Facing #MeToo at offices and eateries

The future of workplace sexual harassment prevention

By NATALIE JEFFERY, ALEXIS TERRY & LEAH VOLPE
Baltimore Watchdog Staff Writers

What this story covers
The #MeToo movement has inspired many people to come forward about their experiences with sexual harassment and assault. It’s all too common in workplaces across the country — and organizations are searching for solutions.
Why it matters
Organizations and advocates such as the ones in this story are making efforts to spread awareness, change policy, and prevent harassment altogether so that workplaces are safer for future employees.

Since the #MeToo movement gained widespread attention in 2017, publicity of sexual harassment and assault cases has increased — especially involving prominent actors, Hollywood moguls, journalists and politicians.

Attention focused on these high-profile cases often comes at the expense of coverage of widespread harassment in offices across the country and in the restaurant industry.

In this story we hear from victims of sexual harassment in the workplace, and examine the problem and how a variety of people and organizations are seeking to find a solution.

First, a definition:

The U.S. Equal Employment Opportunity Commission (EEOC) defines sexual harassment as any unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature that interferes with the victims work environment.

Stories of sexual harassment in the workplace

Organizations making a difference

National Women’s Law Center

The National Women’s Law Center is a legal nonprofit that works on a host of issues that affect women and girls. In January 2018, NWLC announced the creation of TIME’S UP along with the TIME’S UP legal defense fund. TIME’S UP connects women from all over who experience or have experienced workplace harassment with legal professionals and occasionally media specialists. NWLC has highlighted key policy initiatives to strengthen workplace sexual harassment protections and accountability:

• Extending protections to more employees
• Strengthening employees’ ability to hold employers and individual harassers accountable
• Redressing the harm to victims of harassment
• Restricting employer-imposed secrecy and resorting victims’ voices
• Requiring sexual harassment prevention strategies
• Eliminating the tipped minimum wage

For the past year-and-a-half, Andrea Johnson, senior counsel for state policy, along with her colleagues have assisted states with creating and re-working their sexual harassment laws.

Johnson said there are three areas that are key for states to make improvements with workplace harassment. Transparency between employers and their associates is important because employers use legal tools to sweep harassment under the rug. One example is nondisclosure agreements or clauses and settlements in employment contracts. Nondisclosure agreements often come in during a settlement between the employer and the victim to prevent victims from speaking out publicly about the harassment and settlement that took place. In other cases, employers include clauses in their employment contracts that prohibit victims from speaking about workplace harassment and other workplace violations.

The NWLC is working to create more transparency by partnering with legislators to limit and prohibit the use of contractual provisions that restrict employees’ ability to speak out on harassment as a condition of employment. The NWLC recognizes the need for a federal remedy such as the Arbitration Fairness Act, or the Ending Forced Arbitration of Sexual Harassment Act to limit arbitration clauses in the states.

Employers are asking themselves, “how do we keep this from happening here?” Johnson said. She highlights trainings on harassment and bystander intervention as key parts of prevention.

The tactic of telling people not to sexually harass because it is illegal often does not work, according to Johnson. Instead, the live and interactive approach to training helps engage employees and supervisors. This is accomplished by taking away generic training and implementing training that allows employees to see sexual harassment in the context of their workplace to help them better understand their rights and responsibilities.

“Trainings that are compliant-focused aren’t effective because people need to have a better understanding of what harassment looks like and the many forms it takes,” Johnson said.

Since the MeToo movement began, there has been a “night and day shift” in the energy coming from state legislators to work on policy surrounding sexual harassment, Johnson said. Californians have been among the most active in the movement of eliminating harassment in the workplace. In 2016, the state amended a law that prohibits the use of nondisclosure agreements in settlements of felony offenses. The amendment included the prohibition of these agreements in non-felony sexual crimes as well. In addition, of 27 states that require mandated sexual harassment training, only three of them — California, Connecticut and Maine — require employers in private sectors to provide workplace sexual harassment training.

“Employers are being pressured by the movement to really do more,” Johnson said.

Johnson said it’s important to realize that the movement is not just focused on sexual harassment, but all forms of harassment because many people face intersectional harassment, where they are being harassed based on their race and sex.

The BE HEARD in the Workplace Act was introduced in Congress by 19 Senate Democrats and four House Democrats in April 2019. This bill, which comes as one of the biggest advances since the rise of the #MeToo movement, offers an array of reforms to prevent and address all forms of workplace harassment and discrimination, such as:

• Extending protections against harassment and other forms of discrimination to more workers;
• Removing barriers to access to justice, such as short statutes of limitations and restrictively interpreted legal standards;
• Promoting transparency and accountability by limited the use of confidentiality agreements that silence workers; and
• Requiring and funding efforts to prevent workplace harassment and discrimination

Because sexual harassment is often intersectional along the lines of race, class and gender, Johnson recognizes that just covering sexual harassment does not fully give a victim justice if they are being harassed based on other parts of their identity.

