Posted: October 29th, 2022

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Labor Studies Journal 2018, Vol. 43(4) 245 –262

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Commentary

Sexual Harassment in the Workplace: Where Were the Unions?

Ana Avendaño

Abstract Unions have a mixed record when it comes to fighting sexual harassment, especially in cases that involve harassment by union members. Union responses to sexual harassment have been shaped by their position in labor markets that remain highly segmented by gender and race, with male-dominated unions playing a passive role vis-à-vis female targets of sexual harassment, and too often siding with male harassers. Those responses have also been shaped by a legacy of sexism within the labor movement, and exclusion of women from the formal labor market, and from unions, and by a distinctive form of feminism exercised by women inside the labor movement, which focuses on women’s economic situation rather than on other social factors that keep women down. In the wake of the #MeToo movement, some unions faced their own internal harassment scandals. Several unions have since adopted internal codes of conduct, and other approaches to better address harassment internally, and on the shop floor. While codes of conduct are an important element in changing the culture that permits harassment to persist, they are not enough. By authentically focusing on sexual harassment, unions would connect to the experiences of women in all workplaces. They would also increase their chances of growing. Unions remain the most powerful voice for working people in America, and the best vehicle to create a transparent, accessible system that empowers those who suffer harassment in the workplace to stand up collectively and individually against violators. The moment demands intentional, well-resourced, genuine efforts from unions to do better. This article offers modest suggestions that unions could easily adopt.

Keywords unions, sexual harassment, workplace culture

Corresponding Author: Ana Avendaño, Email: ana.avendano@uww.unitedway.org

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Harvey Weinstein, the once-powerful Hollywood mogul, was arrested on May 25, 2018 in New York City and charged with rape and sexual assault. Weinstein abused women for decades while evading responsibility. The front-page photograph of Weinstein in handcuffs, appearing confused and disheveled, and led by a police woman who exuded confidence as she perp walked him past a gauntlet of reporters is evidence that a fundamental shift in American consciousness about sexual harassment in the workplace has taken root.

Since the New York Times and the New Yorker exposed Weinstein’s extensive his- tory of violence against a long list of Hollywood A-listers and other women in the industry, the Times has kept a running list of high-profile men in various industries— entertainment, media, sports, politics, high tech, and the courts—who have been fired or forced to resign because of their conduct. Seventy-one names appeared on that list as of February 8, 2018, just four months after the expose of Weinstein. The list identi- fies another 28 high-profile men who have been suspended, or suffered another form of punishment short of termination. It includes household names, some beloved in labor and progressive circles, like Senator Al Franken, and television host Charlie Rose (Almukhtar, Gold, and Buchanan 2018).

For working women, this reckoning is long overdue. Congress outlawed gender discrimination in the workplace more than five decades ago with the passage of the Civil Rights Act of 1964, although it was not until the mid-1970s that federal courts recognized that sexual harassment constitutes gender discrimination in violation of Title VII of the Act (Shie, Taylor, and King 2000). In 1980, the agency charged with enforcing Title VII, the U.S. Equal Employment Opportunity Commission (EEOC), issued guidelines that established two general categories of sexual harassment: “quid pro quo” and “hostile environment” harassment. The former category involves a per- son in power—usually a supervisor or manager—conditioning an employment benefit in exchange for sex. “Hostile environment” harassment occurs when unwelcome con- duct, that is, “sufficiently severe or pervasive,” alters conditions of work and creates an abusive environment. In 1986, the Supreme Court adopted the U.S. EEOC’s defini- tions and guidelines (Meritor Savings Bank v. Vinson, 477 US 57 (1986)).

Yet, as an U.S. EEOC study published in 2016 shows, anywhere from 25 to 85 percent of women in today’s workplaces experience a form of sexual harassment1 (U.S. EEOC 2016). Why is the problem so rampant? Or, as the U.S. EEOC (2016, ii) asked, “with legal liability long ago established, with reputational harm from harass- ment well known, with an entire cottage industry of workplace compliance and train- ing adopted and encouraged for 30 years, why does so much harassment persist and take place in so many of our workplaces?”

The seismic shift in the public’s acceptance of what constitutes appropriate behav- ior in the workplace brought new urgency to that question. Analysts and academics were quick to point to the law’s deficiencies: Title VII covers too few workplaces; penalties are weak; liability does not reach into the echelons of power (Block and Gerstein 2017). Many pointed to a culture that shames and blames women who report harassment, keeping them silent. According to the National Women’s Law Center, 70 to 90 percent of women who experience harassment do not report it to their employers

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(Raghu and Suriani 2017). Others pointed to private settlement agreements between harassers and their victims that contain language forbidding the victims from speaking about the harassment. Commonly known as nondisclosure agreements, those contracts allow perpetrators to buy the silence of survivors and—as the Weinstein case made very clear—allows them to continue abusing women (Levinson 2018). Indeed, power- ful men including Roger Ailes, Bill O’Reilly, Bill Cosby, Larry Nassar, and the current President of the United States have used nondisclosure agreements to prevent women from speaking out about their experiences.

