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Scalia’s challenge: Fiery old writings in a new era of #MeToo

Posted on July 25, 2019 by Ian Kullgren

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Two decades before being nominated as President Donald Trump’s Labor secretary, Eugene Scalia was at war with the lion of the Senate.

In 2001, Sen. Ted Kennedy, the Democratic chairman of the Health, Education, Labor and Pensions Committee, expressed skepticism of then-President George W. Bush’s decision to nominate Scalia as the Labor Department’s top legal official. In his opening statement at Scalia’s confirmation hearing, Kennedy criticized a 1998 essay in which Scalia said that a form of workplace sexual harassment known as quid pro quo “should be eliminated as a functional category of discrimination” under the law.

But Scalia had a formidable ally: Ruth Bader Ginsburg, the Supreme Court justice and close friend of fellow Justice Antonin Scalia, Eugene Scalia’s father. In a letter to the committee, Ginsburg said the younger Scalia’s essay was “written with refreshing clarity and style. It is informative, thought-provoking, and altogether a treat to read.”

“She thought very highly of him. Ruth appreciates good lawyering,” Bill Kilberg, a partner at Gibson Dunn who considers both Scalia and Ginsburg close friends, said in a phone interview.

Scalia’s strongly worded essay is among key pieces of his record set to resurface as he faces confirmation in a #MeToo world. His views aired in that hearing 18 years ago were just a small piece of a career-long commitment to conservative legal theory and a penchant for rhetorical flair that echoes his father — but also present a potential liability in the Senate, which is more discerning toward sexual harassment issues than it was two decades ago.

“The Senate’s changed dramatically in the years since that confirmation hearing occurred,” said Jim Manley, Kennedy’s press secretary at the time and later a senior strategist for Senate Majority Leader Harry Reid. “What may not necessarily be a big deal then could be a big deal this time around. The people have changed and the issues have changed over the years, and he’s going to get some scrutiny on this.”

Scalia has represented a range of corporate clients in complaints related to workplace sexual harassment. As recently as 2015, he briefly worked for the global bank HSBC in a case involving current and former employees who accused a senior executive of repeated and unwanted sexual advances. Trump announced Scalia’s nomination last Thursday — a week after the ouster of Alex Acosta, who resigned amid scrutiny over his role in brokering a 2008 plea deal with wealthy sex offender Jeffrey Epstein, arrested in New Jersey earlier this month on new charges of sex trafficking.

Some liberal groups have already seized on Scalia’s prior writings, arguing they should disqualify him from serving in Trump’s cabinet. Allied Progress director Derek Martin said Scalia “may be a gifted legal mind, but his moral compass clearly needs some calibration.”

“The Senate should reject this nominee and demand a Labor secretary who will look out for all Americans in the workplace, not just the ones that sign the checks,” Martin said.

Scalia’s nomination was quickly celebrated by conservatives who see him as a warrior against regulations and a defender of business freedom.

“The confirmation process has gotten so silly that people will make something out of the most ridiculous things and attempt to block a nominee, but I will tell you that I know Gene Scalia would never tolerate sexual harassment in the workplace,” added Helgi Walker, a longtime colleague of Scalia’s at Gibson Dunn.

Scalia was narrowly approved by the Senate panel in 2001, despite the controversy stirred by his previous writings on sex discrimination. He was appointed to the position four months later during the Senate’s recess after Democrats, who controlled the upper chamber, refused to hold a confirmation vote.

The 7,000-word opinion piece, which Scalia published in the Harvard Journal of Law and Public Policy, a common resource for conservative legal scholarship, was cited by the Supreme Court in Burlington Industries v. Ellerth, a case that sought to clarify the legal exposure companies face amid instances of sexual harassment. The decision came a little over a year after the justices decided Clinton v. Jones, another landmark case involving former Arkansas state employee Paula Jones’ sexual harassment claim against then-President Bill Clinton.

In the essay, Scalia does not endorse leniency for harassers. But he does argue that quid pro quo harassment, the illegal practice of soliciting sexual favors in return for professional advancement, shouldn’t be distinguished from generalized harassment in the workplace.

