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Sexual harassment in the workplace, from Del Taco to Goldman Sachs.
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Sexual harassment in the workplace.
For full disclosure, this topic hits very close to home, so the tone of this issue might read a bit differently from our usual content. We have seen our close friends and colleagues impacted by sexual harassment and gender discrimination at work. We have seen this topic get mishandled in case study discussions within the business school classroom. One of our writers has reported an incident at a prior job. It’s a charged topic, but we think it is a disservice if we do not talk about it.
How prevalent is sexual harassment in the workplace?60% of women say they experience "unwanted sexual attention, sexual coercion, sexually crude conduct, or sexist comments" in the workplace. 90% of employees who experience harassment never file a formal complaint, and 75% never complain to their employers either.
Recently, in the news: A group of women Del Taco employees stated that male coworkers, “some in supervisory roles, directed sexual comments at them almost daily and touched them inappropriately.” Several women filed formal complaints but the company took no action. In fact, the company even retaliated and reduced one employee’s hours. Last week, it was reported that Del Taco agreed to offer companywide training on anti-discrimination laws and would pay $1.25 million to settle this sexual harassment suit. FYI, Del Taco made $513 million in sales last year (and Del Taco Restaurants Inc. has a market cap of $343 million), so this feels like a light slap on the wrist.
A recent survey of 1,600+ restaurant workers found that over 40% noticed more frequent instances of sexual harassment from customers since the pandemic. (If you want your blood to boil, see page 13 of the previous link for a table of all the unwanted comments received from customers.)
It’s not just the service industry. Last week, a RAND report found that 20% of employees at the Federal Emergency Management Agency (FEMA) say they’ve experienced harassment or discrimination on the job, according to a survey of ~9,000 workers. The majority of people who encountered harassment did not report, and of those who did report, 30% experienced retaliation (46% of those who reported racial harassment experienced retaliation).
Didn’t the #MeToo movement in 2017 change things? According to data from the Equal Employment Opportunity Commission (EEOC), the number of reported sexual harassment cases increased by 14% in the year after #MeToo. In 2019, employers paid out a record $68.2 million to those alleging sexual harassment violations through the EEOC, a 20% increase from the previous all-time high set in 2018 of $56.6 million.
Considering the relatively unsubstantial employer payouts prior to 2017, it seems that the #MeToo movement has had influence on the severity of punishing sexual harassment.
Yet, in 2019, 39,000+ retaliation claims were filed, representing nearly 54% of all claims filed with the EEOC. This is the highest percentage ever, and 18th year in a row that the EEOC has seen an increase in retaliation. So there is certainly much more room for improvement.
Power dynamics persist. Last month, Goldman Sachs hired Roberta Kaplan, the chair of the Time’s Up governing board of directors and co-founder of the Time’s Up Legal Defense Fund, to defend the bank against a sexual harassment retaliation lawsuit. Goldman’s former associate general counsel, Marla Crawford, claims she was fired after trying to keep the bank accountable when the Bank’s Global Head of Litigation, Darrell Cafasso, sexually harassed a female subordinate.
While Goldman is arguing to have the case handled confidentially, Time’s Up has notably fought back against unfair policies like confidential arbitration. (Confidential / forced arbitration is often put into employment contracts and is a growing practice that affects 60+ million workers in the US.) Crawford called out the hypocrisy, “Goldman’s position that my claims must be arbitrated in secrecy sends a terrible, anti-#MeToo message to other women at Goldman that the Bank does not value transparency and does not believe those who raise claims are entitled to a fair process of adjudication. This position will set Ms. Kaplan’s work—and the good work of many others at Time’s Up and otherwise—backward rather than forward.”
There’s usually more under the surface. According to Susan Fowler, the sexual harassment whistleblower at Uber, “[s]exual harassment is often the tip of the iceberg for other kinds of labor violations and misconduct.”
When we think about Uber or Goldman Sachs (#TBT to when we covered the 1MDB scandal), it is perhaps unsurprising that sexual harassment coexists with other ethical concerns at these companies.