Labor-friendly commentators responded to the nascent #MeToo movement by pro- moting unionization as the answer. “We are not going to solve the problem unless we address the profoundly undemocratic structure of most workplaces,” said one com- mentator, adding, “a union grievance procedure at least gives workers an opportunity to appeal to a neutral decision maker” (Strom 2017). The AFL-CIO (2018) published an article on its website that argues, “[g]iven that sexual harassment is an abuse of power, typically by a male manager against female subordinates, having a union and collective voice strengthens a worker’s ability to stop harassment. A woman facing sexual harassment is not alone.” The problem with those arguments is that they are based on two flawed assumptions: (1) that victims of sexual harassment have access to union grievance procedures in all—or at least, most—unionized workplaces and (2) that harassers are, in most instances, the boss.

To the contrary, research shows that 60% of women who experience harassment on the job do so from their peers, while only 28% report harassment by a manager or supervisor (Careerbuilder 2018). In addition, unions have a poor track record of using grievance mechanisms or their power in the shop in favor of women who are harassed at work, especially if the harasser is a coworker. As former National Labor Relations Board Chairperson Wilma Liebman, a union lawyer, explained to Politico, sexual harassment “has been an ongoing problem for unions, especially those that were ini- tially heavily male. It’s been a hard issue to deal with” (Kullgren 2017). Professor Marion Crain, who studied all reported legal cases and arbitral opinions involving unions and sexual harassment between 1970 and 1995, concluded that

most unions contribute to women’s economic disempowerment by addressing sexual harassment in a manner that discourages women from acting collectively through their unions to combat such treatment in the workplace. This casts the union as simply another level of patriarchy for women unionists to contend with in the workplace, rather than as an ally. (Crain 1995)

Labor unions sit in a perilous moment in history. On June 27, 2018, the Supreme Court struck a blow to one of the institutional pillars of American trade unionism: its self-funding mechanism. In Janus v. American Federation of State, County, and Municipal Employees, Council 31, the Court ruled that the “fair share” fees that public sector workers represented by a union are required to pay for the collective bargaining work that the union performs on their behalf are an unconstitutional infringement of free speech rights. The Court’s action permits workers to receive services, benefits,

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and representation from unions without paying for them. Researchers at the University of Illinois at Urbana–Champaign estimate that allowing union members a “free ride” will reduce the union membership rate of state and local government employees by 8.2%, which could translate into a loss of 726,000 union members over time (Bruno and Manzo 2018). Of course, a weakened public sector in turn weakens the already anemic unionized private sector.

Unions would do well to focus their efforts on the real lived experiences of working people, and connect to their current members and potential members by being respon- sive and relevant to those experiences. Issues of equality—gender, race, immigration status, disability—should not be siloed into specialized committees within the struc- ture of the labor movement. Instead, they should be treated as core tenets of an agenda to grow and revitalize the labor movement.

By authentically focusing on sexual harassment, unions would connect to the expe- riences of women in all workplaces. They would also increase their chances of grow- ing. While most campaign literature encouraging workers to join a union focuses on the union premium in terms of wages and benefits, research shows that women vote for unionization when they see the union as responsive to their noneconomic needs, especially to issues that involve respect and dignity in the workplace (Mellor and Golay 2014). More importantly, given the post-Janus moment, “women appear to retain their membership when they perceive that the union is ‘making good’ on such responsiveness” (Mellor and Golay 2014).

Unions’ Complicated History with Sexual Harassment

Unions have a mixed record when it comes to fighting sexual harassment, especially in cases that involve conduct by union members. Unions stood as defendants or bystanders in the early cases that set the boundaries of what constitutes “hostile work environment” harassment, and how the law addresses that form of workplace discrimi- nation (Crain 1995). The most famous of those cases is Jenson v. Eveleth Taconite Co.,2 the first class-action lawsuit litigating a case of workplace sexual harassment. Lois Jenson was one of the first women to work in the iron ore mines of northern Minnesota. Her painful and heroic story was memorialized in the bestseller, Class Action, and later fictionalized in the motion picture, North Country. In 1974, the U.S. EEOC and several mines in the area entered into a consent decree that guaranteed that 20% of jobs in production and maintenance would be set aside for women and racial minorities. Until then, blue-collar jobs in the mines, with the best wages and benefits in the area, were only available to men.3

Women were met with hostility and vituperation from the men in the Eveleth mine, who forcefully protected the mine’s “distinctly macho world view” (Bingham and Gansler 2002, 33). As Lois Jenson began work on her second day on the job, a male coworker walked past her, and without looking at her or breaking his stride said, “You fucking women don’t belong here. If you knew what was good for you, you’d go home where you belong” (Bingham and Gansler 2002, 14). The vitriol never dissipated.

