The criminal justice system does not have a monopoly on mishandling reports of sexual harm. Workplaces and other institutions screw up all the time. If they did not, Dana and I wouldn’t have started Know Your IX to reform campus responses, and I would not now need to represent student survivors mistreated by their schools. Me Too would not have taken off in the wake of the Weinstein allegations if millions of workers in much less glamorous jobs did not see themselves in the actresses whose allegations had been brushed aside by studio executives.
The good news is that none of these failures are inevitable. Using law, media, and other public advocacy, survivors have successfully pushed their institutions to do better. But, to do so, we have to be honest about how and why these institutions often abdicate their legal and moral responsibilities.
When Breauna Morrow worked as a teenage cashier at a McDonald’s in St. Louis, an older male coworker propositioned her: “You have a nice body; have you ever had white chocolate inside you?” When she reported the comment to a manager, she says, she was told that she would “never win that battle.” Another McDonald’s worker was fired, she said, for reporting that her manager had asked “how many penises she could take,” and if she wanted to see his. “McDonald’s advertises all over television saying it’s ‘America’s best first job,’ but my experience has been a nightmare,” Morrow says.
Nightmares like those led McDonald’s workers in ten cities across the country to strike in September 2018. Harassment is rampant in the fast-food industry: a 2016 survey found that 40 percent of women who work in nonmanagerial roles in fast-food restaurants have experienced sexual harassment. McDonald’s is no exception, and its management refuses to address the problem, according to workers. As I’m writing, McDonald’s faces several Title VII lawsuits for mishandling claims and retaliating against victims who report. The company’s primary defense is that it is not responsible for what happens at its restaurants because, like many fast-food joints, they are franchises owned by middlemen. That is, McDonald’s headquarters does not directly control each location but rather contracts with others to run them. McDonald’s can tell a franchisee what kind of cheese it must put on a Big Mac, but it cannot—it says—make its franchisees take sexual harassment law seriously. If successful in the courts, that argument could devastate protections for fast-food workers.
The stories from McDonald’s make clear that, just like reporting to the criminal justice system, reporting to an institution comes with risks for survivors. These stakes are particularly high for undocumented workers, whose angry harassers may call immigration authorities. Like other forms of retaliation for speaking up about harassment, that practice is illegal. But, of course, enforcement of rights requires knowledge of the law and, sometimes, money for an attorney. Often the threat of reprisal is enough to keep an undocumented worker silent. For that reason, among others, sexual harassment is rampant in agricultural industries that rely significantly on undocumented laborers.
Retaliation also sometimes comes in the form of disciplinary action. Survivors who report to institutions too often end up facing sanctions for rule-breaking—much like they face arrest and prosecution when they report to the criminal justice system. In 2016, Brigham Young University came under fire for suspending students who disclosed their violations of the school’s honor code, like drinking or staying out after curfew, in order to report they had been raped. BYU has since instituted an amnesty clause for survivors to encourage them to come forward. But the problem is not confined to a single school. One of my young clients was suspended by her high school after reporting that she had been orally raped by a classmate. The assailant insisted that the two had had consensual oral sex. After asking why she hadn’t bitten her classmate’s penis to show she really didn’t want to participate, the school concluded my client was lying. And because, according to the school’s account, the girl had broken its rules by participating in sexual contact on school grounds, she was punished.
Other problems with institutional responses lack an analogue in the criminal system and arise because of their differences. Theoretically, anyone can file a police report or lawsuit. But not everyone has access to institutional procedures. Workers in informal industries—for instance, independent domestic workers who labor in private homes without meaningful oversight—have no central HR office to email. Nor do sex workers, whose efforts to offer mutual aid are often surveilled and incriminating. And abusive, misogynistic organizations and communities where harassment flourishes are probably the least likely to set up remedies for survivors, whether they are legally required to do so or not. Truly internal recourse is also often unavailable in institutions like prisons, immigration detention, and the military, where the line between reporting to the institution and filing a criminal complaint is, at best, porous. For example, prison officials are often required to turn over “internal” allegations to law enforcement. As a result, in those contexts it’s difficult, perhaps impossible, to construct a formal, separate process by which victims can pursue support or accountability outside the reach of the criminal system.
