Tag Archives: sexual harassment

Amid Sexual Harassment Allegations, Unions Maintain Collective Bargaining Protections for All Workers

Staff Additions

by Rochelle Skolnick, AFM Special Counsel and Symphonic Services Division Director

A union files a grievance challenging the termination of an orchestra musician alleged to have inappropriately touched a coworker, demanding reinstatement of the alleged harasser. A musician is suspended from work (although the employer signals it intends to terminate) for unspecified misconduct “pending investigation by the union.” A symphonic employer comments in the press that its sexual harassment policy was not implemented “because the union objected.” At a moment when our awareness of sexual harassment and misconduct in the workplace is greater and our tolerance for those behaviors is lower than ever, why does it sometimes seem the union is standing in the way?

The answer lies in three principles that are fundamental to the collective bargaining relationship among employers, unions, and the employees they represent: the duty to bargain, the duty of fair representation, and the requirement of just cause for discipline. It is easy to understand why a union might advocate on behalf of a musician who has suffered harassment in the workplace. Some of the other roles a union takes on in relation to this issue are more nuanced and less understood.

Sexual Harassment Legal Landscape

Federal law prohibits discrimination and harassment in the workplace based on sex and other protected characteristics (like race, age, disability, religion, national origin, and union activity). Federal law prohibits neither bullying nor harassment unrelated to a protected characteristic, but some state laws and municipal codes provide additional protections. It may seem obvious, but not all objectionable workplace conduct rises to the level of unlawful harassment. Even when the objectionable conduct is based on a protected characteristic, it will only be unlawful when it is so severe or pervasive that it unreasonably interferes with work performance, creating a hostile work environment.

It is the employer’s responsibility to ensure the workplace is free of unlawful harassment. When an employer receives a complaint concerning harassment, it must conduct an investigation and, if it determines harassment has occurred, it must take steps to end the harassment and make the victim(s) whole for any damages suffered. An employer may escape liability for unlawful harassment if it can demonstrate that it took reasonable steps to prevent the harassment (including the existence of a policy prohibiting harassment) and the victim unreasonably failed to avail himself or herself of the employer’s preventive mechanisms, including avenues for reporting the harassment.

Duty to Bargain Harassment Policies

In the unionized workplace, an employer wishing to implement a sexual harassment policy may not do so without first engaging the union in bargaining concerning the policy. Sexual harassment policies, and the discipline that may result from violating them, are both mandatory subjects of bargaining. Federal law prohibits an employer from making unilateral changes in any mandatory subject until it has given notice and bargained with the union and the parties have reached either agreement or impasse.

Although employers today seem to be more aware of their obligation to bargain harassment policies, some still attempt to unilaterally implement them. When a union objects and demands to bargain over the contents of the policy, it does so not to be obstructionist but rather to ensure that the policy is reasonable, understandable, and not in conflict with the parties’ CBA, among other things. A union’s actions in this regard are part of maintaining a healthy relationship between the union and employer, which in turn benefits all employees.

Union’s Duty of Fair Representation

A union that is the exclusive bargaining representative of a unit of employees (e.g., the musicians of a symphony orchestra) has a duty to represent the members of that unit in a way that is reasonable, fair, and in good faith. This is known as the “duty of fair representation.” That duty applies with equal force, whether the union is acting on behalf of the bargaining unit as a whole or on behalf of one individual musician. In fact, unions often must balance the interests of an individual employee with those of the entire group and are given wide latitude to make judgments about the best course of action, so long as those judgments are not arbitrary, discriminatory, or in bad faith.

When a musician has been disciplined for alleged sexual harassment or any other infraction and asks the union for assistance, the union must at least investigate the matter to determine whether the discipline violated the parties’ CBA. The nature of the investigation will depend on a number of factors, but such investigations are almost never straightforward and often will require the union to invest substantial time and resources. Meanwhile, there may be some in the bargaining unit—including the musician who complained of the harassment—who are convinced of the alleged harasser’s guilt and question why the union would not immediately acquiesce to the discipline. These musicians should remember that the union’s conducting of an investigation fulfills an important duty—one it would discharge similarly for any member of the bargaining unit seeking the union’s assistance.

