This month, in what felt like the legislative culmination of months of activism through the #MeToo and Time’s Up movements, Senators Kamala Harris (D-CA) and Lisa Murkowski (R-AK) introduced the Ending the Monopoly of Power Over Workplace harassment through Education and Reporting Act, or the EMPOWER Act.
In a press release after the bill was introduced, Harris said that “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. It’s time to address the gaps in our laws that allow this misconduct to go unpunished and keep it in the shadows.”
The bipartisan bill represents an effort to protect women in the workplace by breaking down the power imbalance that often leads harassment to either go unreported or be buried within the files of companies that choose not to do anything about it. It’s a way to not only hold those responsible accountable, but to protect those who are most vulnerable.
The EMPOWER Act is already garnering widespread support from women’s and employee groups. The president of the National Partnership of Women and Families praised the bill for making “a meaningful difference for women, including those who face the largest power imbalances in the workplace, such as domestic workers, farm workers and restaurant and retail workers.”
The executive director of the National Employment Lawyers Association wrote in a statement that the group applauds Senators Harris and Murkowski for introducing this important legislation and “calls on every senator to help enact it into law.”
Perhaps the most publicized part of the bill is the removal of nondisclosure agreements as a tool to silence victims and allow for harassment patterns to continue. When victims are forced to sign these agreements under threat of being forced into a long, expensive and arduous litigation, the predators are the ones being protected. In these cases, the abusers can’t be held civilly or criminally liable for their actions, and because their accusers can’t speak out, the abuse might continue.
The widespread use of these agreements found increased public scrutiny after the revelations of harassment accusations of high-profile personalities such as Bill O’Reilly, Harvey Weinstein and Matt Lauer. The bill’s removal of NDAs as a requirement of victims of harassment in the workplace will allow them to have more power in the process of reporting their abuse and negotiating a settlement.
EMPOWER also attacks companies that allow systematic harassment in several ways. The establishment of a confidential tip-line for victims will supplement the formal complaint process through the Equal Employment Opportunity Commission, allowing authorities to track companies that display patterns of abusive behavior with no consequences.
Companies will be required to report settlement amounts related to workplace sexual harassment in filings with the Securities and Exchange Commission and will not be able to deduct expenses related to harassment litigation from their taxes.
Finally, in a preventative effort, the bill requires the development of workplace training programs to educate employees on their rights, what sexual harassment looks like and how to report it. In an era when employees are suddenly nervous about whether the actions they previously thought were innocuous are in fact abusive, this particular provision has the potential to revise the culture of the workplace and make employees more confident in recognizing and reporting behavior that makes them uncomfortable.
Just a year ago, it would have been difficult to imagine a bill like this getting so much public support. It’s not that the general public ever really supported the idea of sexual harassment up until recently, but it wasn’t until the revolution sparked by accusations against Hollywood producer Harvey Weinstein in October of last year that people finally started to realize how pervasive of an issue it really is.
The #MeToo and Time’s Up movements that were sparked as a result of the scandal brought to light a sleazy corporate culture that has prevented many victims from speaking out against their harassers. But while the public has only recently begun to mobilize against workplace harassment, the legal and legislative fight preceding the EMPOWER Act’s introduction spans decades.
It’s estimated that 81 percent of women and 41 percent of men have experienced sexual harassment at some point. More specifically, 38 percent of women say that they have experienced harassment in the workplace.
Women are far more likely to be the victims of harassment due to the fact that they are less likely to be in positions of power in their place of employment. These instances tend to intensify when women enter a traditionally male-dominated line of work, such as construction or STEM fields.
In 1964, Title VII of the Civil Rights Act banned employment discrimination based on sex, race, religion or national origin. It wasn’t until 1986, however, that the Supreme Court found that sexual harassment in the workplace was a form of sex discrimination due to the hostile environment that it creates.
Since then, Congress has made several legislative attempts to curb harassment in the workplace. The 1991 Civil Rights Act gave victims possibility of a jury trial for harassment or discrimination as well as the ability to receive punitive damages and compensation.
These steps were essentially a full acknowledgement from the government that sexual harassment is a pervasive issue in the workplace. But what the legislation failed to do was protect victims from loopholes and flaws in the system. That is exactly what the EMPOWER Act is trying to rectify.
The bill will not solve the issue of sexual harassment. It’s the result of decades of degrading attitudes toward the idea of women in the workplace, and it will continue to be prevalent as long as there are power imbalances within companies.
But EMPOWER takes the step of ensuring that victims of harassment feel like they have a voice and don’t have to witness their abusers being protected. While it will be some time before the bill is able to be put up for a vote, its introduction is enough to indicate that Congress is listening to those who have been working towards making a change.