There’s also the problem that institutions often lack the power to force change that courts, for better or for worse, easily wield. Case studies from CARA, the organization whose work with Unido survivors I found so inspiring, also include a demoralizing account of trying to stop another activist from harassing young women in his community. This activist and his organization repeatedly refused to consider survivors’ reports, mete out consequences, or work to prevent future violence. They even accused the women of undermining the cause by speaking up. And because neither CARA nor the young victims could compel the harassing activist to show up and engage with their allegations, as a court could, he simply did not.
THE OPACITY OF institutional responses also can contrast sharply with the openness of court proceedings. Privacy might be attractive to survivors who don’t want their identity, or that of their assailants, publicly exposed. Indeed, the promise of confidentiality might be the only reason a victim is willing to come forward at all. But closed doors bring their own problems. Without public scrutiny, institutions can stick to bad habits without consequence.
Perhaps no company has proved this better than Uber. In 2017, Susan Fowler published a lengthy account of the harassment she had faced as an engineer at the company, and its HR department’s utter failure to address her reports. On her first day on the job, her direct supervisor propositioned her via the company’s chat system. “He was trying to stay out of trouble at work, he said, but he couldn’t help getting in trouble, because he was looking for women to have sex with.” She took screenshots of the message to show HR. “Uber was a pretty good-sized company at that time,” Fowler writes, “and I had pretty standard expectations of how they would handle situations like this. I expected that I would report him to HR, they would handle the situation appropriately, and then life would go on—unfortunately, things played out quite a bit differently.”
Differently, indeed. HR agreed with Fowler that her supervisor was sexually harassing her. But they told her this was her manager’s first offense, and when Fowler then brought the complaint to upper management, she was told her supervisor was “a high performer.” Executives explained that “they wouldn’t feel comfortable punishing him for what was probably just an innocent mistake on his part.” Fowler was then given a choice: she could switch to a different team or continue working with this manager—but if he gave her a bad review in retaliation for reporting him, HR warned, they could do nothing to protect her because she had “chosen” to stay. “I remarked that this didn’t seem like much of a choice,” Fowler wrote. Although she had been excited about her first team’s work, which aligned with her significant experience, she transferred.
Over time, Fowler met more women at Uber, and heard from them more stories like her own. “Some of the women even had stories about reporting the exact same manager I had reported, and had reported inappropriate interactions with him long before I had even joined the company,” Fowler wrote in her blog post. “It became obvious that both HR and management had been lying about this being ‘his first offense,’ and it certainly wasn’t his last. Within a few months, he was reported once again for inappropriate behavior, and those who reported him were told it was still his ‘first offense.’” Eventually, Fowler left Uber.
The year after Fowler published her account, another engineer, Ingrid Avendaño, sued Uber, alleging a similar pattern. Avendaño faced rampant harassment at Uber, she said. A senior colleague touched her inner thigh. A coworker talked about her ass. An engineer repeatedly told recruits that Uber was the “type of company where women can sleep their way to the top.” Avendaño reported the harassment to HR multiple times, she alleged in her lawsuit, but it failed to investigate her complaints. And when she complained about HR’s inaction to a senior executive, she was denied pay increases and promotions, leading to what HR called an “abnormally low” salary. Like Fowler, Avendaño left the company.
Ultimately, it took sustained public outcry in response to Fowler’s and Avendaño’s accounts, among others, to spur Uber to overhaul its broken human resources process. If the two women had not been willing to come forward, the rest of us would have known nothing about the company’s dysfunction. And before they heard stories from similarly mistreated colleagues, even Fowler and Avendaño hadn’t known how deep the rot went. Only Uber’s management could see the extent of the problem, and without public consequences, they were happy to continue to prioritize the male “high performers” and see junior women engineers leave.