Discipline for Just Cause: Due Process and Progressive Discipline

When a union investigates the discipline of any musician, it is generally trying to determine whether the discipline was for “just cause.” Just cause is the standard commonly applied by labor arbitrators to determine the propriety of a disciplinary action in the collective bargaining context. The right to discipline only for just cause is one of the greatest benefits of working under a collective bargaining agreement. Most American workers can be terminated at any time, for any reason (known as “at will” employment). Traditionally, the test for just cause consists of seven questions, all of which must be answered affirmatively or the discipline fails the test. Among the considerations are whether both the rule and consequences for violating it were communicated clearly to the employee, whether the employer conducted a fair and objective investigation before imposing discipline, whether the degree of discipline was reasonable in light of the employee’s proven offense, the employee’s record of service, and the employer’s handling of similar conduct by other employees.

At the heart of the “just cause” inquiry are concepts of due process and progressive discipline. Due process, in this context, means that the musician has been made aware of the employer’s expectations for conduct and given an opportunity to satisfy them. Progressive discipline means that, when the musician fails to satisfy those expectations, the employer imposes only the degree of discipline necessary to correct the behavior, applying successively harsher penalties, if less severe penalties fail to have the desired result.

Generally speaking, discipline “progresses” from verbal warnings to written warnings to suspensions of increasing length to termination. Particularly egregious misconduct may warrant skipping over steps of progressive discipline and going straight to termination, but that is the exception rather than the norm.

In many cases, an employer’s obligation to ensure a workplace free of unlawful harassment may not require the immediate termination of an employee alleged to have engaged in such harassing conduct. Some lesser degree of discipline may be enough to convey the message that such conduct will not be tolerated. Where the alleged harasser is a long-term employee with an otherwise clean disciplinary record, skipping over lesser discipline and moving straight to termination may be inconsistent with just cause. The same may be true where an employer has rushed to discipline before investigating or imposed discipline on the basis of facts that do not rise to the level of actionable misconduct. In any of these cases, the union may have a duty to represent the disciplined musician in the grievance process, and even in arbitration.

Sometimes, the union takes a position of advocacy on behalf of a musician who has already been judged by colleagues and may not be well liked. Occasionally, the union’s position on behalf of one musician seems to be in conflict with the interests of another musician. Unions have systems to manage such apparent conflicts, including the assignment of different individual representatives to different musicians, but these are among the most difficult cases for unions. It is important to remember that, in such situations, the union is preserving foundational rights to due process and progressive discipline—not just for one individual musician, but for every musician in the bargaining unit.

International Union Delivers Anti-Harassment Accord to Marriott

During the United Nations International Labor Organization Conference in Geneva last moth, hotel workers from across the globe met to discuss sexual harassment in the workplace and to hand an accord to Marriott bosses. The workers marched from the Ritz-Carlton Hotel de la Paix to the Hotel President Wilson in Geneva where they handed “Global Demands on Marriott Regarding Sexual Harassment” to two separate Marriott bosses. The action was coordinated by the International Union of Food, Agricultural, Hotel, Restaurant, Catering, Tobacco, and Allied Workers’ Association (IUF).

The accord read: “Today the world is focused on ending sexual harassment and gender-based violence at work. As affiliates of the IUF, the global union representing more than 10 million workers in sectors including hotels, restaurants, and catering services, we call on Marriott to partner with us toward meeting this goal.”

Hotel workers are vulnerable to harassment from co-workers, management, and guests and employers often see them as expendable. When they report, little or no action is taken, and if it’s a guest, the worker may even be sent back to clean the same room the next day.

Marriott was not targeted because it is the worse offender, but because it is the largest and most profitable hotel chain in the world. “We believe that when Marriott raises standards for workers, it’ll have a ripple impact across the entire industry,” explains UNITE HERE National Press Secretary Rachel Gumpert.

