Strategies for Combating Sexual Harassment: The Role of Labor Unions

I. IntroductionSexual harassment is a major problem in today's workplace. The large number of charges filed with the EEOC annually and the results of workplace surveys demonstrate that harassment, with its devastating consequences for the target of the harassment and for workplace productivity and morale, is widespread and ongoing. Employer promulgation of harassment policies with complaint procedures, fueled by the Supreme Court's jurisprudence,1 has not resolved the problem of workplace harassment. To combat legal liability, it is common for employers to establish draconian anti-harassment policies, which purport to proscribe even conduct that does not rise to the level of unlawful sexual harassment and to require severe penalties for violations of the policy. Despite such policies, sexual harassment persists. Harassed employees still decline to report harassment in large numbers, and even when reports are made, enforcement is often lacking. Further, the policies focus on preventing liability rather than creating a nondiscriminatory workplace.The unionized workplace, despite its greater protections for workers in general, has not been immune from harassment. Indeed, some of the harassment horror stories emerge from unionized employers.2 While some unions have effectively addressed harassment, others have been part of the problem rather than the solution. Unions, however, have the potential to address some of the problems that have resulted in the persistence of harassment despite legal and employer prohibitions.The gendered nature of most unions may suggest great difficulty in convincing them to make ending sexual harassment a priority,3 but unions ignore or participate in sexual harassment at their peril. Unions should be in the forefront of the battle against harassment. It is not enough to state official opposition to harassment; unions should take a proactive role in addressing the problem. Activism on the issue will not only assist in preventing unlawful behavior and improving the workplace climate, but also will help the union to grow its membership and use its resources to obtain greater benefits for all workers.This article will discuss the role that unions do play and the role that they can play in eliminating workplace harassment. First, the article will discuss the problem of harassment in the workplace, documenting its frequency and analyzing its forms. section II will include an examination of harassment in the unionized workplace. section III will propose a number of reasons that unions should take the lead in addressing workplace harassment, some focused on workers' rights and others on union self-interest. Finally, in section IV, the article will recommend several approaches for unions that desire to be in the vanguard of the movement to make the workplace welcoming and productive for all workers. This section will analyze the unique role that unions can play in overcoming the obstacles which have thus far prevented successful initiatives for eliminating workplace harassment.II. Sexual Harassment in the WorkplaceA. The Nature and Scope of Sexual HarassmentSexual harassment in the workplace is a well-documented phenomenon. Catharine MacKinnon is widely credited with bringing both public and judicial attention to the problem.4 While initially courts refused to acknowledge sexual harassment as sex discrimination,5 in the 1970s, courts began to interpret Title VII's prohibition on sex discrimination to prohibit sexual harassment in the workplace.6 The EEOC issued guidelines on sexual harassment in 1980,7 and litigation began to grow.8 Scholarly attention also focused on sexual harassment, both in the social sciences and the law.9 Scholarship and surveys quickly revealed that litigated cases were only the tip of the iceberg. Only a very small percentage of individuals who reported being subjected to sexual harassment ever filed any sort of formal complaint.I0 EEOC charges alleging sexual harassment increased, however, when Congress amended Title VII in 1991 to permit compensatory and punitive damages and jury trials, creating the possibility of damages for hostile environment cases. …