By contrast, had a court regularly botched cases in this way, its failures would be public record. Interested members of the public could watch the trials sitting just a few feet away from the witness stand, listen to jurors read their verdicts, and read the judges’ opinions online. The openness of American courts has long provided fodder for legal reforms. Transparency allowed twentieth-century feminists to see how courts failed to appreciate the gravity of domestic violence, and permits today’s advocates to track disproportionate and discriminatory sentencing patterns.
The story of Uber is one of corporate failure and abuse. But it’s also a story of effective advocacy by survivors who forced the organization to pursue structural reform. In the wake of Fowler’s blog post, a company-wide investigation by an external auditor led to the termination of at least twenty employees, including some senior officials. A team of lawyers, hired by Uber and led by former attorney general Eric Holder, released a set of public recommendations for improving the company’s responses to sexual harassment. Shortly after, Uber’s founder, Travis Kalanick, resigned. In 2019, Uber agreed to pay $4.4 million to settle charges of sexual harassment and retaliation brought by the federal Equal Employment Opportunity Commission. The costs to Fowler, Avendaño, and other victims who demanded that Uber do better were, undoubtedly, tremendous. But when advocates are willing to press forward anyway, they show that tolerance for sexual harassment isn’t inevitable.
ONE OF THE more technical reforms that Uber implemented to improve its response to sexual harassment was to limit the use of a corporate practice common among tech giants: forced arbitration agreements, whereby workers are required, as part of their employment contracts, to sign away their right to sue their employer. These companies require that any legal grievances be handled by private arbiters—who are often chosen and paid by the company, and hired back if they perform “well.” Their decisions are binding on the parties and, with only the rarest of exceptions, unreviewable by courts. That means if a survivor is mistreated by HR when she reports harassment, she cannot sue. Instead, she must take her claim before the arbitrator, essentially a private judge supplied and paid for by the corporation. What’s more, arbitration often ends with a nondisclosure agreement, which prohibits the victim from talking about the underlying harassment or their company’s process for addressing it.
To be sure, some employees might prefer arbitration to a drawn-out court battle, much for the same reasons that some would choose to report harassment to HR rather than report it to the police. But there is a vast difference between choosing a private, speedier option and being forced into it, with no option for oversight if the process is unjust. And there’s considerable reason to think the arbitration system is rigged against workers. Employees required to submit to arbitration win their cases only 59 percent as often as those who sue in federal court, and just 38 percent as often as their counterparts who are free to sue in state court. That means, of course, that employers are less likely to face consequences through arbitration than they would through lawsuits.
Mandatory arbitration thus not only serves as an obstacle for individual workers who might do better in a lawsuit but takes the pressure off employers to follow the law in the first place. By insulating themselves from litigation, these companies can rest assured that their inadequate responses to sexual harassment are unlikely to hurt them later in the courtroom. So if they want to leave a harassing supervisor to his ways, why not?
One possible answer is the PR disaster that it invites. After Uber narrowed its use of forced arbitration agreements, a public outcry against Google’s reliance on them, led by its employees, forced that company to do the same. Workers are not completely powerless in the face of corporate malfeasance—especially when, like tech employees, they have the cultural capital to force the public to listen. Still, forced arbitration undoubtedly silences many and gives corporations too much room to abandon their legal and ethical responsibilities.
Institutions may be particularly likely to protect abusers when senior leaders have personal relationships with the people accused of doing harm, like an HR manager who has long shared an after-work drink with other executives. (To be fair, the same dynamic of self-protection can play out in court systems, too. Police are notorious for looking the other way when they receive domestic violence calls about fellow cops.) And even a strong written policy is no guarantee that an institution will enforce it. Some members of the Democratic Socialists of America, for instance, have criticized the organization’s implementation of the anti-harassment policy that it established in 2017. “Variations on this pattern have publicly played out twice in the last year,” Allison Hrabar, one of the authors of the DSA policy, wrote in an April 2019 blog post. “A person in DSA (usually a man) abused another member (usually a woman). The member reported the abuse to someone in chapter leadership, or national leadership, or someone responsible for handling grievances. The grievance went nowhere, or resulted in a warning or short suspension. The abuser is still in DSA. The reporting member is not.”
