Sexual Harassment: It is unlawful to harass a person (an applicant or employee) because of that person’s sex. Harassment can include “sexual harassment” meaning unwelcome sexual advances, requests for sexual favors and other verbal or physical harassment of a sexual nature.
#MeToo: The hashtag which has provided an umbrella of solidarity for millions of people to come forward with their stories surrounding sexual harassment and assault. – TIME
Time’s Up: “The clock has run out on sexual assault, harassment and inequality in the workplace. It’s time to do something about it.” A movement against sexual harassment founded by Hollywood celebrities in response to “the Weinstein effect” and #MeToo.
The Topic: How the flood of women speaking out against sexual assault and harassment throughout 2017 and into 2018 is going to affect legislation proposed throughout the year and other implications.
Background.
Sexual harassment is a form of gender discrimination and violates Section VII of the Civil Rights Act of 1964. The Equal Employment Opportunity Coalition defines two types of behavior has sexual harassment:
Quid pro quo (translates to this for that) – This is what we think of as the “standard type” of sexual harassment.
Offering or demanding an act or an omission of an act for an advancement in a career or not receiving a reprimand for an action. A classic example is the “casting couch”, a young actress being offered a part in movie in exchange for sexual favors.
Hostile Environment – This is when the behavior demonstrated at work creates a hostile or abusive work environment like: displaying pornographic pictures or cartoons, touching and grabbing, sexual remarks or jokes and the physical interference with movement.
Sexual harassment and assault have always been a part of our culture and the world’s culture, but the ability to shine a light on this kind of harassment is something of a modern revolution. For a long time many people treated sexual harassment and assault as something unspoken, private and an experience the victim should be ashamed of. These societal pressures led to silence; although understandable given the cultural climate, this silence has had a profound cost. Why is silence so common when it comes to these types of issues?
Not only did people have to experience the crude and offensive treatment from people in their life (vile comments, opportunistic gropes, forced touching or kissing), but they had to endure the resulting emotional and psychological reverberations. Repercussions that come with experiencing sexual harassment and assault often center around a sense of shame, continually questioning: “Did you somehow ask for it? Could you have deflected it? Did you make a big deal out of nothing? Can you continue without saying something? If you do say something, how will it affect you, your job, your family, your reputation? How will it affect your abuser and their life?” Being someone visible to the general public (actors, singers, political aides, etc) discouraged many from speaking out after an incident because often their complaint became their identity. Accusers are vilified, while the accused go on to become Hollywood moguls, famous comics, Supreme Court Justices, adored party leaders, kingmakers or president of the United States.
When we talk about sexual harassment and assault we try to soften or downplay the experience because our culture has taught us it is not only shameful, but incredibly uncomfortable to address. We do not offer understanding to victims of their pain, instead we replace direct words with euphemisms: harassment is “inappropriate behavior,” assault is “misconduct,” rape is “abuse.”
What Happened Last Year?
In October of 2017, Ashley Judd went on the record about an encounter with Harvey Weinstein in the 90s when he attempted to coerce her into bed. Although she began spreading the word right after the incident, her accusations were written off as yet another example of the “open secret” in Hollywood. Women knew Weinstein had a history of harassment and assault, they knew they had to stay alert and vigilant, but there was no clear pathway for women to actually stop the abuse or ever really hold him accountable.
The #MeToo movement, which helped initiate an avalanche of people speaking out against their assailants and abusers, essentially started with a tweet. One Sunday afternoon, Alyssa Milano, an actress, sent out a tweet aimed at encouraging women who’d been sexually harassed or assaulted to tweet the words #MeToo.
If you’ve been sexually harassed or assaulted write ‘me too’ as a reply to this tweet. pic.twitter.com/k2oeCiUf9n
— Alyssa Milano (@Alyssa_Milano) October 15, 2017
The complete takeover of this topic in the media and the public eye finally gave women and men who have experienced harassment and assault a platform to address the issue and hopefully enact change. The coveted Person of the Year award by TIME acknowledged this movement by giving the title to the “Silence Breakers”. They focused on telling many women’s stories, ranging from Ashley Judd, an actress, to Isabel Pascual, a strawberry picker from Mexico, to Susan Fowler, a former Uber engineer, to Adama Iwu, a corporate lobbyist in Sacramento. The article worked to demonstrate women in all areas of life are impacted by this issue.