“His point was only that employers should be liable and you don’t need a new doctrine to make it liable,” Kilberg said.

Scalia declined to comment on the record. White House spokesperson Judd Deere said his “past experience in the federal government … makes him the right choice to lead the [Labor] department.”

“Eugene Scalia is one of the most experienced and respected labor and employment lawyers in the country, which is why President Trump has expressed his intent to nominate him,” Deere added.

Still, many of the passages in Scalia’s essay — though part of a larger and more complex legal argument — are likely to draw criticism from opponents.

“Saying ‘You’re an incompetent stupid female bitch’ a single time is not actionable environmental harassment,” Scalia wrote in one of his most emphatic lines. “Why should suit lie for saying ‘I don’t have time for you right now, Kim, unless you tell me what you’re wearing,’ a statement that Judge Flaum found to be a quid pro quo proposition in his Jansen opinion?”

Kennedy and his Democratic colleagues accused Scalia of arguing that employers should not be liable when executives or supervisors promise perks and promotions in exchange for sexual favors, or when they threaten adverse employment actions if a subordinate declines to engage in sexual activity.

“[Scalia] has said that employers should not be strictly liable in sexual harassment cases unless they expressly endorse the conduct of the harasser,” Kennedy (D-Mass.) said in his opening statement, according to a transcript of the confirmation hearing. (Kennedy died in 2009.)

To combat the onslaught of criticism from their Democratic colleagues, the panel’s Republican members frequently referred back to Ginsburg’s letter.

“I do not think she would have written that if she thought you were off the world somewhere in your views on that,” then-Sen. Jeff Sessions (R-Ala.) said of Ginsburg, whom he referred to as “the most ardent defender of women’s rights on the U.S. Supreme Court.”

Scalia ultimately overcame the controversy in 2001 and was approved by the Senate panel 11-10, with Vermont independent Jim Jeffords casting the deciding vote.

When Scalia started his new job, he boasted the essay as one of his top legal writings on the Labor Department website.

Rebecca Rainey contributed to this report.

This article was originally published by Politico on July 12, 2019. Reprinted with permission.

About the Author: Ian Kullgren is a reporter on POLITICO’s employment and immigration team. Before joining POLITICO, he was a reporter for The Oregonian in Portland, Ore. and was part of a team that covered a 41-day standoff with armed militants at the Malheur National Wildlife Refuge. Their efforts earned the Associated Press Media Editors grand prize for news reporting in 2017. His real beat was politics, though, and he spent most his time at the state capitol covering the governor and state legislature.

About the Author: Gabby Orr is a White House reporter for POLITICO. She previously covered Donald Trump’s ascension to power for the Washington Examiner, from the day he announced his campaign to his transition to the White House. She spent one month in 2016 embedded in New Hampshire, where she covered several Republican candidates prior to the state’s first-in-the-nation primary. Orr has also worked for The New York Post and Fox News’ digital platform. Originally from Sonoma, Calif., she graduated from George Washington University in 2015 with a degree in political science.

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Senators are letting themselves off the hook with sexual harassment bill, women’s rights groups say

Posted on May 25, 2018May 30, 2018 by Laura Clawson

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Sexual harassment in Congress is a scandal—and it would probably be a lot more of one if Congress hadn’t written its own rules for dealing with allegations in secret. But since the #MeToo movement has shined a light on sexual harassment, the House of Representatives has managed to pass a decent bill. The Senate … hasn’t, and the bill it has coming up for a vote is not the answer. The American Civil Liberties Union, Equal Pay Today, the Leadership Conference on Civil and Human Rights, National Women’s Law Center, and Public Citizen are calling on the Senate to strengthen its bill.

Their letter points to serious weaknesses in the Senate bill, including that it doesn’t call for an independent investigator, instead putting approval of settlements in the hands of the ethics committees of both the House and the Senate to sign off on if the settlement is because of a member of Congress’s own actions:

“This provision appears to provide an opportunity for a Member who has settled a claim to avoid personal accountability and to be absolved from reimbursing the taxpayers,” the groups wrote in the letter.