Just recognizing sexual harassment makes any law “impractical and doesn’t recognize the reality of people’s lives,” Johnson said.

Restaurant Opportunities Centers United (ROC United)

[pullquote]“Tipped workers are pressured to be okay with sexual harassment because they are concerned about getting the tip they need to survive.” — Sophia Miyoshi, ROC United[/pullquote]

ROC United aims to help improve the lives of restaurant workers through training and placement programs, access to legal services, and engaging employers and consumers to help improve working conditions and legislation. Through this work, it has been able to act as an ally to restaurant workers who experience sexual harassment.

Founded in 2008, ROC United’s mission is to improve wages and working conditions for workers in the restaurant industry—like misappropriated tips. Misappropriation of tips occurs when an employer withholds tips from an employee or does not pay the difference if tips do not equal the non-tipped minimum wage. Since its establishment, the organization has won workers more than $10 million in misappropriated tips, wages and discrimination payments, and influenced policy changes on local and federal levels.

Sophia Miyoshi, lead organizer of the D.C. chapter of ROC United, said her chapter helped organize and participated in the One Fair Wage campaign, which promotes the increase of the sub-minimum tipped wage to the full minimum wage. Sub-minimum tipped wage is the minimum wage that tipped workers must receive in addition to their tips. Statistics show that restaurant workers with a tip-based income are far more likely to experience sexual harassment from customers. If workers are reliant on a tip for income, they will be likelier to withstand more harassment because they are reliant on the goodwill of customers compared to a non-tipped worker who is already promised a set income.

This is highlighted best by $2.13 states, in which the sub-minimum wage is $2.13, the lowest possible. ROC United found that women working in these states are twice as likely to experience sexual harassment as women in states that pay the same minimum wage to all workers.

[infogram id=”subminimum_map-1ho16vwwkoz72nq?live”]

In seven states, One Fair Wage has successfully helped pass legislation that has eliminated the sub-minimum wage, ensuring that all workers are now making full minimum wage. In 2016, the ROC United D.C. chapter campaigned for Initiative 77 , which would have increased the tipped wages from $3.89 to $5 and non-tipped minimum wages from $12.50 to $15. The initiative was repealed in October and the Tipped Wage Workers Fairness Amendment Act was introduced. This act will keep the minimum and sub-minimum wages where they are as well as include provisions to address sexual harassment in the restaurant industry.

ROC United believes the best way to address sexual harassment in the restaurant industry is increasing the minimum wage.

“Tipped workers are pressured to be okay with sexual harassment because they are concerned about getting the tip they need to survive,” Miyoshi said.

Research shows that nearly 80 percent of female workers have experienced sexual harassment from customers and coworkers.

In addition to legislative activism, Miyoshi said ROC United can act as a mentor to victims of sexual harassment.

“ROC can help empower people who want to take action, confront their bosses and rally with coworkers,” said Miyoshi. “Rallying with your coworkers can be even more powerful than filing a complaint.”

Miyoshi emphasizes the importance of knowing what the options are in these challenging situations. Many survivors may not be aware that ROC United can provide free legal service, job relocation and job training programs.

“When it comes to sexual harassment it’s extremely difficult and case dependent,” Miyoshi said.

Vantage Point

Understanding a workplace from a coworker’s point of view is crucial when discussing sexual harassment with employees.

Morgan Mercer, CEO of Vantage Point, a company that creates training platforms, wanted to create an experience for employees in which they are confronted with a situation of sexual harassment through a virtual reality headset. Mercer felt she needed to change the stigma or fear surrounding these issues with an innovative approach to get people talking.

Vantage Point’s program trains employees to practice reporting an incident of sexual harassment that they’ve witnessed through the virtual headset. Going forward, Mercer plans to add interactive voice components where the users can speak up during confrontation.

Mercer came to the solution of virtual reality training after researching about Post Traumatic Stress Disorder (PTSD). Researchers began treating the mental health condition through virtual reality, allowing individuals to confront the problems head-on with no real danger.

An alarming 94 percent of sexual violence victims experience PTSD beginning as early as two weeks after the incident, according to a study by Brit + Co. Mercer.

