6. Sexual Harassment and Solidarity

Abstract

In the waning months of 2017, Americans endured an almost daily barrage of news reports describing sexual harassment by powerful men in entertainment, media, politics and law. While sexual harassment had been headline news before — most notably, during the 1991 Anita Hill-Clarence Thomas debacle — never had so many victims joined hands and come forward demanding change. The media spotlight presented a tremendous opportunity to reframe sexual harassment from an individual, personal and idiosyncratic instance of sexual desire to a common abuse of gender and economic power affecting millions of working women and men on a daily basis. Feminist legal scholars have known for years that expectations about appropriate gender roles create an environment where sexual harassment functions to protect male privilege. But the message that sexual harassment is a systemic feature of workplace gender inequality never reached the general public. Instead, the mainstream media’s systematic focus on sexual harassment as a twisted manifestation of male sexual desire grabbed headlines and implied that when the harasser is discharged, the story ends. But sexual harassment is about much more than men behaving badly. It is a structural problem linked to unequal pay and occupational segregation by sex. One might think that labor unions would come forward as advocates for such a large segment of workers suffering economic disadvantage in the workplace. Yet despite the frequent use of the word “solidarity” in media reports about #MeToo, organized labor was conspicuously absent from the dialogue. While union leaders made public statements denouncing sexual harassment and promised to redouble union efforts to eradicate it, most disclaimed legal responsibility for preventing and addressing sexual harassment in the workplace. Not all the blame for labor’s passive stance can be laid at labor’s doorstep, however. Unions are hamstrung by a legal structure that creates a fundamental role conflict where they represent a workforce that includes both potential harassers and victims, and NLRA protection for worker concerted action for mutual aid has been cabined by courts and the Board to the point that labor’s tradition of solidarity is barely recognizable. What, then, are the prospects for engaging unions in combating workplace sexual harassment? And how could a more proactive role for labor be realized within the existing legal structure? The answer is both deceptively simple and complex: unions must take sexual harassment seriously. This means not only cleaning labor’s own house, but dedicating resources to efforts in partnership with feminist, civil rights and “alt-labor” groups in a coordinated campaign to challenge sexual harassment at the worksite and sectoral levels, modeled on the Fight for $15. A new, more collaborative understanding of solidarity will be essential. Unions should dedicate legal expertise to translating solidarity into labor law, pressing for an understanding of concerted activity for mutual aid that includes eradicating sexual harassment for the benefit of all workers. Finally, if ensuring redress for victims of sexual harassment were at the front of union consciousness, unions could invoke that goal as a lever to challenge employer rules that tend to silence efforts to raise rights-consciousness among victims or undermine claims assertion, such as rules prohibiting discussion of workplace investigations and arbitration clauses banning class claims. Ultimately, challenging sexual harassment could re-brand labor unions and offer an opportunity for partnerships with their social justice allies that would capture hearts and minds.