Additionally, the Senate bill fails to hold members liable for discrimination settlements:

“A Member who has committed wrongdoing should be liable for all damages negotiated in a settlement or awarded by a court; they should not be shielded from the consequences of their actions,” they wrote.

Seriously. Time for Congress to be held accountable—and the way for that to happen is for Congress to write its own rules to demand accountability.

This blog was originally published at Daily Kos on May 25, 2018. Reprinted with permission.

About the Author: Laura Clawson is labor editor at Daily Kos.

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New study confirms widespread reports of science’s sexual harassment problem

Posted on July 11, 2017July 12, 2017 by Laurel Raymond

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In January 2016, Rep. Jackie Speier (D-CA) took to the House floor and delivered a blistering speech on a topic not often discussed outside the towers of academia: sexual harassment in the sciences.

“When I was made aware of it, I was astonished and disgusted,” Speier told Wired about the case she presented on the floor, based on a leaked report on harassment at the University of Arizona. But she wasn’t surprised: “It was consistent with what I have seen in science for a long time.”

As Speier notes, the idea that science has a sexual harassment problem is hardly new?—?particularly for female scientists, who’ve been dealing with and fighting against it for decades. But until recently, it didn’t get a lot of attention. Speier’s speech helped open up a dam, as female scientists came forward in droves to share their experiences with sexist discrimination and harassment.

And this week, new survey data confirms what the anecdotes told us: Women, and particularly women of color, working within the astronomical and planetary sciences are vastly more likely than their male colleagues to experience a hostile work environment based on their race or gender.

A series of scandals

Speier her speech began by referencing two high-profile cases that had shaken the world of astronomy and first brought the issue into the spotlight, the first of which centered on world-famous astronomer, tenured professor, and, as it turns out, serial sexual harasser Geoff Marcy.

Marcy had repeatedly violated the school’s sexual harassment policy and engaged in inappropriate behavior with female students, including unwanted massages, kisses, and groping, as a Title IX investigation leaked to Buzzfeed revealed. According to subsequent reports, his behavior dated back to previous academic posts and had gone on for decades with little consequence, despite numerous reports from women.

Despite the extensive documentation and report, Berkeley did not hand down punishment for Marcy. He resigned from his tenured position down after pressure from his colleagues.

Then, a similar story broke at Caltech, where newly-tenured astrophysics professor Christian Ott was suspended for inappropriate behavior toward two female graduate students?—?one of whom he fired after he fell in love with her, upending her research plans and ultimately causing her to leave the university to finish her studies elsewhere.

And on the floor, Speier outed yet another instance of harassment within astronomy: Timothy Frederick Slater, a professor at the University of Wyoming who obtained the post despite a documented history of sexual harassment at his previous job at the University of Arizona.

As the topic moved out of the shadows and into the mainstream, women from all across the sciences came forward with their own stories of gender-based discrimination and harassment.

Reformers, however, still faced a classic problem when it comes to sexual harassment: disbelief. Were these anecdotes just isolated incidents, or particularly high-profile examples of a widespread epidemic?

Now, new survey data published in the Journal of Geophysical Research is helping confirm that it’s the latter?—?and illustrate that when it comes to harassment and hostile workplace behavior, women of color, as a double minority, are the people at the greatest risk.

A culture of sexism

Researchers surveyed 474 astronomers and planetary scientists in an internet survey, asking about their experience with harassment over a period of five years. As they were particularly interested in the experience of women?—?who experience the majority of sexual harassment and gender discrimination in the workplace, and who also form a minority group within the scientific field at issue?—?they specifically targeted recruitment so they would be oversampling women relative to their numbers in the field.

They found that overall, women were more likely than men to experience a hostile work environment, and were far more likely to experience sexism and harassment.

“The results were initially worse than expected, as somebody who’s been working in and around these issues for some time,” study co-author Christina Richey told Inside Higher Ed. “It’s a little disheartening, but at least as we present this information it’s an opportunity for that gut-check moment. It forces conversations to start.”

