Long past time to expand workplace harassment laws
In December 2017, five Latina kitchen workers filed a federal sexual harassment lawsuit against their employer, the national restaurant chain McCormick & Schmick’s. The women said that they were subjected to sexually offensive comments and groping by male co-workers, including several supervisors, at the restaurant’s Faneuil Hall location. One of the women said the executive chef told her, as he grabbed his crotch, “this is your food.” A sous chef allegedly followed one of the women into a walk-in cooler and groped her.
The lawsuit came at the height of the #MeToo movement, yet was unmistakably different. At the time, the movement had uncovered stories of sexual harassment and discrimination in white-collar spaces like Hollywood and corporate America. It brought down powerful, abusive men, some of them household names. In contrast, the McCormick & Schmick’s case, which quickly made national headlines, shed light on abuse perpetrated in a dark corner, on workers invisible to most. The case was among the first made public that converted #MeToo into #YoTambién.
“It was about vulnerable people who had been overlooked in the national conversation about sexual harassment,” said Sophia Hall, an attorney for Lawyers for Civil Rights who is involved in the lawsuit. “It amplified the voices of low-wage, Spanish-speaking workers in the #MeToo context.” (The company said it responded appropriately to the workers’ claims and that it “did all we could to restore the workplace to a harassment-free environment.”)
Fast-forward to 2019. The urgency of #MeToo has mostly faded. Locally, the Massachusetts Commission Against Discrimination revealed in its annual report that the number of sexual harassment claims filed has significantly decreased in recent months from peaks last year. But the Latina workers’ legal case, which is ongoing, speaks to why US Representative Katherine Clark, of Melrose, and Senator Patty Murray of Washington sponsored the Be HEARD Act in Congress.
The legislation grows out of a study that Murray, as the ranking member of the Senate Committee on Health, Education, Labor, and Pensions, commissioned to identify “areas where federal support and legal protections fall short.” The study found loopholes galore. For instance, it found that federal anti-discrimination laws leave out somewhere between 12 and 20 million Americans because they work for small businesses and the laws apply only to employers with 15 or more workers. And it found procedural obstacles and difficulties obtaining legal representation — both of which can deter workers from pursuing cases.
“What we need to do is evolve from #MeToo and Time’s Up to include every worker from every walk of life,” said Representative Ayanna Pressley of Boston, a co-sponsor of the bill, in an interview. “[This bill] goes from Hollywood to Congress to the boardrooms to domestic workers to restaurants to field workers.”
The far-reaching legislation would empower back-of-the-kitchen workers, food servers, housecleaners, nannies, and other low-wage workers for whom harassment and discrimination have been found to be more prevalent and more likely to be swept under the rug. It would clarify that civil rights protections for discrimination and harassment do apply to LGBTQ workers. And it would expand those protections for workers at small businesses, independent contractors, interns, and trainees, among others who are not explicitly covered under current federal law.
Among other provisions, the bill would clarify the standard workers must meet to prove harassment claims in court and lengthen the statute of limitations to file federal claims from 180 days to four years. The short timeline to bring a harassment claim has been cited as a huge barrier for workers, given the complicated emotional and legal factors they must weigh before filing a complaint. It would ban companies from requiring mandatory arbitration and pre-dispute nondisclosure agreements, and create limited conditions under which post-dispute nondisclosure agreements could be signed. NDAs, for example, could only be agreed upon as part of settlements in cases where the sexual harassment victims do not want publicity.
And it would provide grants for preventing and addressing harassment and employment discrimination, including grants for legal assistance to low-income workers.
Crucially, the bill would also eliminate the tipped minimum wage, which has been found to exacerbate harassment in workplaces where tipping is common. Because wait staff in restaurants rely on customers’ tips to make up a chunk of their salaries, it creates an unbalanced power dynamic that renders them disproportionately susceptible to workplace abuse.
The Be HEARD Act represents the kind of systemic change needed to legally protect the many American workers whose stories of harassment stay in the shadows. At a time when the federal government under President Trump has challenged longstanding interpretations of federal civil rights statutes protecting minority populations from workplace discrimination, it’s imperative to close existing loopholes and extend to all employees the protections that most workers take for granted.