“That’s what is so powerful is that you have the ability to quite literally experience things that you would never otherwise have the opportunity to recognize. You otherwise could never step into the shoes of somebody experiencing that or step into a bystander’s shoes of somebody watching that,” said Mercer in an interview with CBS News Radio. “You have the ability to with this technology. It creates an increased sense of awareness. But it also allows you to actually practice responding to these situations which are really high-stake in a really safe environment where you can truly see how your actions impact others but you can do that without the negative consequences of that playing out in real life.”

Founded in 2017, Vantage Point gives employees the opportunity to correct wrongful behavior before it affects their job, and more importantly how it affects others in a no judgment environment.

The end result for Mercer is for people to become uncomfortable when shown these situations and change the way they are handled in a corporate culture by bystanders and leaders.

“We’re excited, and this is just another step to deliver on our vision. With the support we need behind us, we’re excited to deliver a product that surpasses everybody’s expectations, and really set the standard in the next frontier of enterprise, diversity and inclusion, and anti-sexual harassment training,” said Mercer in an interview with PRNewsWire. “This is just the beginning, and we’re looking forward to introducing the world to a new way of thinking about how life, social interactions, learning and development, and behavioral change can better be augmented by technology.”

People making a difference

Toni Bowie

Toni Bowie’s passion for discussing inclusion, diversity and sexual harassment began when she worked in higher education as an associate dean. As Bowie honed her training, counseling and advising skills, she founded MaxLife LLC, an organization that works to create safe spaces for workforces to communicate topics and issues.

Bowie explained the MaxLife training process (she refers to training as a conversation or workshop). First, a safe space is created so that clients can feel comfortable sharing personal information. All participants are required to agree with their “Safe Space Guidelines” that include confidentiality, appreciating vulnerability, how we show respect, being non-judgmental, staying engaged and more. Then consultants utilize a variety of learning methods such as assessments, business cases, group discussions and supportive interactive exercises lasting between two to three hours.

“We hope for companies to call MaxLife before they’re aware of an incident of sexual harassment, but unfortunately many companies often wait until something happens,” Bowie said.

Since the #MeToo movement, she has been able to use more timely examples of sexual harassment in the workplace. This has been the biggest change in their training. More research is being prepared and presented to clients.

The training educates employees on the myths and facts surrounding sexual harassment, its overall harm, and the different forms it can take-physical, verbal and nonverbal. Bowie believes educating people on this topic is a critical first step to making a difference.

“We uncover the negative impacts that a sexual harassment claim has on an organization, the work environment, the accused, and of course the person who made the claim,” Bowie said. “Everyone loses.”

Bowie emphasized that employers are required to provide a safe workplace for employees, part of that being providing a sexual harassment free environment.

“Whether good, bad, ugly, or indifferent we need to know how we affect other people,” Bowie said.

Bowie hopes clients cone away with higher self awareness.

Cathy Harris

Many sexual harassment cases will never be reported, let alone prosecuted. Out of the estimated 5 million people who experience sexual harassment at work every single year, roughly 9,200 of those people file a complaint with the U.S. Equal Employment Opportunity Commission of state agencies, based on national survey data from the University of Massachusetts, Amherst.

Cases of sexual harassment that are brought to light by employees are often settled outside of court between the harasser and victim before any administrative trial with lawyers involved, said attorney Cathy Harris. In order for zero tolerance of any sexual harassment to become possible, it is important to first understand the flaws of the system in which these incidents occur.

In a study conducted by the U.S. Merit Systems Protection Board (MSPB), approximately one in seven federal employees were victims to one or more of the sexual harassment behaviors (sexual coercion, unwanted sexual attention, gender harassment) from 2016 to 2018. Women were more than twice as likely as men to experience sexual harassment, according to the MSPB.

As the chair of the sexual harassment and sexual orientation, transgender and LGBT practice at Kator, Parks, Weiser and Harris, PLLC, Harris is familiar with the concerns that come with working within a federal government agency or corporation. These concerns include non-disclosure agreements and arbitration clauses that employees may be required to sign at the condition of employment.

An NDA agreement signed by an employee restricts them from speaking out about what they’ve experienced. It allows the perpetrator of this harassment to continue working in a corporate environment without facing consequences. The individual can be placed in a different company where the employer will have no knowledge of the previous record.

“There’s this attention now to what we’ve always called ‘passing the trash’ which is firing an alleged harasser and not talking about that,” Harris said. “When that person applies to work for another company or another federal agency, the new employer doesn’t know about their past because of an NDA or their policy is not to provide information about that person other than name, dates of employment and last salary.”

Employees may also be required to sign arbitration clauses, which permits them from taking the issue to court or having a public trial with a jury. Employees must go through private arbitration, which is confidential.

Harris wants to see more cases with NDA agreements brought to light and shared so action can be taken.