Seventy-nine percent of women surveyed reported hearing at least some sexist remarks from their peers, and 44 percent reported hearing them from their supervisors. Women were also more likely than men to hear remarks about their physical ability or disability. Seventy-five percent of women reported hearing remarks from others about their mental abilities, as compared to 48 percent of men.

And in nearly every significant area, the researchers found that “women of color experienced the most hostile environment, from the negative remarks observed to their direct experiences of verbal and physical harassment.”

Forty percent of women of color reported feeling unsafe at work because of their gender, and 28 percent reported feeling unsafe because of their race. They also observed the highest frequency of problematic remarks, as compared to white men and men of color and white women, and were the most likely to report harassment based on their race.

White women and women of color experienced verbal harassment related to their gender about equally?—?with 43 percent and 44 percent reporting it, respectively.

Overall, the study paints a picture of endemic hostile experiences predicated by race, gender, and their intersections.

And this culture has an effect: Thirteen percent of women reported skipping at least one class, meeting, fieldwork, or professional event due to feeling unsafe, as compared to 3 percent of men. Twenty-one percent of women of color reported skipping professional events due to feeling unsafe, as did 18 percent of men of color. Only 2 percent of white men reported skipping at least one event due to feeling unsafe.

This result underlines a common theme with workplace sexual harassment: Often, when men in power harass their employees, it’s the women on the receiving end whose careers pay the price.

A discriminatory environment creates a leaky pipeline

This study specifically focused on astronomy and the planetary sciences?—?one area within the sciences where women are particularly scarce, and where some of the highest-profile scandals have occurred.

Reports indicate, however, that the problem stems across disciplines and even across academia. According to a 2015 report, one in three female science professors reported experiencing sexual harassment at some point in their career.

One likely reason sexual harassment in the sciences is prevalent is because of gender imbalances in the field: While women now outnumber men in social and some biosciences, they remain drastically underrepresented in engineering, physics, and computer science.

Academia is also a world where length of career matters. For decades, women weren’t even accepted to technical or scientific degrees. Now, that legacy still lingers in the ranks of those who lead University departments or who built powerful research legacies?—?and therefore are in charge of the course of young careers. That means that more often than not, even as more women are being encouraged to choose STEM careers, those in charge of mentorship, funding, and career opportunities are men.

All of this has a perpetuating effect: Women remain stubbornly underrepresented in the sciences, and part of that is because the pipeline is leaky.

In engineering, for example, women earn only 19 percent of bachelor’s degrees, and then on top of that 40 percent of female degree earners leave the field, citing hostile work cultures, limited advancement opportunities, and unsupportive supervisors.

That’s a problem not just for women, but also for science in general, because it means that fields are missing out on bright minds.

The authors of the study offer several suggestions for remedying the environment for women and women of color in science?—?including adopting codes of conduct protecting vulnerable populations, providing diversity and cultural awareness training, and helping women and women of color to build communities of peers.

They also recommend that when abuse is reported, that the perpetrators be sanctioned swiftly, justly, and consistently, “as this is the only way to signal consequences to the target and the broader community.”

This article was originally published at ThinkProgress on July 11, 2017. Reprinted with permission.

About the Author: Laurel Raymond is a reporter for ThinkProgress. Previously, she worked for Sen. Patrick Leahy (D-VT) and served as a Fulbright scholar at Gaziantep University in southeast Turkey. She holds a B.A. in English and a B.S. in brain and cognitive sciences from the University of Rochester, and is originally from Richmond, Vermont.

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Federal judge concludes transgender worker can sue for sex discrimination

Posted on December 21, 2016December 21, 2016 by Zack Ford

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A federal court in Kentucky is allowing a transgender workplace discrimination suit to proceed, recognizing that mistreatment in regards to gender identity constitutes illegal discrimination on the basis of sex.

