Just days before Harvey Weinstein would be arrested and charged with rape in New York, MCBA members gathered for a discussion of the #metoo movement he has become a national symbol of. Moderated by MCBA Secretary and Program Chair Susan Feder, the luncheon was not only timely, it was deeply informative and thought provoking thanks to Susan and featured speakers Jennifer Reisch, Legal Director of Equal Rights Advocates (ERA), and Bernice Yeung, Reporter for Reveal from The Center for Investigative Reporting (CIR). Each speaker brought to the table an impressive background in work on gender inequality.

Reisch brought the perspective of an accomplished workers’ rights lawyer and more recently director of ERA for the past 12 years, managing the organization’s multi-prong approach to seeking equality and justice for women in schools and workplaces. Under her direction, ERA is not only focused on affecting policy and legislation, but also on effecting change through litigation, direct legal services, education and community outreach. She helped pass the California Fair Pay Act of 2015, and was part of the team representing Betty Dukes and other women in their history-making case against Wal-Mart, two representative highlights of an active career. Those accomplishments are also indicative of a deep historical perspective on both the issue of gender inequality and the evolution of relevant legal protections.

Yeung brought the perspective of an investigative reporter long focused on issues of gender. She was part of the Emmy-nominated Rape in the Fields reporting team, bringing to light sexual assault of immigrant farmworkers, and the lead reporter on another Emmy-nominated story, Rape on the Night Shift, which examined sexual violence against female janitors. Her most recent publication is In a Day’s Work: The Fight to End Sexual Violence Against America’s Most Vulnerable Workers (The New Press 2018). With a gift for storytelling and drawing connections, she delved into this complex issue and notably the difference between ways men and women perceive harassment.

How We Got Here and Why #metoo is Happening

Susan Feder opened the discussion by posing the key questions: How did we get here, and why is this issue a national topic of discussion today? Yeung took up first what ‘here’ is, characterizing the national discussion that includes the #metoo movement as a cultural reckoning. The Harvey Weinstein moment may seem a starting point, but she reminded the audience that moment was made possible by the efforts of many over many years to build a body of work exposing sexual harassment and violence on campuses, in the military, in places of employment, story upon story, case upon case.

On the question of why now, Yeung emphasized the effect of today’s media as an echo chamber, and the celebrity status of many figures leading the #metoo movement. Those elements, she suggests, have led the nation to see gender inequality in a new way, as a matter of abuse of power. More importantly, with the numbers of women now coming forward, abuse of power is being viewed today as more than isolated individual interactions but as connected to powerful companies and institutions.

Building on that shift in scope, Reisch pointed out how swift the transition from #metoo to #himtoo was. No longer is the issue seen as just some men behaving badly but broader institutional failures that have both led to and perpetuated harassment. With this shift, she added, has come another important shift in thinking toward the questions of how we can fix institutions and how we can create space for dialogue in our workplaces, schools and legislatures where people can participate fully. With the focus now on abuse of power, the discussion is no longer just about sex, it is focused in a more productive way on power and what is preventing people from participating, from feeling safe, and feeling respected.

Epic Systems Corp. v. Lewis

The conversation then turned to various efforts to keep harassment out of the public view such as nondisclosure agreements, and arbitration agreements at the heart of the U.S. Supreme Court’s recent decision in Epic Systems Corp. v. Lewis (2018). (Available as a slip opinion here.) Reisch quipped how quickly the tag #EpicFail gained currency after the decision was published, but was quick to note how devastating the decision is from the point of view of workers. The holding, she continued, is that an employer may require employees to sign arbitration agreements waiving the right to bring collective claims without violating the NLRA as that requirement would not fall within the Act’s definition of ‘concerted activity.’ Turning her attention to a vigorous dissent, Reisch echoed “Notorious RBG’s” (Ruth Bader Ginsburg’s) call to action that it is time for Congress to update the Act, which dates back to the New Deal.

With regard to harassment, Reisch struck a more hopeful note on the decision’s effect as most claims are brought on an individual basis, although she did predict the decision would have a broader chilling effect. She noted how the decision stands in contrast to the #metoo movement, which reminds us that there is strength in numbers. In practice, under Epic Systems, we should expect to see more instances of “death by a thousand cuts,” subtle retaliation against a worker who reports. Ultimately, the decision fails to recognize or appreciate the economic reality under which real people operate in the workplace, where individuals often cannot afford to quit or bring an individual claim.

Current Legislation

When asked about current legislation to watch, Reisch ran through a number of bills pending in Sacramento and Washington D.C.:

California Assembly Bill 3080 (Gonzales) addresses serial harassers. It aims to: put an end to forced arbitration as a condition of employment, make it unlawful to retaliate, expand training requirements, make it unlawful to require nondisclosure as a condition of settlement, and create a registry of sexual harassment claims and settlements. Whether this bill would be preempted in part by the NLRA is yet to be seen.

California Assembly Bill 1870 would increase the statute of limitations on FEHA claims from one to three years in discrimination and harassment claims, to bring them in line with other torts. The Bill would also reduce the number of employees needed to trigger training requirements and strengthen substantive requirements of that training.

California Senate Bill 224 (Jackson) would clarify that the Unruh Civil Rights Act applies to claims of sexual abuse in industries marked by power imbalance, e.g. producers, venture capitalists, lobbyists and elected officials.

