, Time’s Up on sex harassment
Seeking justice for sex-harassed workers, especially low-income minority women, includes new Time’s Up fund.
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What do you do in Hawaii when you have been sexually harassed at work and can’t afford to lose your job, much less cover the costs of a legal case? Where can you go and feel protected from further retaliation?
In Hawaii, I have found in the years since 1986 that I have been doing sexual harassment cases, that these are the concerns of the survivors of these assaults, these harassments. It’s not that women don’t have the courage to speak out per se — rather, they are fearful. In fear for their own safety. In fear of ruining their career, being demoted or just straight up fired — basically, of not being able to support themselves or their family, especially if they are single women.
Another reason victims of workplace abuse abandon their claims is when access to court is blocked. Many of America’s leading companies use forced arbitration to silence over 29 million working women (Alexander J.S. Volvin, “The Growing Use of Mandatory Arbitration,” Economic Policy Institute, April 6, 2018). In arbitration the odds are often stacked against employees: The facts, proceedings and resolution are kept private.
Arbitration, a process largely controlled by employers, inherently puts employees at a disadvantage. Employers often slip mandatory arbitration clauses into take-it-or-leave-it employment agreements. Employees then sign these agreements without realizing their implications, and that they have “consented” to arbitrate any employment disputes.
Many workers cannot afford legal representation. When it comes time to resolve disputes, they are forced to use arbitrators often selected and paid by employers, in a process hidden from public view, whose resolution is confidential.
It is important that employees can take legal action against their employers for illegal employment practices, including harassment and discrimination, in a public forum like a court — and not behind closed doors in front of an arbitrator paid by the employer. Public allegations empower other workers to come forward and help ensure that employers can be held accountable for their actions.
As media reports over the last year have revealed, arbitration has helped hide the true extent of sexual harassment at many companies, and has helped shield serial harassers from accountability, sometimes for years.
It is further important that employees who have suffered the same abuses at a workplace can come together as a group and not be forced to resolve disputes in individual proceedings. Being able to take collective action as a class reduces the barriers to seeking justice and decreases the likelihood of disparate results.
Workers are less likely to face retaliation, are better able to find legal representation and share information and resources, gain strength from each other’s experiences, and obtain a uniform resolution that will benefit many workers.
Thus, one remedy for women to have less fear is to not be forced to give up their day in a public courtroom setting and not be forced to proceed behind closed doors in a secretive setting, as well as to be able to proceed as a class or collective action.
Several states, including New York and Maryland, have passed legislation to limit forced arbitration of sexual harassment claims. In Hawaii, we tried to have similar legislation regarding sexual harassment claims passed last session, but to no avail. These bills got stuck in conference committees, such as: House Bill 488/Senate Bill 1041 (no non-disclosure agreements), and SB 1048 (no mandatory arbitration and non-disclosure agreement).
Still, since 1986, many women have very courageously come forth and brought cases against their employers in spite of all the reasons not to. And now there is even actual financial support to do so.
Through the #MeToo movement, the Time’s Up Legal Defense Fund was founded almost two years ago, January 2018. It is administered by the National Women’s Law Center Fund to help survivors of sexual harassment and retaliation, especially low-income minority women, achieve justice. The attorneys throughout the country apply for the funds for their clients.
We have been fortunate to have several of our clients’ cases substantially supported by this defense fund.
Now women of all different income levels in Hawaii can go forward with their cases and not have fears about lack of ability to cover the costs.
Many, especially low-income women, agonize over whether to file a complaint about harassment because of fear of retaliation. Yet many courageously stand up because they want to — they must — confront this sexual terror.