As an employee:
Robust HR policies and trainings are key: Do you know your workplace’s sexual harassment policy? Who would you report a complaint to? (If your employer doesn’t have a policy, check out Nolo’s guide for effectively implementing a sexual harassment policy.) We have sat through our share our cringe-worthy sexual harassment trainings. Check out EverFi’s list of ideas to increase the effectiveness of trainings.
Know your rights: In most cases, you will need to file a Charge of Discrimination before filing any lawsuits against your employers (there are stipulations, like your workplace has to have 15+ employees and you likely need to file within 180 days of the incident). These are ACLU’s suggestions on how to protect yourself from retaliation (including defamation lawsuits) after reporting sexual harassment.
Fight against forced arbitration: Remember the Google walkout last year, where 20,000 Google employees and contractors around the world walked off the job to protest the company’s response to sexual harassment claims? The company has since dropped its use of forced arbitration. These Googlers have been laying the groundwork -- check out their 2-pager on how to talk about forced arbitration at your work and their website for more resources.
As a citizen:
Learn more about forced arbitration repeal: The Forced Arbitration Injustice Repeal Act (FAIR Act) passed in the House last year. Learn more about why forced arbitration should be repealed from this ACLU article: “Forced arbitration has had the effect of slamming the courthouse doors in the face of victims of workplace harassment and discrimination, and is a huge boon to employers.”
As a consumer:
So many books: Susan Fowler’s Whistleblower: My Journey to Silicon Valley and Fight for Justice at Uber. Ellen Pao’s Reset: My Fight for Inclusion and Lasting Change. Ronan Farrow’s Catch and Kill: Lies, Spies, and a Conspiracy to Protect Predators. Just for starters...
As an investor:
Invested in toxic cultures? Post #MeToo, limited partners (e.g., university endowments, pension funds, etc.) faced increased scrutiny for allocating dollars to venture capital funds that have partners who have later faced sexual harassment accusations. Very few had concrete policies for evaluating sexual misconduct in due diligence. It was even reported that some “asset managers ‘did not take it seriously or did not understand why we were asking [about sexual misconduct].’”
Facebook Faces U.S. Lawsuits That Could Force Sale of Instagram, WhatsApp: “The lawsuits are the biggest antitrust cases in a generation, comparable to the lawsuit against Microsoft Corp in 1998. The federal government eventually settled that case, but the yearslong court fight and extended antitrust scrutiny prevented the company from thwarting competitors and is credited with clearing the way for the explosive growth of the internet.”
The End of Micromanagement and Axios’ Deep Dive on Philanthropy: There are honestly many other interesting nuggets in this article, but one highlight: “Paternalism is giving way to humility, and the idea that no-strings checks can be much more useful than micromanaged projects and a cycle of endless grant applications and donor reports. That's one reason for the rise in popularity of simple cash transfers.”
The Children of Pornhub: “I don’t see why search engines, banks or credit card companies should bolster a company that monetizes sexual assaults on children or unconscious women. If PayPal can suspend cooperation with Pornhub, so can American Express, Mastercard and Visa.”
About 150 U.S. Cadillac Dealers to Exit Brand, Rather Than Sell Electric Cars: “The skepticism from some Cadillac dealers underscores that, even as investors bid up the value of electric vehicles, questions persist about interest among consumers and the retailers who serve them.”
Tesla Diversity Report Shows Its US Leadership is 59% White and 83% Male: “‘Increasing women’s representation at all levels, especially in leadership, is a top priority in 2021...[And we] know that our numbers do not represent the deep talent pools of Black and African American talent that exist in the US at every level,’ the report states.”
Exxon Under Pressure From New Activist Fund: “[Engine No. 1 LLC] has the support of California State Teachers’ Retirement System, the big pension investor, and expects other shareholders to be sympathetic to the cause...Engine No. 1’s letter calls on Exxon to make four primary changes: 1) add independent directors with diversified energy-industry experience; 2) reduce capital expenditures, particularly on projects that are unlikely to break even with sustained low oil and gas prices; 3) formulate a plan to invest in growth areas such as renewable energy; and 4) realign management incentives.”
Stay connected via our Instagram, Twitter, Medium, and, of course, email (firstname.lastname@example.org)! Please invite any friends, roommates, coworkers, armchair activists, and employment lawyers to join the movement. See ya next Thursday!