Plaintiff Mykel Mickens sued General Electric Appliances (GE) for harassment and disparate treatment in the workplace. He was not permitted to use the men’s restroom, so he had to use a facility much farther away from his work station, and he was then disciplined for how long his breaks were to accommodate that journey. Mickens also had a conflict with an employee, but though GE addressed a complaint one of his white, female colleagues had with that employee, his complaint went unaddressed. He says that when he disclosed that he was transgender to his supervisor, he was singled out and reprimanded for conduct no one else was reprimanded for, and when he reported the harassment, GE said there was nothing it could do.

Federal Chief Judge Joseph McKinley, a Clinton appointee, concluded that there was significant evidence to bring a discrimination case for race and gender discrimination. He agreed there is precedent that punishing an employee for failing to conform to gender stereotypes can qualify as gender discrimination under Title VII. “Significantly,” he wrote, “Plaintiff alleges that GE both permitted continued discrimination and harassment against him and subsequently fired him because he did not conform to the gender stereotype of what someone who was born female [sic] should look and act like.”

McKinley noted that several court cases, including G.G. v. Glouchester County School Board?—?currently before the Supreme Court?—?could impact future trans discrimination suits. In the meantime, however, “what is clear is that the Plaintiff’s complaint sufficiently alleges facts to support discrimination or disparate treatment claims based upon race and gender non-conformity or sex stereotyping.”

GE did not comment directly on the suit but reaffirmed in a statement its commitment to “creating, managing and valuing diversity in our workforce” and “ensuring that our workplace is free from harassment.”

McKinley’s ruling isn’t an automatic victory for Mickens, but it is a sign of progress for those seeking the justice system’s protection for discrimination against transgender people.

Just last week, a transgender man in Louisiana won his discrimination complaint against his employer through arbitration. Tristan Broussard involuntarily resigned from the financial services company he worked for when he was intolerably forced to “act and dress only as a female.” He was awarded more than a year’s salary as well as additional damages for emotional distress.

The Obama administration has extended protections to transgender people in various ways, including advocating for their civil rights in employment discrimination cases. Many advocates worry the Trump administration will roll back these protections and abandon support for these plaintiffs, if not take an antagonistic position against their discrimination claims.

A recent massive survey of transgender people found that 16 percent had lost a job due to being transgender, and 27 percent had either been fired, denied a promotion, or not been hired due to being transgender.

This article was originally posted at Thinkprogress.org on December 13, 2016. Reprinted with permission.

Zack Ford is the LGBT Editor at ThinkProgress.org. Gay, Atheist, Pianist, Unapologetic “Social Justice Warrior.” Contact him at zford@thinkprogress.org. Follow him on Twitter at @ZackFord.

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Fox News Has a Sexual Harassment Problem and It’s Way Bigger Than Roger Ailes

Posted on September 6, 2016September 5, 2016 by Sady Doyle

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photo_159877 The Roger Ailes harassment scandal was never just about Roger Ailes. We knew that from the beginning: Gretchen Carlson, the woman whose sexual harassment lawsuit helped topple the Fox News chief (and unleashed a flood of similar harassment and assault allegations) stated that she’d only come into Ailes’ line of sight because she was pursuing remedy for a different instance of workplace discrimination.

The circumstances of Carlson’s suit are indicative of a wider problem. In her suit, Carlson alleges that her Fox & Friends co-host, Steve Doocy, made her life hell by “mocking her during commercial breaks, shunning her off air, refusing to engage with her on air, belittling her contributions to the show, and generally attempting to put her in her place by refusing to accept and treat her as an intelligent and insightful female journalist.” When she reported his behavior, Ailes allegedly called Carlson a “man hater” and told her to “get along with the boys,” eventually demanding sex in return for his intervention.

With all that in mind, can it really be surprising that yet another woman has now come forward to allege sexual harassment—or that the woman in question, Andrea Tantaros, describes Fox News itself as “a sex-fueled, Playboy Mansion-like cult, steeped in intimidation, indecency, and misogyny?”