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In court, the women testified to what they had endured in their work lives: being groped, grabbed, pressured for sex, threatened with rape, and subjected to pornogra- phy and crass graffiti throughout the plant, as well as constant graphic conversations about sex. One woman testified that on three separate occasions she found “a gob of fresh semen” on clothes that she kept in her locker (Bingham and Gansler 2002, 47-48). Three years after the case was filed, a sign appeared and remained in the break room bulletin board that read in all capital letters, “sexual harassment in this area will not be reported. However, it will be graded” (Bingham and Gansler 2002, 132).

Violence in the plant intensified as women pressed their complaints. Women testi- fied that they were stalked at home and begun carrying weapons to defend themselves against physical attacks. A young man testified to “watching his mother pack her lunch box for work each day: a knife, mace, rope to tie shut the door to her work area, and food” (Grimsley 1996).

The women were members of United Steelworkers (USW) Local 6860, yet found no refuge in their union. When Lois Jenson turned to the union after years of being stalked and physically threatened by a supervisor, the union steward told her that he did not know how to file a sexual harassment grievance, even though he had been trained on how to file such grievances (Bingham and Gansler 2002, 106-107). Another woman described in court that she was repeatedly exposed to graffiti about men who said they “sucked her cunt and her juicy red lips,” and when she complained about the graffiti to the union president, he shrugged and said, “Well, it’s true, isn’t it?” (Bingham and Gansler 2002, 262). The women were conscious of complaining about conduct by supervisors, not that of their male coworkers or the union, because “to be a squealer was to betray the entire union movement, tantamount to becoming a company spy,” a sentiment that remains too common among women unionists today. Yet, their com- plaints only pushed the union to side more closely with the Company against them.

Union officials made no secret of their views about the women’s claims and which members deserved protection from the union. The union president testified: “It’s my job to represent the employees and the members of my union out there . . . and it’s not my job to give discipline. It’s my job to protect them from discipline” (Grimsley 1996).

The union’s response in the Eveleth mine was not an aberration. Unions played similar roles in other cases that established important legal precedents that signifi- cantly strengthened protections for women workers (Crain 1995). For example, the groundbreaking case that established the “reasonable woman” standard, which hostile work environment claims are evaluated on, Ellison v. Brady, was brought by a woman who was employed at the Internal Revenue Service and a member of the National Treasury Employees Union.4 Lois Robinson, a welder and union member, successfully sued her employer, Jacksonville Shipyards, securing for the first time legal recognition of the role that pornography plays in creating a hostile environment in violation of Title VII.5 In all of these cases, the women’s unions played no positive roles in their struggles, or in their legal victories.

Most recently, the New York Times expose of conditions at two Ford Motor Company plants in Chicago shows that the union’s attitude toward sexual violence in

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the plants has not changed significantly in the last twenty years. Several women who worked at the plants in the 1990s sued the Company for pervasive sexual harassment, and in 1999, won a multimillion dollar settlement. As the women who were members of the United Auto Workers (UAW) told the Times,

bosses and fellow laborers treated them as property or prey. Men crudely commented on their breasts and buttocks; graffiti of penises was carved into tables, spray-painted onto floors and scribbled onto walls. They groped women, pressed against them, simulated sex acts and punished those who refused (Chira and Einhorn 2017).

When one of the women asked her union representative for help in dealing with a coworker who propositioned her for oral sex, he urged her not to follow-through on her complaints because the coworker would lose his job, his benefits, and his pension. False rumors about a sexual relationship with the harasser spread in the plant, which made the woman’s work life increasing stressful. She gave up attempting to press charges when the union official told her, “Suzette, you’re a pretty woman—take it as a compliment.” Other female union members shared similar experiences (Chira and Einhorn 2017).

Fast forward twenty years, and conditions have not improved significantly for the UAW women at Ford. In August 2017, the U.S. EEOC reached a $10 million settle- ment with Ford over racial and sexual harassment allegations at the very same Chicago plants (Chira and Einhorn 2017). Thirty women autoworkers brought a separate law- suit, which accuses union representatives of harassment and obstructing women’s complaints.6 In that lawsuit, which is still making its way through the courts, several women accuse the UAW bargaining committee chairman, Allen “Coby” Millender, of repeated assaults that include touching, grabbing, and attempts at unwanted kissing (EbossWatch 2014). When one woman sought his help after being fired, he told her she would have to get on her knees and “act like another woman who moments before their conversation, had been pressed close to him, standing between his legs” (Chira and Einhorn 2017). Millender also threatened to move a worker to an overnight shift if she did not lunch with him in his office and have sex with him (EbossWatch 2014).

Save for the failed efforts of one steward, the union took no steps to protect the women, yet went out of its way to protect the accused harasser. When Millender received a two-week suspension following a Company investigation, the union grieved the case to arbitration. When plant rumors spread that Millender had been fired, UAW Vice President Jimmy Settles quickly took to Facebook to clarify that Millender had not been fired, only suspended and noted that “the UAW has filed a grievance chal- lenging Mr. Millender’s suspension” (Settles 2015). By contrast, the union made no statement concerning the brutal conditions that its female members were forced to endure at the hands of supervisors and union agents.

