Reposted from Women’s Law Project
Today, WLP Managing Attorney Terry L. Fromson shared our recommendations for reforming laws regarding sexual harassment in the workplace in Pennsylvania while testifying at the Pennsylvania House Committee on Labor and Industry public hearing on harassment and sexual misconduct in the workplace.
We have represented victims of sexual and domestic violence and advocated for the systemic improvement of societal response to sexual harassment and misconduct in the workplace, in our schools, and in other venues. Having worked for decades to improve the status of women in the workplace and in society, we appreciate the courage of women coming forward to publicly share the behavior to which they have been subjected and the response of employers who have taken steps to eliminate harassment from the workplace.
Eighty-five percent of women report experiencing harassment. They report harassment by movie moguls, television personalities, journalists, and orchestra conductors, among others. The harassers are victimizing women in the entertainment industry, in the auto factories, and in restaurants and coffee shops where tips control their income and make them afraid to report for fear of losing their jobs. Where men are in charge, and where women are few, sexual harassment is more pervasive. And that includes, of course, in legislative bodies across the country such as ours, where the harassed include lobbyists as well as legislators and staff.
The opportunity for real change is upon us. In moving forward to make change we have, in concert with other lawyers and advocates, generated a list of recommendations to improve the law and make relief more readily available and appropriate to individuals subjected to sexual harassment.
Before listing the reforms that we recommend, we emphasize that legislative reform in this area should not be limited solely to sexual harassment. Harassment based on race, ethnicity, and other protected categories are equally harmful and malicious. One form of harassment should not be treated differently than other forms. In addition, in fashioning reform we need to remember that harassment is not limited to the workplace and changes in the law should not be limited to just employment. Sexual harassment occurs in other contexts.
It is also important to make reform victim-centered, meaning the complainants choose how to proceed and options are not chosen for them so as not to deprive a complainant of either autonomy or a remedy.
We recommend a number of reforms that can be taken now.
Mandate adoption of employer policies and procedures for individuals with complaints of sexual harassment as well as training of employees and employers about their rights and obligations. In the workplace, employers are the first person to whom a person who was subjected to sexual harassment may report. Employers need to understand their obligations and make sure their employees are aware of procedures they can pursue and remedies available to them. Employers, public and private, can stop the harassment. This includes the Pennsylvania General Assembly and House Bill 1965 can achieve this outcome.
Expand access to the remedies offered by the Pennsylvania Human Relations Act. Administrative agencies are the next avenue an individual may go to for help. We have multiple layers of agencies who enforce federal, state and local anti-discrimination laws, all of which have different thresholds for the size of employers to which they apply and possibly different interpretations of the scope of their reach. Title VII applies to employers with 15 employees. The Pennsylvania Human Relations Act (PHRA) only applies to employers with 4 or more employees. The local agency thresholds vary from 1 to 4 to more. This means some people have no statutory remedy for harassment because of geography and/or size of their employer. Why should an employer be allowed to harass an employee if it only has 3 employees? Or be relieved of the obligation to prevent and address harassment? As the state law that covers all Pennsylvanians, the PHRA’s employee threshold should be reduced to 1.
The PHRA also needs to be expanded to cover more than just employees, individuals who under the law are considered to be under the control of the employer. Independent contractors need to be protected beyond those who are subject to state licensing laws. Unpaid interns and volunteers are equally if not more vulnerable to sexual harassment and should be covered.
Exclusions long written into the law for agricultural and domestic workers should be removed. They are rooted in explicit racial discrimination and there is no logical basis for leaving these workers unprotected. Likewise, coverage of sexual harassment and discrimination based on gender, gender identity, gender expression and sexual orientation should be codified.
The time for filing complaints should be extended to afford individuals more time to consider their options. The trauma from the harassment and the concerns and fears that prevent victims from filing complaints right away need to be acknowledged in allowing more time to file.
Once filed, the complaints need to be promptly and timely addressed. The same trauma and fears that may prevent filing quickly may be heightened once a complainant has begun the process. Prompt resolution of the complaint is important to addressing the heightened stress. The PHRA has been understaffed a long time and the agency is delayed by many months in even determining whether the complaint is within its jurisdiction let alone resolving it. It is critical that this agency be given the resources it needs to function timely and optimally.
The PHRA should also be amended to allow for jury trials and compensatory and punitive damages. These remedies have been standard under Title VII since 1991. Such remedies will incentivize employers to prevent sexual harassment and provide greater relief to a complainant.
Transparency is another arena for reform. In response to public outcry that non-disclosure agreements hide serial predators, proposals are being made to ban non-disclosure agreements. We believe strongly that non-disclosure agreements on employees at the time of hire should be banned. Such agreements would prevent an employee from filing a complaint of sexual harassment with a public agency. They would prevent employees from informing their co-employees of serial harassers.
However, our perspective on non-disclosure in agreements in settlements – either before or after a lawsuit is filed – is more nuanced. Many of the settlements that include non-disclosure agreements are private and not under the administration of a court. Court approved settlements are less likely to be confidential as the court has the obligation to balance the public’s right to know against reasons for confidentiality. The impetus to prohibit nondisclosures in settlements of sexual harassment lawsuits has the objective of “outing” the harasser and thereby preventing this individual from harassing in the future. Sexual harassers are often serial harassers and we do not want serial harassers to remain hidden.
On the other hand, there are complainants who want privacy, not publicity. Particularly those who cannot afford legal proceedings and who want a prompt resolution so they can move on. They might want to leave the harassing environment and obtain financial resources for the resulting gap in their employment or need financial resources for therapeutic intervention resulting from the trauma caused by the harassment. Settlements allow for this. Not every person who has been sexually harassed in the workplace wants a public document that describes the offensive and disgusting behavior to which she or he was subjected or even the fact that a claim exists.
Terry L. Fromson’s testimony discusses our position on non-disclosure agreements in more detail. You can read or download the testimony here.
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