On December 6, 2017, Legal Momentum submitted testimony to the New York City Commission on Human Rights, which held a momentous hearing on how the city should address the longstanding problem of sexual harassment in the workplace. Here’s what Legal Momentum had to say:
Protecting the Most Vulnerable Women
High-profile sexual harassment complaints proliferate daily, shedding much-needed light on the fact that sexual harassment is endemic in all kinds of workplaces. It is essential that we capitalize on this raised awareness to safeguard the most vulnerable members of our workforce who too often remain in the shadows. Low-wage and immigrant workers in New York City and across the United States are especially vulnerable to exploitative workplace conditions. Current federal immigration policy is making this hardship even more acute for immigrant workers.
Through Legal Momentum’s Helpline, we regularly speak with, advise, and represent women facing sexual harassment in the workplace. We know, and continue to see, that sexual harassment results from an imbalance in power. For low-wage, immigrant women, this power imbalance is much greater, and their vulnerabilities are much more severe. They include:
fear of deportation or loss of eligible immigration status,
lack of economic security,
limited English proficiency,
lack of education regarding existing legal protections and reporting procedures,
lack of access to legal counsel or legal resources, and
physically isolating workplaces.
Taken together, these factors significantly increase the costs and risks of reporting abuse for low-income, immigrant women.
Well aware of these vulnerabilities, abusers exploit them. Consequently, sexual harassment is especially prevalent in low-wage sectors and industries with higher levels of labor and employment violations, such as agriculture, manufacturing, retail, hotel and restaurant services, home health care and child care, and cleaning and janitorial services. Moreover, the most vulnerable women tend to be subject to the worst violations: sexual harassment in this context frequently involves sexual violence and abuse.
Requiring Employers to Take Action
Legal Momentum’s work reveals that not only is sexual harassment itself widespread, employer inaction, reticence, and misguidance is sadly commonplace. We need to shine more light on this problem. Working with victims of sexual harassment, we have seen that even large employers often lack sound protocols for investigating sexual harassment claims. This is true even when they seem to have anti-harassment policies in place. Employers are frequently unfamiliar with legal requirements or even purposefully misinform employees about the type of conduct that constitutes sexual harassment or about whether they are entitled to legal protection based on their immigration status.
While many organizations and agencies have recently reported a surge in sexual harassment complaints, this coincides with a decline in sexual abuse complaints in areas with large immigrant populations. In light of New York City’s “sanctuary” status, we have an obligation to ensure that all workers in this city can access much-needed benefits, report crimes, and seek accountability for sexual harassment without fear of retaliation. We also have an obligation to ensure that all individuals—regardless of their gender, class, race, ethnicity, religion, sexual orientation, or immigration status—can participate and benefit from the growing #MeToo movement.
To safeguard the most vulnerable workers, New York City needs, first, to hold employers to higher standards for investigating and responding to sexual harassment. Second, the city should guarantee that low-wage workers (particularly undocumented workers) have access to information, support services, and privacy protections when they report sexual harassment in the workplace.
Legal Momentum’s Recommendations
We respectfully urge the New York City Commission on Human Rights to consider the following recommendations for steps the City should take to better address sexual harassment:
Educate Employees: Immigrants are frequently misled or uninformed, and unaware that anti-harassment and anti-retaliation protections under Title VII of the Civil Rights Act and the NYC Human Rights Law apply regardless of immigration status. The City should execute a broad outreach and education initiative about available protections for low-wage immigrant workers in New York City.
Penalize Retaliation: The City should implement robust measures and penalties to prevent retaliation. Employers should never be able to use their employees’ immigration status as a bargaining chip.
Improve Reporting Mechanisms: The City should develop dedicated and confidential channels for low-wage immigrant workers to report sexual harassment in the workplace or seek legal guidance, taking into account the specialized risks and barriers these workers encounter.
Improve Reporting Deadlines: Low-wage immigrant workers are more likely to miss essential reporting deadlines because of language barriers, a lack of familiarity with legal requirements and reporting procedures, and fear of retaliation. The City should provide more time to file complaints for sexual harassment.
Monitor Industries: The City should improve monitoring of low-wage industries and sectors where exploitation is more likely.
Improve Employer Practices: In Legal Momentum’s work we regularly see employers perpetuate a culture of sexual harassment in the workplace by turning a blind eye and failing to take corrective action. We need a citywide assessment of employer practices that can identify gaps in procedures and protocols and find realistic ways to fill those gaps.
Train HR Employees: The City requires mandatory training and assessment for a wide range of skilled and technical trades. Identifying and responding to sexual harassment is a skill that requires specialized training. Human Resources (HR) staff are often the first point of contact when an employee makes a sexual harassment complaint, and yet we frequently see HR staff providing legally inaccurate and discouraging guidance to complainants. Requiring comprehensive, high-quality training will equip HR employees to consistently respond to sexual harassment complaints appropriately, in a way that safeguards both employees and employers.