This “reckoning” had been gaining momentum for years. Because of this movement, countless stories emerged from the woodwork. More “open secrets” like the nearly 50 women who have accused Cosby of sexual assault over several decades supported the realization that we are living in a culture of silence. Multiple harassment claims against Today show host Matt Lauer led to the reveal of a button he had installed to enable him to lock his office door automatically from his desk.
Politics is not immune from this movement. Many of us remember Anita Hill who in 1991 she accused Clarence Thomas, then a nominee for Supreme Court justice, of sexual harassment. Her testimony before the Senate confirmation committee was one of the first times sexual harassment in the workplace was one of the first times this issue became the focus of a national conversation.
In 2017, many, many politicians faced fallout from “inappropriate behavior” and reverberations continue into 2018. Perhaps the most covered politician in 2017 was Roy Moore, the Alabama Republican nominee for the Senate. He was accused of abusing a 14-year-old girl when he 32 years old and an assistant district attorney. After the first woman spoke out, eight more women came forward with “inappropriate encounters”, many of which occurred when they were teenagers. Senator Al Franken resigned from his role as Senator of Minnesota on January 2, 2018, after several allegations of sexual misconduct were made against him.
The issues surrounding public servants and sexual assault further morphed when it surfaced that some of the accused people used taxpayer dollars to settle sexual harassment lawsuits. Blake Farenthold, a Texas Republican Representative, is reported to have used $84,000 in a settlement with a former aide in 2014. John Conyers, a Michigan Democratic Representative, is reported to have paid more than $27,000 with a former staffer who accused him of making sexual advances toward her. The Treasury Department paid about $174,000 over five years to settle claims that included allegations of sexual harassment or sex discrimination in House member offices. The Office of Compliance released additional information in November 2017 detailing its payment of more than $17 million to victims since its creation in the 1990s. This number is for all 268 settlements, meaning not only the ones related to sexual harassment but also discrimination and other cases.
What Can Be Done?
What most people committed to ending sexual harassment and assault agree on is one thing: there needs to be clear, general guidelines for what types of behaviors constitute as sexual harassment. There is a need for policies that provide a clear path for people who experience sexual harassment or assault: who to make the report to, what the investigation process includes, options they have and what type of remedial action would occur after an investigation is concluded. This process must start with passing legislation the ensure these guidelines and pathways have the force of law, followed by education to raise awareness.
On a recent podcast by Our American States, the NCSL inerviewed three experts to get a sense of what types of changes are happening in state legislatures and find out what types of best practices they should consider. The podcast focused on the need to compile and update clear policies, to provide live, in person training for legislators, and the importance of making broad, organizational changes with true buy-in by the general public. I believe no one actually wants to defend these barriers that keep people from being able to simply do their job. We have the opportunity to create an inclusive environment in government and society where all people feel as though they are invited, able to serve and comfortable.
Improving communication on policies and increasing diversity in the workplace are first steps for bettering our society. The messaging and awareness also needs to be done in the correct manner. Jonathan Segal, a recognized national expert on sexual harassment issues, spoke to the importance of messaging. Zero tolerance messaging can be dangerous, instead, he feels we should focus on proportionate punishment. The choice victims have to make when there are zero tolerance policies in place is chosing whether or not what happened is worth someone losing their job. In many cases, this kind of drastic punishment can encourage victims to do nothing and stay silent. Sexual harassment and assault is not something that is always a “one and done” offense; we need to systemically address it and increase awareness to aim for a sustainable increasing reduction in behavior. There needs to be procedures that allow for resolutions for reported incidents and education for society and workplaces to change behavior by developing best practices.
The Bills.
Here is a map of the current sexual harassment bills from across the nation.