A troubling pattern emerges from these cases: a victim complains to the union, the union representative ignores her, or points her toward the employer, encouraging her to file a complaint under the employer’s sexual harassment policy. The victim then files a complaint with the employer, who, to avoid liability under Title VII, conducts

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an investigation. When the employer disciplines a harasser, the union grieves the dis- cipline, forcing the victim and the employer to align in opposition to the union and the harasser. Indeed, sexual harassment grievances in labor arbitration overwhelmingly involve men challenging discipline for sexually harassing conduct (Alleyne, 1999).

Part of the problem is that most unions do not bargain clauses specific to sexual harassment but rely on general antidiscrimination clauses to cover sexual harassment. That language gives unions little guidance on how to handle harassment claims, and, given the complexity of the issue, the emotionally charged nature of harassment claims, and the internal politics that often accompany such claims, it becomes much easier for a grievance handler to simply push complaints to the employer. Canadian unions, by contrast, have taken a different approach, negotiating clauses that deal spe- cifically with harassment, and supplementing the collective bargaining language with toolkits and training to make the protections accessible (Barnacle et al. 1994).

Lurking in the background is the union’s duty of fair representation, a legal obliga- tion to treat all members of a bargaining unit fairly and not act in a manner that is “arbitrary, discriminatory, or in bad faith.”7 That duty requires that the union conduct an Assessment of the merits of a claim, and make a decision on how to proceed based on a fair and impartial consideration of the interests of members, free from political favoritism or ill will (O’melveny 2000). Unions have substantial leeway in this area; they are not required to proceed with every grievance filed by an aggrieved member. If the union’s investigation concludes that the alleged harasser acted in a manner that violated the rules of the workplace, the union is not obligated to pursue a grievance on his behalf.

The Way Forward: Understanding the Past

To become an authentic leader in combating workplace sexual harassment, unions need to confront their past and present treatment of women. Bessie Hillman, the mili- tant labor activist proclaimed in 1961,

I have a great bone to pick with the organized labor movement. They are the greatest offender as far as discrimination against women is concerned. Today women in every walk of life have bigger positions than they have in organized labor. (Murolo and Chitty 2001)

The labor movement’s exclusion of women from leadership positions—indeed, from the movement itself—is rooted in long-standing sexism, a culture that values tradition and loyalty at the expense of other values.

Male chauvinism and a nearly exclusive focus on economic factors like wages and benefits have worked together throughout history to keep women in the labor move- ment as second-class citizens. Of the 13 founding unions of the American Federation of Labor (AFL), only two, the Typographical Union and Cigar Makers admitted women (Murolo and Chitty 2001). By the late 1890s, most AFL national affiliates amended their constitutions to allow for female membership, but found ways to keep

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women out. Even when women organized themselves, they were denied recognition. In the early 1900s, women printers in New York, candy workers in Philadelphia, hair- dressers in Seattle, and streetcar conductors in Cleveland organized and petitioned for a charter that would formally recognize them as an affiliate of the AFL. The AFL turned them down (Foner 1979; Murolo and Chitty 2001).

Nor did the AFL stand by women workers following World War I or World War II, when women entered the workforce in large numbers. Diane Balser’s (1987, 26) study of feminism in the labor movement exposes the antipathy that AFL leaders displayed against women:

Most if not all of the AFL leadership was convinced that ‘a woman’s place is in the home.’ The American Federationist, the AFL newspaper published many articles during these years condemning the presence of women in the wage workforce and demanding women’s exclusion from industry.

The UAW and United Electrical Workers (UE) pushed by Communists within their ranks adopted equal pay as the official policy of the union in bargaining; no others did (Foner 1979). Following World War II, organized labor participated in a cultural and legal consensus that married women belonged in the home, and that they should leave their jobs in the hands of returning veterans (Kessler-Harris 2001). Thus, women were displaced, with little support from government or labor. Both national centers, the AFL and the Congress of Industrial Organizations (CIO), were absent.

Worse, unions sanctioned discrimination against women through collective bar- gaining. Several unions bargained prohibitions against the employment of married women. Others agreed to the discharge of single women who married. Yet others bar- gained unequal hiring of, and wage rates for, men and women doing similar jobs where lower paying jobs were given to women (Foner 1979).

Well into the 1960s and 1970s, unions sided with employers on matters that benefit- ted men at the expense of women workers, and especially women of color. Those included protective measures like weight lifting restrictions, hours limitations, and separate jobs for men and women (Crain 2007; Deslippe 2000). The International Longshore and Warehouse Union (ILWU) maintained a provision in its contract that allowed the “son of an active deceased longshoreman” the right to join the union by “taking his father’s union book”—a provision that remained until the 1970s, when a Southern California female dock worker sued the union (Alimahomed-Wilson 2016, 158). Labor leaders also fought vehemently to lessen liability under Title VII of the Civil Rights Act for themselves, by trying to weaken the U.S. EEOC, and diverting claims away from the courts to U.S. EEOC, for both gender and race (Crain 2007; Crain and Matheny 2001). Some unions also strongly urged the U.S. EEOC to inter- pret bona fide occupational qualifications narrowly, which would allow employers and unions to continue to discriminate based on gender and race despite the antidiscrimi- nation laws (Crain 2007; Deslippe 2000).8

