If the #MeToo movement has taught us anything, it’s that, five decades after sex became a protected class under Title VII of the Civil Rights Act that prohibits discrimination in employment, we still have a long way to go in ensuring equal workplace treatment and freedom from harassment regardless of gender or sexual identity. Much of the change must come at the level of societal and workplace culture to make sure that all individuals are valued for themselves and their contributions equally, without bias on the basis of gender identity, sex or sexual orientation. However, in addition to what the #MeToo movement has revealed about our cultural failings with respect to gender equality, it has also laid bare some of the ways in which current policies perpetuate discrimination and harassment in employment. While we invest in changing our cultures around policy, we must also advocate for policies that enable those who perpetrate harassment and discrimination to be effectively held accountable.
There are several federal policies that should be implemented to help achieve accountability and equality in the workplace. The first is to ban the use of non-disclosure agreement (NDA) provisions in cases of workplace harassment and discrimination settlements agreements, except in the event that such an agreement is requested by the complainant. We must not allow NDAs to be used as a means to cover-up and further harassment and discrimination in the workplace. This will also incentivize employers to ensure that they have effective prevention systems in place to combat harassment in the workplace before it occurs.
In addition, we can no longer allow companies to use contract provisions that limit workers’ and consumers’ rights and their ability to hold companies accountable for civil rights violations. One of these practices is the widespread use of forced arbitration provisions. Workers should not be forced to preemptively agree to private arbitration as a condition of employment. Arbitration proceedings limit the legal options for workers, including the ability to be heard by a jury. Arbitration provisions also leave workers without other avenues to appeal the outcome of the proceeding. Consumers should equally not be forced to sign away their right to sue just to open a bank account or a credit card. This is why I support the Forced Arbitration Injustice Repeal Act to ban forced arbitration in civil rights, employment, consumer, or antitrust disputes.
Other legal practices that require reform include class-action and jury-trial waivers. Class-action lawsuits allow workers and consumers to join together in the same claim and share the costs of legal action. Without the ability to engage in class-actions, workers must decide whether the damages they could win are greater than the costs associated with pursuing their claim, including court fees and retaining legal counsel. Too often, the worker decides not to pursue their claim. Some contracts also require waiving the right to a jury trial as guaranteed to all citizens of the United States by the 7th Amendment of the Bill of Rights. No one should be forced to waive their constitutional rights. In Congress, I will work to explicitly ban the use of coercive contract provisions that require workers and consumers to sign away their constitutional rights or their right to bring joint legal action.
We must also extend federal protections against harassment and discrimination to more employees in the workplace. Current federal law only covers employees of companies or agencies with more than 15 employees. This leaves significant portions of the workforce—such as domestic workers—vulnerable to harassment or discrimination without access to remedial action. We must amend the law to ensure that Title VII workplace protections cover all employees of all companies or agencies.
Finally, one of the challenges to effectively combating harassment is the lack of good data to understand the shape and scope of the problem. To address this challenge, I support mandating the EEOC and BLS to collect systematic data on workplace harassment and discrimination by conducting anonymous biannual surveys of workers. We know that instances of sex and gender-based harassment are severely underreported, and collecting this data while protecting the identity of workers will help us understand the scope of the problem and shape future solutions to truly achieve workplace equality.