As Hrabar sees it, DSA’s leadership was simply unwilling to put its policy into practice. “I am proud of what we tried to do,” she wrote of the work she and her comrades did to write the policy. But despite their efforts, she says, “those of us that want to end abuse are forced to fight on two fronts: against both abusers themselves and leadership that is, at best, apathetic.”
THESE HORROR STORIES might scare a reasonable person away from institutional responses altogether. But I think that’s the wrong response. The corporate abuses at Uber and McDonald’s are not the inevitable failures of institutions trying their best to address sexual harassment. After all, there are plenty of success stories out there. Rather, these accounts of retaliation and silencing are examples of institutions actively protecting wrongdoers from accountability. We should not say they “failed” to protect employees because they never tried.
The lesson from these cover-ups, then, is that institutional responses will not work if the people calling the shots don’t want them to. So it’s the advocates’ job to make it so that people in power need these remedies to function. We must change the incentives so that ignoring abuses is more costly to institutions than facing them head on. By naming and shaming their companies, tech workers demonstrated that the public costs of forced arbitration agreements aren’t worth the legal advantages. When I was at Know Your IX, we fought hard for the U.S. Department of Education to release the findings of its Title IX investigations publicly, so schools would know that mistreating students might damage their reputations. Looking back, I feel confident that transparency played a significant role in forcing a sea change in schools’ responses to sexual harassment.
Some groups use both carrots and sticks. To address sexual harassment and other abuses of agricultural workers, the Coalition of Immokalee Workers (CIW) created a “Fair Food Code of Conduct.” Tomato growers who opt in to those rules and pass an audit benefit from good PR, and can label their products as “fair.” At the same time, farms that mistreat their workers face heavy financial consequences: thanks to CIW’s advocacy campaigns, major stores like Walmart and Whole Foods will only buy tomatoes from compliant farms. One external evaluation found that “because of this market enforcement mechanism, the Fair Food Program has been able to virtually eliminate horrendous human rights abuses like slavery and sexual harassment from the fields in which they work.”
When we successfully flip the calculus and force improvements, we should remain vigilant. An institution may appear to welcome reform efforts after a lawsuit or walkout forces them to do so. But that doesn’t mean the changes will stick, or that they’ll be implemented well. This is especially true for powerful, moneyed institutions whose interests are sure to diverge from those of their members. These institutions deserve neither our protection nor the benefit of the doubt. We certainly shouldn’t confuse HR departments with the feminist movement. And university Title IX offices are not “on our side,” either practically or politically.
Rather, they are useful. Although institutional failures make the news more often than successes, schools and workplaces have done far more for the survivors I know and represent than the police ever have. I’ve worked with hundreds of victims over the years, as either a colleague or an attorney. Many are prison abolitionists who see no role for law enforcement in addressing sexual harms, in large part because of their own traumatic, futile experiences with the criminal system. But I cannot think of a single survivor I’ve worked with who has called to end schools’ or workplaces’ role in addressing sexual harassment, even when those institutions let them down.
On the contrary, survivor-advocates have organized to expand the responsibilities of schools and workplaces to address sexual harms, even as right-wing actors have tried to limit those. (One such GOP campaign is the topic of a later chapter.) Victims recognize that to give up on these responses would simply excuse institutions’ failures, condemning everyone to the same fate as those abandoned in the wake of violence. Should we design a world in which everyone is treated like Susan Fowler, like my client Darbi, or like the McDonald’s workers who brought suits, all turned away when they sought help? Or should we, instead, fight for institutions to live up to their legal and moral responsibilities?
I choose the latter. Instead of abolishing a useful tool for its imperfections, we should take on the hard work of sustained agitation. We should push for continued progress, both in policy and in culture. And institutional responses may, in many cases, be easier to reform and improve than our criminal justice system. Your boss might be more likely to meet with concerned coworkers than your senator is. Company policies can be changed by its management team; passing a law is much more onerous. Of course, not every institution will be responsive. But where they are, change may come more quickly.