Unions’ responses to sexual harassment are also shaped by a distinctive form of feminism exercised by women inside the labor movement, which focuses on women’s

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economic situation rather than on other social factors that keep women down. Women leaders and staff have been reluctant to challenge internal sexism, now and in the past. When women unionists formed the Coalition for Labor Union Women (CLUW) in 1974 as a constituency group of the AFL-CIO, they sought to develop a working wom- en’s agenda without attacking the male labor establishment. They wanted to win sup- port from and gain credibility within the official labor leadership (Balser 1987, 174). Thus, they chose to focus on equal pay because “that campaign neither confronted masculine-privileged employment practices nor directly challenged women’s margin- alization in unions” (Deslippe 2000, 53). Women believed that it was not in their inter- est to challenge the patriarchy or sexism within labor’s own ranks as it would subject them to accusations of disloyalty and engender men’s wrath (Deslippe 2000). Women were not open to debating critical issues about the labor movement’s culture of loyalty because “one does not talk about family business in public” (Roth 2003, 179).

Women’s history in the labor movement evolved along labor markets that to this day remain highly segmented by gender and race. Four in ten women work in female- dominated occupations (where women make up at least 75% of the labor force), and only 5.5 percent of all women work in male-dominated occupations, where the pay is better, benefits are more plentiful, and chances for advancement abound (Institute for Women’s Policy Research 2018). The gender composition of unions, particularly those that are occupationally based, is related to labor market gender segmentation. Some unions represent overwhelmingly male constituencies: the building trades, pilots, and firefighters, to name a few (Milkman 2016). Other unions have large female memberships, namely teachers’ and nurses’ unions. Unions that are organized around industrial or sectoral lines like auto and steel also tend to be male-dominated. As Ruth Milkman (2016) explains, “In the twenty-first century, the typical male union member is a private-sector, blue-collar ‘hardhat,’ whereas the typical female union member is a public-sector, white-collar or professional worker employed in education, health- care, or public administration” (213).

Thus, it comes as no surprise that unions with majority female members have done a much better job of addressing sexual harassment than those that are predominantly male. Indeed, the Weinstein-era examples touted by the labor movement as taking an aggressive stand against sexual harassment come from unions advocating for their predominantly female members: UNITE HERE’s Hands Off Pants On campaign on behalf of hotel workers who experience high rates of harassment from customers and managers, and United Service Workers West’s Ya Basta! Coalition. The latter is an effort by the janitors’ union in Los Angeles to address harassment in that industry through a coalition of anti-violence advocates, worker advocates, union leaders, and women worker leaders. Both efforts included raising public awareness and state legis- lation, and were well underway before the Weinstein scandal broke.9

Notably, those efforts address harassment by the boss or third parties, not conduct by union members, which unions remain reluctant to address. As the Writers Guild of America West (WGAW) explained in its post-Weinstein statement, “the WGAW is a union, not judge or jury” (Ng 2018).

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The Screen Actors Guild–Federation of Television and Radio Artists (SAG- AFTRA) faced criticism for its initial response to the Weinstein scandal, and for its failure to address the issue before the scandal (Spector 2017; Ng 2018). Meissa Hampton, an actress and founder of the Actors Alliance for Gender Equity in Media, published an op-ed in the Guardian, where she outlined her efforts to secure the union’s attention to the issue of sexual harassment in 2015 (Hampton 2018). The actress authored a petition asking the union “to address gender inequities that fuel the culture of sexual abuse in the industry,” and suggesting an internal committee to tackle issues of discrimination. Her efforts failed. Similarly, the actress Mia Kirshner penned an op-ed for the Toronto Globe and Mail titled “I Was not Protected from Harvey Weinstein. It’s Time for Institutional Change” (Kirshner 2017). Speaking directly to her union, she cautions that “change does not mean publishing another well-meaning brochure or email blast about anti-harassment policies. Statements pledging support for survivors of sexual harassment and assault are not going to cut it” (Kirshner 2017).

While SAG-AFTRA’s president, Gabrielle Carteris, has now articulated a long- term, inclusive approach rooted in cultural change to eradicate sexual harassment, the union’s initial response was much more cautious, focusing on the union’s own liabil- ity. David White, SAG’s National Executive Director, explained in an email to a SAG board member, “This is one of those extremely big, emotionally sensitive, legally complex issues that has serious legal implications for SAG-AFTRA, as well as several of our members, who may look to us for protection as this process unfolds” (Robb 2017b). White also noted in that email that the union’s lawyers “are very involved to ensure we don’t have any missteps that bring on liability in any way” (Robb 2017b).

The union was involved in high-profile cases involving allegations of harassment by its members in recent years, which puts this cautious response in context. In 2015, for example, the union publicly battled the documentarian Amy Berg in relation to her film about sexual abuse of child actors in Hollywood (Robb 2015). The documentary, An Open Secret, included an interview conducted at the union’s offices with Michael Harrah, a former child actor, cofounder and former Chair of the union’s Young Performers Committee. The interview revealed Harrah’s questionable relationships with child actors; Harrah resigned from the SAG-AFTRA Committee a few days after the interview.