Though the meeting with the Marriott bosses was positive, the union hasn’t so far seen any formal action from Marriott. “This kind of systematic disregard for their basic safety at work is something that women are just not willing to accept any longer,” adds Gumpert.

sexual harassment

AFM Updates Sexual Harassment Policy

Sexual harassment is a form of illegal discrimination that violates Title VII of the Civil Rights Act of 1964. At the March AFM International Executive Board meeting, the board adopted an updated sexual harassment policy that is unambiguous and instructive. The policy applies to all AFM employees whether they work in our New York City, Los Angeles, Toronto, or Washington, DC, offices, as well as those AFM employees who work “on the road” (international representatives and negotiators/organizers).

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#MeToo: What to Do When You Are Harassed


The viral spread of the #MeToo campaign denouncing sexual assault and harassment demonstrates that almost no one is immune to sexual harassment and no one reporting it should feel alone. The campaign has also exposed the unfortunate truth that instances of sexual harassment appear to be pervasive throughout American culture, including in the arts and entertainment community.

No one should ever have to feel uncomfortable, unsafe, or threatened on the job. Yet, at one time or another, nearly everyone has endured workplace sexual banter that made them uncomfortable. People often laugh it off, masking their discomfort, but no one should have to feel that way at work. Sadly, employees frequently choose not to complain for a variety of reasons. They may want to be “part of the team,” wish to avoid further embarrassment, or fear retaliation. They may simply prefer to think of themselves as survivors, not victims.

What Is Sexual Harassment?

Sexual harassment involves unwelcome sexual advances, requests, and other verbal, visual, or physical conduct. This can include inappropriate jokes, obscene language (including in emails), touching or impeding movement, sexual gestures, and suggestive objects and pictures. Harassment does not have to be of a sexual nature. It can include offensive or derogatory remarks about a person’s gender, such as general offensive comments about women or men. The victim does not have to be the person directly harassed, but is anyone affected by the harasser’s offensive conduct.

Workplace sexual harassment can take two forms. “Quid pro quo” harassment occurs when a tangible employment action explicitly or impliedly depends on the employee’s rejection or acceptance of unwelcome sexual advances or requests. It is generally committed by someone with power to make termination, demotion, or promotion decisions over the victim.

The second type of harassment occurs when the unwelcome conduct of supervisors, co-workers, customers, contractors, or anyone else with whom the victim interacts on the job creates an intimidating, hostile or offensive work environment. In order to be legally actionable, such “hostile work environment” harassment must be so severe or pervasive as to interfere with a reasonable person’s ability to perform his or her job.

Sexual harassment crosses all genders, ages, sexual orientations, and job levels. According to Equal Employment Opportunity Commission (EEOC) research, one in four women have been sexually harassed. While 30% took action to stop it, less than half filed a complaint. Seventy percent simply avoided their harasser, denied, or downplayed the harassment.

Title VII of the Civil Rights Act of 1964 bans discrimination on the basis of sex, which the EEOC and the United States Supreme Court have interpreted to include sexual harassment. Following guidance issued by the EEOC, many employers have written policies banning sexual harassment, instituted mandatory sexual harassment training, and created procedures for employees to
file complaints.

While almost all large companies today have anti-harassment policies and complaint procedures in place, there is little evidence that compulsory training reduces the instances of sexual harassment. It may do more harm than good—sometimes shielding employers from liability and reinforcing gender stereotypes. Even with training, human resource personnel sometimes handle incidents poorly. They may suggest ignoring the harassment, especially if it doesn’t meet their standards for sexual harassment.

What Should You Do?

It is an employer’s legal responsibility to provide a workplace free of unlawful harassment. Employers must investigate complaints of sexual harassment and must take appropriate actions to end harassment and ensure it does not happen again. Employees should be encouraged to come forward at the earliest instance and not wait until a point where they feel unsafe.