A COMMON CRITIQUE from the left—the kind of critique, I hate to admit, that wounds me most—is that those of us who devote considerable energies to internal remedies are insufficiently suspicious of the inherent dangers of institutions, especially powerful ones like corporations and universities. The critique goes something like this: Why would we think a comically evil company like Uber—which underpays its drivers and resists basic workers’ rights at every turn—could ever do good? Why would we want to have anything to do with it? At best, we are chumps. At worst, we are co-opted by institutions, manipulated to join their terrible systems in the name of reform, and in the process lend legitimacy to their abuses.
There’s certainly a risk of that. I’ve seen organizers who fought hard to improve a school’s sexual harassment policies come to feel defensive whenever the institution’s process then came under criticism—as though after whatever modest concessions the movement had won, any of the school’s failures were now their own. To admit that a school implemented reforms poorly would be, some feared, to admit that reform itself was wrong—which is certainly false, but can feel true. To be honest, I sometimes felt that way about Obama’s Education Department: once Know Your IX had helped convince the agency to enforce Title IX more robustly, criticisms of its efforts felt personal, even where I might otherwise have been critical myself. Resisting those impulses requires work. Sara Ahmed, a British theorist who has done tremendous work on sexual harassment in academia, writes, “I think that if we as feminists are going to be involved in transforming institutions, whether we are working at them or not, ‘institutional loyalty’ is pretty much the first thing you need to give up (if you have it) or avoid (if you do not).” To give up, to avoid—these are active verbs. Maintaining a healthy distance from an institution you’re trying to improve takes conscious effort.
Beware, Ahmed tells us. But she engages nonetheless. I strongly believe that we cannot forgo, out of fear or ideological purity, what for many survivors will be their only chance at support and something like justice. As a friend pointed out to me, a strict commitment to anti-institutionalism can serve to justify inaction in the face of others’ suffering, as though radical politics require that victims “suck it up” rather than call on available support. That can hardly be the answer.
I often think of a conversation I had a few years ago at a conference at a liberal arts college. I thought I was there to talk to undergraduates about how to exercise their Title IX rights. But the moderator, a postdoc in political theory, posed a different question: Did I like Title IX? She listed many ways school bureaucracies can fail survivors, and especially how they can fail to recognize nuances of victims’ experiences. She spoke movingly of the ways survivors must repackage a traumatic sexual encounter to be legible to a board of fact finders. All of that was true. And yet, if the question is whether I like that we have a law against sex discrimination that requires schools to handle sexual harassment, the answer is unequivocally yes. Students would not benefit if schools could again discriminate. Survivors would not be better off without the option of turning to their schools for help.
It’s telling that activists upset with harassment policies organize to improve rather than abandon them. DSA members like Hrabar have called on the organization to amend and improve its anti-harassment efforts, not to abandon the project. Harassment isn’t “going to go away overnight,” Hrabar told me. “We have a duty to address it. [Anti-harassment] policies shouldn’t be seen as ‘Well, this is our one try. We fix it or we don’t.’ They should be seen as ‘We are going to keep trying to make it better and better.’”
The McDonald’s workers filing suit in courts across the country are demanding better reporting options, not fewer. So are CIW and other workers’ coalitions that have advocated against sexual harassment. Janitorial workers, organized as the Ya Basta! coalition, successfully pushed their union to negotiate with employers to ensure companies improved their internal investigations. Such protections from sexual abuse on the job require workplace action, not simple outsourcing to cops and courts. One of the most heartening conversations I had in my research for this book was with Robyn Swirling, the founder of Works in Progress, an organization that helps progressive groups create better harassment policies. Swirling told me about her own disappointing experience reporting abuse to an employer. In the aftermath, she decided not to give up on workplace responses to sexual harassment, but rather to devote her professional life to making them better.
Survivors tell us what they want. We should listen.