The Congressional Accountability Act, which covers acts within Congress, is aimed at increasing transparency, clarifying policies and procedures, requiring disclosure of settlements, and getting clarity for employees on who and where they can turn to for help.

How #metoo Affects Low Wage Workers

The panel then explored how abuse of power affects workers at the bottom of the socio-economic spectrum. Yeung deftly illustrated the issue with a series of stories, drawing connections across seemingly disconnected industries. In Hollywood, the economic concern is whether an aspiring actress will have a role or any future roles. In the farm context, the concern is whether a worker will have work next season, her work conditions, and is often exacerbated by a lack of mobility. The economic element is severe for workers in this area. Yeung told the story of a woman working in the janitorial industry who shared how she was “constantly doing the math in her head,” calculating whether she could afford to look for another job when faced with a serial harasser. The livelihood of her family was at stake: two weeks off to find a new job, two weeks to the next pay check, meant one month’s missed salary. She just didn’t have that sort of savings, and so she stayed in her job and tolerated harassment until she was sexually attacked.

Adding another layer, Yeung explained how environmental factors built into a job will increase the challenge. A woman may work in a remote field, or as a single woman stationed at night on an entire floor of a large bank, or alone with a client in a home. In these situations, the worker is vulnerable, lacks witnesses to corroborate her story, and often faces a complete lack of any person or place to go for help.

Reisch also emphasized the connection between economic insecurity and harassment. One important takeaway message to attorneys in the audience was that a complaint that on its face is economic, such as failure to pay minimum wage or provide required breaks, may well stem from retaliation for rebuffing sexual harassment.

Stopping Harassment in the Workplace

As gender inequality has become a national discussion, Reisch pointed to some significant positive steps in the area of low wage workers. The Service Employees International Union (SEIU), in its latest approach to collective bargaining, announced a demand to require a clear and effective process for responding to reports of harassment. Harassment has become a priority, and new pillar of collective bargaining.

Such a clear statement of priority must be backed up by effective education. Yeung added that training for farmworkers has vastly improved in some areas, with trainings made industry specific, and very impactful. Important elements to include are a clear message that there are many ways to report, that an employer cannot retaliate against a worker for reporting, and that the company has no tolerance for harassment. At one training she observed, the leader asked the men in the audience what was stopping them from speaking up when they see someone being harassed. Training is an opportunity to make clear that everyone shares responsibility, and to ensure that everyone is empowered to speak up.

Reisch echoed and amplified the importance of training and education, stressing the need to empower workers by making clear how to report and to allow anonymous reports. The questions she would have companies ask now are: What about our culture, our policies, our procedures prevents people from speaking up? How do we change that so we can provide access and space to speak?

As to advice for employers, after examining various industries, Yeung recommends employers do an audit to be sure they have a clear starting reference point. They then need to exhibit leadership, demonstrate a commitment to stop harassment, and model values like respect and equal treatment. Employers must find a way to check in with employees and assess the actual workplace climate. Policies must be written, and written in plain language that is accessible to all employees, who need to receive real notice rather than a policy buried in an inch-thick stack of rules to take home and read on their own.

Whether Gender Inequality and Harassment are Understood Differently by Men and Women

One final issue arose: whether gender inequality and harassment are understood differently by men and women. Yeung began with a story about a female friend and her friend’s (now-ex) partner. Her friend had shared with her a conversation with her partner about harassment she’d endured at every place of employment she’d had, and how her partner simply did not believe her. On reflection, this friend imagined her partner either felt guilty because some of what she described seemed “normal” to him, or that her reality was so far removed from his that it had just never crossed his mind the world could be like that. Yeung then jumped to the moment when the SIEU announced that it had decided to make sex harassment a priority and some men in the audience booed. There is a perception gap, and what is needed, she urged, is twofold really: a broader vocabulary for everyone and an honest conversation.

Reisch drew a comparison to race and white privilege, a topic that is uncomfortable for many, bringing up feelings of undeserved privileged status while not having done anything “wrong” personally to achieve that status, leading many to avoid discussion of it. Well, the national debate is shining a light on the issue of gender inequality. Change, she advises, while uncomfortable for those who might prefer the status quo, is needed and coming.

To illustrate how the perception gap might be bridged, Reisch told a story a male friend had shared. He was at a convention returning to his room in the hotel with a glass of wine in his hand. He boarded the elevator and took a position opposite a woman already inside. He was heading to the same floor as the woman and when the elevator came a stop and the doors slid open, the woman began rifling through her handbag and said, “You go ahead.” He did, and went to his room oblivious to why she seemed insistent that he exit first. Just before entering his room, he noticed her walking in the opposite direction. In the silence of his room, and for no particular reason, he began to imagine the moment from her perspective. In all probability, she had her key but pretended to search her bag so that he would not be in a position to either follow her or to see which room she went into. She felt the need to take action to feel safe, and in a way that would not burden him with a problem he may not even be aware of. He’d done nothing wrong. We’re not all bad, he thought, but she had still needed to think about an issue he didn’t, one he didn’t personally create but created just by virtue of being there as a man. Imagining her perspective provided valuable insight for him and for the audience. One of those insights was that he needed to be part of the solution even if he hadn’t personally been part of the problem. And all it took was some degree of attention and opening up for just a moment to see the issue from a different perspective.