The feud between the union and producers involved references to SAG-AFTRA, which the union demanded be removed from the film entirely, and the producers refused. While the documentary did not place any blame on the union for the abuse, the documentarian repeatedly asked the union what it planned to do about the trou- bling allegations the film uncovered. The union told Berg that it is not a law enforce- ment organization, does not have the power to investigate crimes, and referred the producer to law enforcement (Robb 2015). This incident is instructive because it reveals the narrow view that the union held at that time about its responsibility to its members. A union spokesperson explained,

As a labor union, SAG-AFTRA negotiates and enforces collective bargaining agreements on behalf of our members and advocates for legislation and administrative policies

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benefitting the industry and our members. This has historically included particular efforts to protect young performers’ financial security and ensure their safety on set. (Robb 2015)

However, as the Weinstein scandal has taught, the vast majority of sexual abuse and harassment occurs off the set.

The union also faced its own internal harassment problems. In 2009, before its merger with AFTRA, SAG suspended the membership of actor Seymour Cassel for two years after the board of directors found that he had sexually harassed female staff members (Fernandez and Holloway 2009). Cassel was disciplined under the SAG Constitution, which allowed the board to suspend or expel union members who engaged in the sexual harassment of members or staffers on the grounds that it was “conduct unbecoming a member.” After the merger in 2012, however, the constitution was changed: it no longer contains the words “sexual harassment” or “conduct unbe- coming a member” (Robb 2017a).

Carteris’s fresh take on the issue offers hope. “Real and sustained change takes time, but with determination and strong buy-in from members and industry allies, this can be a watershed moment. Everyone has a part to play, and the movement toward a workplace in which all workers can feel safe and secure is only beginning,” she told members (SAG-AFTRA 2018). In front of an audience of millions at the SAG-AFTRA awards in January 2018, Carteris used the stage to cement the union’s commitment to leading essential cultural change.

Under her leadership, the union is carving a pathway to change in a variety of ways: through multilevel membership engagement and education, active participation in internal industry efforts that involve employers and other unions, and bringing an inclusive workers’ perspective to Time’s Up, an initiative of high-profile actors to fight sexual harassment and provide support for victims (SAG-AFTRA 2018). Carteris is aggressively articulating an intersectional understanding of sexual harassment and ensuring that the union’s efforts go beyond the provisions of the collective bargaining agreement (Greenwalt 2018). Given the precarious nature of many jobs in the industry, Carteris’s use of the bully pulpit to articulate a broad vision of unionism is particularly important. Workers who function in this complex environment need to know that their union has their back when they are advancing their craft, whether the contract covers them at that particular moment or not.

In February 2018, the union adopted an initiative, “The Four Pillars of Change,” whose mission is to identify “real solutions and actions that help members confront harassment while securing an equitable workplace” (SAG 2018). A new code of con- duct—central to the initiative—focuses heavily on the employer’s responsibility vis- à-vis sexual harassment. The union makes clear that such focus “isn’t a dodge.” Rather it is “an assertive reminder to our employers that they are required to do this and must take any and all steps necessary to comply” (Greenwalt 2018), an important distinction from those unions who evade their own responsibilities in addressing members’ claims by simply pointing members in the direction of the employer.

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The Writers Guild of America East (WGAE; 2018) has also conducted a holistic public review of its practices and developed a resource guide that prominently dis- played on the union’s website. Importantly, the union speaks up-front about its own role in eradicating sexual harassment in the workplace. The guide, titled “What Members Can Expect of Their WGAE Representatives,” reveals a broad understand- ing of the complexity of sexual harassment:

We understand that sexual harassment exists in the broader context of sexism and power imbalance, and our union is committed to transforming the culture and power dynamics that currently exist in our industries. This requires collective action as well as individual representation. We understand that addressing issues of sexual harassment and other inappropriate sexual conduct in the workplace requires us to foster a culture of mutual support with our members and with each other as union representatives. (WGAE 2018)

To its credit, the union lists its own responsibilities as a union when speaking with members about sexual harassment, and other inappropriate sexual misconduct in the workplace. Its pledge to its members includes a commitment to respond promptly to reports of harassment, to be compassionate and respectful, and to “believe, and not second-guess or doubt, members who bring incidents or concerns about sexual harass- ment to our attention” (WGAE 2018). It also notes various steps the union will take if the member so desires, including helping the person navigate the grievance process or legal system.

