Congress introduced comprehensive legislation on Wednesday to hold employers accountable for sexual harassment in the workplace and put an end to controversial nondisclosure agreements that prevent victims from speaking publicly about harassment out of fear of legal retaliation or losing their jobs.
The bipartisan legislation comes several months after high-profile sexual harassment scandals and the #MeToo movement began rocking the media and thrust the conversation around toxic masculinity and workplace power dynamics into the mainstream headlines. However, similar efforts to address sexual harassment at work, in rental housing and even in Congress itself have stalled because the Republican majority has failed to bring the bills to a vote.
The bill, known as the EMPOWER Act, is backed by a coalition of progressive groups and received a warm welcome from the National Domestic Workers Alliance (NDWA), which represents low-wage workers, mostly women working in the homes of their employers, which puts them at particular risk for experiencing sexual harassment on the job.
Antonia Peña, a domestic worker and organizer with the group, said that for childcare providers, home health aides, house cleaners and other domestic workers, sexual harassment on the job is not the “exception,” it’s “the rule.”
“Along with low wages and poor work conditions, domestic workers have to put up with sexual harassment with very few laws to protect us,” said Peña said in a statement. “All people deserve to work with safety and dignity. The EMPOWER Act is one way we are breaking the silence.”
Title VII of the Civil Rights Act of 1964 prohibits sexual harassment in the workplace, but as the flood of stories from the #MeToo movement has shown, sexual harassment at work is a widespread problem, especially for women, LGBTQ people, immigrants, tipped workers and low-wage workers. Surveys have found that between 25 and 85 percent of women say they have been sexually harassed at work, but a majority of cases go unreported, according to the National Women’s Law Center.
The EMPOWER Act is designed to break the “monopoly of power” in the workplace that has long allowed bosses who control paychecks and promotions from silencing those who experience sexual harassment, according to a fact sheet released by the bill’s backers. The bill would prohibit businesses from forcing employees to sign nondisclosure agreements that cover workplace harassment as a condition of employment, promotion, compensation, benefits or change in employment contract.
Employers in a range of industries have used such nondisclosure agreements in contracts and legal settlements to prevent victims of sexual harassment from going public about the abuse. “Mandatory” or “forced arbitration” clauses in employment contracts are also used to push those seeking accountability for sexual harassment into isolating, closed-door arbitration proceedings that are often controlled by the employer. Forced arbitration clauses were recently upheld by the Supreme Court.
Such contract provisions leave employees uncertain of whether they can speak up about workplace harassment without losing their jobs or being sued by their bosses, which perpetuates a “culture of silence,” according to the EMPOWER Act fact sheet.
“The culture of fear and silence created by perpetrators of sexual harassment in the workplace has existed for far too long and must come to an end,” said Sen. Kamala Harris, who introduced the bill in the Senate along with Republican Sen. Lisa Murkowski, in a statement. “It’s time to address the gaps in our laws that allow this misconduct to go unpunished and keep it in the shadows.”
The EMPOWER Act would not prohibit “forced arbitration” clauses or nondisclosure agreements in legal settlements — the National Women’s Law Center points out that some victims of sexual harassment may prefer sealed settlements to protect their privacy — but it would prohibit language in employment contracts preventing employees from going public about sexual harassment and criticizing the companies for allowing it to happen.
Outrage over nondisclosure agreements has been building since The New York Times revealed that such practices protected film producer Harvey Weinstein for decades despite facing sexual harassment allegations from a number of women. Similar scandals have erupted at Fox News, but sexual harassment is not just a problem in Hollywood and the media.
Low-wage workers are particularly vulnerable because they fear speaking out could cause them to lose employment they need to survive. A 2016 study found that two in five women working in fast food reported sexual harassment on the job, including 28 percent who experienced multiple incidents of harassment. An alarming 42 percent of those who reported unwanted sexual behavior felt they had to accept it because they could not afford to lose their job, including 47 percent of Latinas.
In May, women of color working at McDonald’s restaurants demanded a sweeping federal investigation into sexual harassment at the global fast-food chain’s franchises in an effort to force change across the entire industry.
The EMPOWER Act would supplement the current complaint process at the US Equal Employment Opportunity Commission (EEOC) with a confidential tip line designed to help the commission and state agencies to target employers that allow systemic harassment. The bill would also require publicly traded companies to disclose the number of judgments and settlements resulting from sexual harassment claims in annual financial disclosures filed with investors and the government.
About one-quarter of the nearly 30,000 complaints filed with the EEOC in 2016 alleged sexual harassment, and 83 percent of the sexual harassment complaints were filed by women, according to the commission and the National Women’s Law Center.
Currently, companies can write off the cost of litigating and settling sexual harassment claims from their taxes, which effectively allows companies to treat the problem as another “cost of business.” The EMPOWER Act would prohibit these write-offs and protect settlements won by victims as non-taxable income. The bill would also require companies to develop training programs to help employees at all levels understand how to prevent, identify and report sexual harassment at work.
While lawmakers from both parties and advocates for women have welcomed the EMPOWER Act, it remains unclear whether the Republican leadership will bring the bill to a vote before midterm elections.
“The #MeToo movement has shown that sexual harassment is all too pervasive for women regardless of where we work,” said Sharmili Majmudar, interim CEO of the advocacy group Women Employed, in a statement. “We encourage all members of Congress to make this bill a priority to ensure its passage.”
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