“Since there’s been so much publicity, a lot of companies are telling employees that signed NDAs and have mandatory arbitration clauses that they’re not going to require them to abide by those clauses,” Harris said. “They’re understanding the necessity of having a public airing of these issues and it’s not a good PR move to keep it a secret.”

As a member of the National Employment Lawyer Association (NELA), the country’s largest professional organization of lawyers advocating for employment rights, Harris is no stranger to advocacy for employment rights and believes change of policy and corporate culture is possible but it may come at the cost of the companies.

Unfortunately, since the general public has no knowledge of NDA agreements and the problems they arise, there is little to no progress extinguishing these documents in federal workplaces. The majority of the successes happen on an individual basis.

“I think nothing is going to change until companies stop hiring [employees] who are sexually harassing people,” she said. “When people start realize it’s going to affect their economic livelihood and when corporations understand it’s going to affect their profit margins, that’s when there will be a change.”

Things you may not know

• Nearly two-thirds of college students experience sexual harassment.
• Eighty-one percent of women and 43 percent of men say they have experienced some form of sexual harassment or assault in their lives.
• The top five most frequently selected forms of sexual harassment and assault by gender are:

Women:

1. Someone whistling, honking, making kissy noises, “Pssst” sounds, or leering/staring aggressively at you. (65%)
2. Someone saying things like, “Hey Baby,” “Mmmm Sexy,” “Yo Shorty,” “Mami/Mamacita,” “Give me a smile,” or similar comments in a way that is disrespectful and/or unwanted and/or made you feel unsafe. (59%)
3. Someone purposely touching you or brushing up against you in an unwelcome, sexual way. (51%)
4. Someone calling you a sexist slur, like “Bitch,” “Slut,” “Cunt,” “Ho” or “Thot.” (46%)
5. Someone talking about your body parts inappropriately or offensively (such as your legs, crotch, butt, or breasts), saying sexually explicit comments (“I want to do BLANK to you”) or asking inappropriate sexual questions. (43%)

Men:

1. Someone misgendering you or calling you a homophobic or transphobic slur, like “Fag,” “Dyke,” or “Tranny.” (17%)
2. Someone purposely touching you or brushing up against you in an unwelcome, sexual way. (17%)
3. Someone repeatedly texting or calling you in a harassing way. (15%)
4. Someone electronically sending you or showing you sexual content without your permission, such as over email, snapchat or Facebook or on their phone or computer. (15%)
5. Someone whistling, honking, making kissy noises, “Pssst” sounds, or leering/staring aggressively at you. (14%)

Types of political action

[infogram id=”sexual-harassment-1h7j4d9jompd2nr?live”]

Ways to help your employees

Olivia Olenberg, The Singleton Law Firm (Maryland employment lawyer)

Olivia Olenberg is a legal assistant for John Singleton, a Maryland employment lawyer. A typical day for Olenberg involves conducting multiple intake calls for clients who suspect they have experienced some sort of discrimination in their workplace. She deals with an array of issues, but one that particularly stands out for her and is the most difficult is those of sexual harassment.

Olenberg joined the law group in September 2016 shortly before the rise of the #MeToo movement.

“It was like night and day,” said Olenberg as she describes handling sexual harassment cases before and after #MeToo. Despite having to keep her composure through these intakes, she describes them as the most rewarding.

“Sometimes I’m the first person these people are telling their story to,” said Olenberg. “It’s difficult but necessary.”

Elyse Shaw, study director at the Institute for Women’s Policy Research

Elyse Shaw, study director at the Institute for Women’s Policy Research, has held various positions for the seven years she’s been an employee. Her most recent position has led her to work and manage the status of women in states projects that include collecting county level and national level data on a variety of topics like women’s earnings, poverty, health and well-being, and reproductive rights.

As the dedicated member of IWPR who acts as an information resource on women’s issues, Shaw wants to use research and data to give people the best information available and highlighting the areas where progress needs to be made.

“We don’t really know if it’s a lack of training or if it’s having the wrong kind of training or what it is that is feeding into slow movement on this issue,” Shaw said. “I think the fact that we don’t have the research around it is an indication of the fact that it hasn’t been prioritized in a lot of areas because it’s a complicated issue. Focusing on the research perspective, figuring out what works and what doesn’t work is really a priority.”

Shaw said that diversity training can been positive and impactful for changing opinions about others in the workplace.

“What we’re finding is that you have to have full buy in from the top and intentional communication about it,” Shaw said. “Obviously, you want the comprehensive anti-harassment policies but you also have to have the power behind it.“It can’t be you have the policies and you don’t talk about it. It has to be communicated to your employees frequently. You have to show that you are going to be proactive about addressing these issues so it’s not just responding to claims when they come up. It should be clear what the procedures are. It should be clear what the discipline would be and being consistent no matter who the employee is that perpetrates it no matter what level of the organization.”