The AFL-CIO, by contrast, has maintained a low profile, focusing heavily on its own recently adopted code of conduct, perhaps not surprising given that the Federation suffered its own internal harassment scandal. According to Politico, “the AFL-CIO’s chief budget officer, Terry Stapleton, resigned Nov. 6 as Bloomberg prepared a story that he’d been disciplined for sending lewd text messages to a secretary and for press- ing her to come to this hotel room” (Kullgren 2017). Reports of long-time and exten- sive sexual harassment within the Service Employees International Union (SEIU) have also kept that union quiet on the topic (Lewis 2017). Scott Courtney, the architect of the Fight for Fifteen campaign, along with several lower staffers were fired or resigned after press reports of their long history of demanding sexual favors from female staffers (Kullgren 2017; Lewis 2017). Rather than shirking responsibility, this moment represents an opportunity for unions and especially for the AFL-CIO to look beyond codes of conduct and other issues of legal liability and bring the labor move- ment together to combat all aspects of sexual violence at work. As American Federation of Teachers President Randi Weingarten (2017) said in a statement following the Bloomberg story (Eidelson 2017),

You can’t talk the talk of civil rights and economic dignity without walking the walk. Unions, more than most, must understand that lesson, and we must do everything we can to ensure our workplaces are free from sexual harassment. That means, just as we criticized Trump and Weinstein and Ailes, we must have zero tolerance for sexual harassment in our own house. Creating clear and effective policy remedying sexual harassment is an important first step for the AFL-CIO, but it’s not sufficient. The

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AFL-CIO should lead, not follow, when it comes to workplace safety, which means not just reacting but creating an anti-harassment culture. Working women and their families must be able to have confidence and trust in their unions.

Moving Forward: Building Consciousness through Education, Culture Change, and Leadership

In the wake of press reports of sexual harassment inside labor unions, Linda Seabrook, General Counsel for Futures Without Violence, and I offered simple and practical sug- gestions of what unions can do to address sexual harassment today (Avendaño and Seabrook 2017). The practices are survivor-centered. They recognize that sexual harass- ment on the job is a particularly harmful violation, which unlike other forms of economic harm causes trauma for victims and others who witness the harassment. For that reason, unions should adapt how they investigate claims, and ensure that stewards are trained on how to deal with trauma. Other recommended practices include the following:

•• Negotiating language specific to sexual harassment in collective bargaining agreements, along with a mechanism to ensure that stewards, members, staff and leadership understand the processes for enforcement.

•• Addressing member-on-member harassment. Unions should investigate claims of harassment, and not simply pass that responsibility to the employer. The employer’s investigation is driven by its interest in limiting its own liability; the union’s investigation is necessary to protect the larger interests of workers, especially dignity, and to preserve solidarity. As such, the union would send a strong message by letting all members know that it will not pursue grievances to arbitration where a member has been found guilty of harassment by the union’s investigation.

•• Making sure that the union’s constitution and collectively bargained agree- ments contain guarantees against sexual harassment and retaliation. Specifying that officers must adhere to or uphold the union’s commitment to equal oppor- tunity and policies against discrimination sends a powerful signal to the membership.

•• Creating a union culture that connects values and behavior, and welcomes women as equal partners in the struggle for social and economic justice.

•• Focusing on prevention. Codes of conduct alone are not prevention. Culture change, training that focuses on the collective harm that sexual harassment causes in the workplace, and engages members, staff, and leaders are key.

•• Encouraging men, especially male leaders, to speak out, and work to change the culture. When men act as allies, they create the space for women’s voices to be heard and valued.

•• Creating informal channels for members, union staff, and others to report harassment quickly, before it escalates, without having to resort to formal mechanisms.

258 Labor Studies Journal 43(4)

•• Protecting victims who file charges of harassment against retaliation. Fear of losing her job or other punishments are among the main reasons victims do not report sexual harassment. Harassers who are not held accountable for their con- duct not only continue to harass but also often empowered by each act for which they fail to face consequences.

•• Giving survivors a voice in the grievance process and including them as active participants. Complaints of sexual harassment are often shrouded in secrecy, ignoring the victim’s trauma and treating her as nothing more than a witness. Unions have the power to change that by giving the survivor control and a voice in the process.

We have been heartened by the response to those ideas. The Oregon State Federation adopted our solutions in a resolution at its 2017 Convention (Oregon AFL-CIO 2017). Labor Councils and unions have contacted us for training. Unions have also sought our Helpance in developing sexual harassment–specific language in their contracts. Clearly, many unions have the desire to move forward constructively. Adequately resourcing labor education efforts in partnership with university labor educators and others who are experts in the field will be key.

Finally, as the only institution that brings together unions from every sector and industry and has the power to influence deep structural changes within organized labor, the AFL-CIO has an important role to play. At a minimum, the Federation could replicate the process it employed in 2008 when it brought all unions together to insti- tutionalize a change in the labor movement’s approach to another issue that many unions had not yet treated as core to their mission, immigration. Under the leadership of President John Sweeney, the Executive Council formed a Special Committee and brought former Secretary of Labor Ray Marshall—a trusted figure among all unions— to lead the process. In the eighteen months that followed, Secretary Marshall spoke to every union president whose members were touched by immigration. The effort revealed great disparities in how unions saw immigration, and in how employers’ manipulation of the system impacted various industries. In 2009, the AFL-CIO and Change to Win adopted a common of set of principles that guided unions’ responses to legislation (United Farm Workers 2009). More importantly, the Federation’s efforts also led to a deep transformation in how unions approach immigration, shifting pro- grams to an organizing and growth frame.