If you are being sexually (or otherwise) harassed at work and feel comfortable confronting your harasser, immediately and emphatically tell the person to stop. If you work under a union collective bargaining agreement, alert your union representative to the harassment and ask for assistance. Create and keep a contemporaneous written record of the harassment, including details such as the time and date of each incident. Also keep a detailed record of your job performance.

Collective bargaining agreements and employee handbooks often include provisions governing the reporting and handling of complaints of sexual harassment. Where such policies and procedures exist, try to follow them as closely as possible, in reporting your concerns.

If your internal complaints fail to put a stop to the harassment (or otherwise resolve the situation to your satisfaction) or you feel reporting the harassment to your employer has led to unfair treatment or retaliation, you may choose to file a charge of discrimination with the EEOC or with your state human rights agency.

These charges must be filed within 180 days of the alleged discriminatory act (300 days if your state has an agency that enforces a state law that prohibits employment discrimination on the same basis). The EEOC and state agencies are equipped to assist you in filing a charge of discrimination. For more information or to file a complaint call the EEOC at 1-800-669-4000.

Sexual Harassment

FIA Issues Declaration on Sexual Harassment

SAG-AFTRA President Gabrielle Carteris and FIA President Ferne Downey display the FIA Declaration on Sexual Harassment, Discrimination, and Retaliation in the Entertainment and Media Industries.

In October the International Federation of Actors (FIA) Executive Committee approved a declaration on sexual harassment, discrimination, and retaliation in the entertainment and media industries. The declaration, authored and sponsored by the SAG-AFTRA recognizes the rights of all performers to a safe and harassment-free working environment and urges the industry to work in good faith with unions and performer organizations to develop a long-term strategy to achieve discrimination and harassment-free workplaces.

“The scandal involving Harvey Weinstein revealed problems that were all to familiar to women—and men—in our industry. We know that sexism in our industry is real. We know that there are sexual harassers who use their power to intimidate. And we know that this needs to change. And as union leaders we are taking a stand—we seek nothing less than a major cultural shift,” says FIA President Ferne Downey.

The declaration was issued during the FIA Executive Committee Meeting in Zagreb, Croatia, on behalf of the FIA’s 87 affiliated unions and performer organizations, representing hundreds of thousands of performing artists in more than 60 countries.

CIW Women’s Group Sends Letter to Wendy’s CEO

At a time when national attention is directed toward the sexual harassment and assault of women in Hollywood, the Coalition of Immokalee Workers (CIW) Women’s Group says gender-based violence in the fields remains largely overlooked. In early October, CIW sent a letter to Wendy’s CEO Todd Penegor, along with the company’s board chair and a major shareholder, calling attention to the sexual violence occurring in Wendy’s supply chain and requesting a meeting to discuss the issue. The letter called for Wendy’s participation in the Fair Food Program and questioned why Wendy’s had shifted from purchases in Florida, where Fair Food Program protections have largely eliminated sexual harassment and assault, to purchases in Mexico, where the abuses are rampant.

According to US statistics from the American Association of University Women, Langer Research Associates, and the Southern Poverty Law Center, 25% of all women as a whole, 65% of women on college campuses, and 80% of women in agricultural fields, have reported sexual harassment or assault in the workplace. CIW is a worker-based human rights organization which began with farmworkers in 1993.

Women Farmworkers Win Massive Judgement

In early September the US Equal Employment Opportunity Commission (EEOC) announced a unanimous verdict of more than $17 million for victims of sexual harassment and retaliation at Moreno Farms, a small, now defunct farm outside of Immokalee, Florida. According to the EEOC suit two sons of the owner and a third male supervisor engaged in sexual harassment, including groping, propositioning, and threatening women. The five women awarded the judgement were fired for opposing the sexual harassment.

“EEOC has been at the forefront of combating employment discrimination on behalf of farmworkers,” said EEOC General Counsel David Lopez, in a press release. “We are committed to ensuring that all immigrant and vulnerable populations are protected by the anti-discrimination laws, and this is the latest in a number of successful cases that we have litigated to stop these discriminatory practices.”