Paula Brantner, CEO of PB Work Solutions

After working as a lawyer for more than 25 years, Paula Brantner wanted to create a company that would combat the growing number of sexual harassment incidents in the workplace. When contacted by a corporate-level organization, Brantner works to inform the employers of the current local, state and federal laws and statutes in place for sexual harassment, revises their current sexual harassment policies, and helps to pinpoint a new approach to training after a full analysis of the employees and work environment.

Below is a short question-and-answer with Brantner.

How have you seen the recent #MeToo movement affect workplace environments?

Most employers have had anti-harassment/discrimination policies in place for some time. However, they’re often buried in an employee handbook and not specifically communicated about with employees, either upon hire or at any time after that. Managers have not been trained how to respond to harassment complaints, and HR has been focused on how to protect the company from liability rather than on specific prevention tactics. What #MeToo has done has focused attention on the issue so that employers know that a policy is not enough, and placing all the burden on the person who was harassed to figure out how to address the situation is insufficient. More must be done to bring the policy to life, and the best employers are figuring that out and responding.

How do you identify a toxic workplace environment?

Usually someone comes to me complaining of the toxicity in their midst, so it’s not usually a problem to identify it. But some of the characteristics include one or more bullies who have targeted particular individuals, focusing on their personality differences or micromanaging, rather than remaining focused on the work to be done. Morale is low, discipline is meted out unfairly, there is high turnover, and by whatever measure is used to evaluate the effectiveness of work, it’s not getting done and productivity is not what it should be.

How is your approach different from older approaches to sexual harassment?

Older approaches to sexual harassment viewed harassment as a binary: Something was or was not sexual harassment, and someone was either a harasser or not. This is a very legalistic approach, focused on employer liability rather than prevention. Instead, I approach harassment as a continuum between nonconsensual sexual and physical assault and completely consented to physical and verbal interaction, focusing on the conduct in between and how its appropriateness can be impacted by such factors as the setting, time and place, any prior relationship between the parties, the workplace culture, and its history of responding to complaints. How can we make it so that all interaction doesn’t create discomfort, and that if a particular interaction *does* create discomfort, it’s OK to raise it without risking retaliation or having your standards questioned? In the past, there was also a code of silence around harassment: it was viewed as a private personnel matter, and investigation or discipline lacked transparency, so that it was often viewed as futile to complain. I help open that process up for scrutiny so that we can recognize the need of the person targeted for harassment to know that their complaint was taken seriously and that there were consequences for inappropriate behavior.
With personalized training programs, do you see better results when compared to past approaches?

It’s very early on and we’re changing a workplace culture and a societal culture that has been entrenched for a long time, often decades. Many of these concepts require a shift in thinking and a change in prevention approaches. For a while, we are going to have more complaints than fewer, as people who would not have come forward in the past now feel empowered to do so. I believe that over time, we will be able to measure a climate shift, but right now, we’re focused on improving the experience of individuals who come forward, so that they are believed, listened to, and ultimately protected by their employer.

What do you look for when meeting with a company for the first time?

I want to look at what approaches they have already adopted: what infrastructure is currently in place, which shows me how seriously they have taken this issue in the past. I want to talk with who has been involved: is it just HR or is company leadership also involved in addressing these issues? What kind of problems have they had in the past, and how do employees feel about what has already happened? I look for openness and transparency: Are they willing to frankly assess what has gone wrong in the past, and how they might fix it in the future?

How would you suggest creating a sense of empowerment for all employees in a workplace?

Employees need to hear from company leadership that they take problems seriously, know what to do when problems are brought to their attention, and will take prompt, effective, and non-retaliatory action against those who have violated company standards. When employees see that in action, that it’s not just some words on paper, they will feel empowered to make their workplace better and themselves shape the culture, rather than concluding that “management” is never going to do anything to help.

What are some of the latest developments in sexual harassment training?

There has been a move towards more frequent training and more interactive training, so that employees can practice some of the various responses and techniques that are urged under the policy. Trainings are more commonly tailored for individual workplaces and industries, highlighting some of the most common problems that are likely to be encountered, rather than “one size fits all” boilerplate trainings. More trainings are including bystander intervention, so even those who are not directly targeted for harassment have a role to play in prevention and intervention, and workplace civility discussions, which include codes of conduct and/or a focus on behavior which may not be clearly prohibited by the harassment policy but is nonetheless not the kind of behavior which is appropriate and conducive to a positive workplace culture.