The AFL-CIO has the power to convene a similar process that would capture the different experiences of unions vis-à-vis sexual harassment. Women experience higher levels of harassment in male-dominated industries like construction, in service-based industries in which customer tips and employer approvals make workers vulnerable to abuse, and in low-wage jobs where workers have little bargaining power (U.S. EEOC). A multiunion effort that studies how harassment shapes the experience of workers in each of these sectors and industries would help unions craft collective and individual solutions. Such an effort would also build a greater consciousness among workers who are not yet represented by a union about the power that the union has in creating trans- parent mechanisms to hold all violators of workers’ rights accountable.

Avendaño 259

The AFL-CIO hosted a convening of unions and labor movement allies in February 2018 to discuss the post-Weinstein moment. With no mention of President Weingarten’s forceful call to action, the public portion of the convening featured various speakers on the importance of labor’s voice in the current moment. The unions retreated to a private meeting in the afternoon, and as of June 2018, the Federation had not announced its plans for moving forward. It is too early to tell if that effort will translate into transformational change, or whether the history books will reflect it simply as a public relations effort.

Unions remain the most powerful voice for working people in America, and the best vehicle to create a transparent, accessible system that empowers those who suffer harassment in the workplace to stand up collectively and individually against viola- tors. The moment demands intentional, well-resourced, genuine efforts from unions to do better.

Declaration of Conflicting Interests

The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.

Funding

The author(s) received no financial support for the research, authorship, and/or publication of this article.

Notes

1. The disparity in those numbers alone tells a story: when employees were asked, whether they had experienced “sexual harassment,” without defining that term, the responses were on the lower end of the spectrum; when respondents were given specific examples of behavior, the incident rates rose sharply (U.S. EEOC, 8-9). In other words, many people do not label certain forms of unwelcome sexually based behaviors, even if they view them as problematic or offensive as “sexual harassment” (U.S. EEOC, 8-9).

2. Jenson v. Eveleth Taconite Co., 824 F. Supp. 847 (D. Minn. 1993). 3. Despite the consent decree, from 1981 to 1990, women comprised 3 to 5 percent of the

Eveleth workforce (Jenson, 859). 4. 924 F.2d. 872, 873, 8883 (9th Cir. 1991)(referencing the union’s representation of Ellison’s

co-worker and harasser). 5. Robinson v. Jacksonville Shipyards, Inc., 760 F. Supp. 1486, 1516-17 (M.D. Fla. 1991). 6. Van et al. v. Ford Motor Company, Docket 1:14-cv-08708, N. D. Ill. 7. Vaca v. Sipes, 386 U.S. 171 (1967). 8. In one notable counterexample, AFSCME (American Federation of State, County and

Municipal Employees) made valiant efforts to advance a comparable worth agenda. Efforts failed, in part, because the male membership would not buy into it (Weiler 1986).

9. This is not to say that all male-dominated unions ignore sexual harassment. The International Brotherhood of Electrical Workers (IBEW) Local 3 in New York, for example, negotiated a six-hour diversity and inclusion-training program into its collective bargaining agreement with the electrical industry. The Worker Institute at Cornell University was among the training teams who helped develop and implement trainings for 1,400 members engaged in supervision on construction sites, with a particular focus on sexual harassment prevention.

260 Labor Studies Journal 43(4)

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Author Biography

Ana Avendaño is a vice president for Labor Engagement at United Way Worldwide, and for- mer Helpant to the president for Immigration and Community Action at the AFL-CIO. She also served as Helpant general counsel at the AFL-CIO and associate general counsel at the United Food and Commercial Workers International Union, as well as a staff attorney at the National Labor Relations Board (NLRB) and union-side law firms. The views reflected here are her own.

After Merger, SAG-AFTRA Constitution Dropped “Sexual Harassment” As Specific Cause For Expelling Members

After Merger, SAG-AFTRA Constitution Dropped “Sexual Harassment” As Specific Cause For Expelling Members

After Merger, SAG-AFTRA Constitution Dropped “Sexual Harassment” As Specific Cause For Expelling Members

SAG-AFTRA In Legal Quandary Over Expanding Sex Abuse Scandal

SAG-AFTRA In Legal Quandary Over Expanding Sex Abuse Scandal

https://www.facebook.com/uawforddept/posts/838229052913131
https://www.facebook.com/uawforddept/posts/838229052913131

Sexual Harassment and our Undemocratic Workplaces

CHANGE TO WIN AND AFL-CIO UNVEIL UNIFIED IMMIGRATION REFORM FRAMEWORK

CHANGE TO WIN AND AFL-CIO UNVEIL UNIFIED IMMIGRATION REFORM FRAMEWORK

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https://www.wgaeast.org/resources/sexual-harassment-resource-guide/
https://www.wgaeast.org/resources/sexual-harassment-resource-guide/
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