Massachusetts, Alabama, Oklahoma and Georgia all currently have bills proposing reviews of their policies. They range from officially defining “sexual misconduct” to establishing a sexual harassment prevention program.
New Mexico, Illinois, Indiana, Maryland, Missouri,Virginia, Pennsylvania and the US all have some type of requirement of sexual harassment training for members, officers, employees, interns or fellows of the General Assembly. The US has two bills: US HR4396 the Member and Employee Training and Oversight On Congress (ME TOO) Act and US HR4155, the Congressional Sexual Harassment Training Act.
Maryland and Alaska both have bills regarding the investigation of discrimination and harassment in the legislature. New York made official misconduct for sexual harassment for members of the New York state legislature a class A misdemeanor along with prohibiting officers or employees of a state agency, members of the legislature or legislative employees from committing acts of sexual harassment while serving in his or her official capacity. California aims to require each house of the Legislature to maintain a record of each harassment complaint made to that house for a period of at least ten years after the complaint is made.
Many, many states have legislation regarding non-disclosure agreements and arbitration agreements. An arbitration agreement is a written contract in which two or more parties agree to settle a dispute outside of court. A Tennessee bill prohibits public and private employers from requiring an employee or prospective employee to execute a non-disclosure agreement with respect to sexual harassment in the workplace as a condition of employment. Another declares arbitration agreement provisions for the purpose or effect of concealing details relating to claim of sexual harassment or sexual assault as void and unenforceable and contrary to public policy of this state. Indiana, Maryland, Virginia, Kansas, Arizona, Florida and South Carolina all have similar bills.
US HR4503 prohibits the imposition of nondisclosure agreements as a condition of the payment of an award or settlement in connection with sexual harassment and assault. The bill also requires Members of Congress to reimburse the Treasury for amounts paid as awards and settlements. Kansas, New York, Illinois and Alabama all have bills prohibiting state funds from being used to pay settlements toward any claim alleging sexual harassment or assault.
As we’ve discussed, this issue affects many different areas of life outside of politics and Hollywood.
The Texas Military Justice and Protection Act aimed to prohibit retaliation against a member of the state military forces for reporting or planning to report an allegation of sexual assault, sexual harassment, including online sexual harassment or other sexual misconduct. NJ ACR13 urges Congress to enact reforms addressing sexual harassment and assault in United States Armed Forces.
The Campus Accountability and Safety Act (CASA) would reform the way colleges and universities address and report incidences of sexual assault that occur on their campuses. The legislation will instate higher training standards for on-campus personnel and require fairness and uniformity in the campus disciplinary process.
New Jersey and Rhode Island both proposed Healthy Workplace Acts – making it an unlawful employment practice for an employer to subject an employee to abusive conduct or to permit an abusive work environment. It also prohibits an employer to retaliate in any manner against an employee because they brought legal action, or because made a charge, testified, assisted or participated in any manner in an investigation or proceeding related to the abusive conduct or work environment. CT HB05043 is an act promoting a fair, civil and harassment-free workplace.
New York, Tennessee and New Jersey all proposed “rape shield” statutes for civil cases. The “rape shield” statute in criminal prosecutions provides that evidence of the victim’s previous sexual conduct is not admissible except under certain prescribed circumstances, this bill would establish similar provisions in civil actions alleging conduct which constitutes as sexual assault or harassment.
Concluding Thoughts.
The issue of sexual harassment and assault is a global issue.Over the last year these movements have given victims a platform to be respected and heard. People finally had the support to use their voice, allowing for them stand up and start to change our culture. People who experienced sexual harassment or assault should never again be made to feel alone and powerless. Now is the time for us to address these difficult issues and make the systemic changes needed to help our society heal and move forward to a better day.
Photo by Mihai Surdu on Unsplash
About BillTrack50 – BillTrack50 offers free tools for citizens to easily research legislators and bills across all 50 states and Congress. BillTrack50 also offers professional tools to help organizations with ongoing legislative and regulatory tracking, as well as easy ways to share information both internally and with the public.