The specific harassers named are new—Bill O’Reilly, correspondent John Roberts and former Sen. Scott Brown are all named—and so are some details. (Tantaros alleges that after she shot Ailes down the company’s media relations department began arranging bad press for her, even setting up fake social media accounts to attack her online presence with nasty comments.) But the overarching allegation that Ailes “(did) not act alone”—that other men at the network benefited from a system designed to enable sexual harassment and that the system found a way to cover for the accused men and make their female victims disappear—was familiar from Carlson’s suit. The players may change, but the song remains the same, and anyone who’s studied how sexual harassment works has no trouble recognizing this particular tune.

Harassment isn’t an individual problem; it’s a problem inflicted by communities, either because the members participate in the violence or because they’ve learned to stay quiet as a means of self-defense. (Johnny Silvercloud/ Flickr)

Fox News has declined to comment on Tantaros’ case, citing pending litigation. The network’s parent company, 21st Century Fox, released a statement saying it was conducting an internal review of conduct by Ailes and Doocy. Ailes has strenuously denied the accusations against him, as has Brown.

There’s been a lot of ink spilled on Ailes’ personal repugnance over the past few months, but sexual harassment almost never comes down to one corrupt executive. For that matter, the harm done to victims usually doesn’t start with the big, obvious assaults or demands. Sexual harassment is built on minor violations accrued over time—a put-down here, an off-color hint there—until the boundaries of normal workplace behavior have been eroded to the point of collapse, and the major crimes (assault, stalking, quid pro quo demands) can be committed without fear of violating norms.

Though some harassers may be more vicious and more predatory than others, the process of disintegrating those boundaries and establishing an unsafe environment is usually crowdsourced throughout an organization. If harassers don’t think they can get away with something, they won’t do it. Creating an environment in which they can get away with it—and in which they can get away with it precisely because everyone else is already doing it—is part of the process.

To think of sexual harassment as a problem of one bad man is to fall into the fallacy of seeing sexual assault as a crime of passion. Sexual harassment is much more likely to result in someone losing her job than in sex. Someone is unlikely to fall in love or lust because she’s been forced to undress in front of colleagues (something Tantaros alleges Ailes did to her) but she’s very likely to have her job performance compromised by psychological damage or distraction, or gain a reputation as difficult because she can’t safely or comfortably work with certain colleagues, or simply quit because she can’t bear to come into work.

Sexual harassers don’t want sex. They want to push women out of the labor force, which they can easily do by making work more dangerous for women than it is for men.

Though it’s tempting to see the Fox News situation as somehow due to the uniquely horrible politics or personalities of the people involved—and they are, indeed, horrible—workplace environments like that are common enough that up to 1 in 3 women reports experiencing workplace harassment in her lifetime. And while we often envision harassment as coming from a predatory boss, in practice it’s largely a horizontal crime, committed between people whose only real power differential is their gender.

In the above-cited survey, 75 percent of women’s harassment came from male co-workers, and only 38 percent came from male managers. (Female co-workers were also represented on the list—but comprised only 10 percent of perpetrators.) What causes workplace harassment isn’t the politics of the workplace, or even individual power dynamics. The underlying cause is how the organization sees and enforces gender.

One of the defining features of sexual harassment, and one of the main reasons few cases are ever formally reported to higher-ups, is that victims are often penalized (as Tantaros says she was) or faced with an escalation in the harassment (as Carlson says she was) if they speak up. By the time a harassment case gets bad enough that a woman asks for help, the systemic corruption has already taken hold and the deck is likely to be stacked against her.

Yet, as dangerous as speech can be, silence is worse. Consider the many silences that supported Ailes: The women who were kept out of jobs because they refused Ailes’ advances (thus narrowing the field to women who were less likely to report him), the women who were removed or told to “get along with the boys” or “let it go” if they complained about lesser instances of sexism (thus sending the clear message that reporting larger instances would not be welcome), the men who, in the absence of any consequences, learned to behave as if there were no rules and joined in with a grope here or a proposition there, or simply a daily habit of being nasty and demeaning to their female co-workers.

Each minor infraction gives other men the message that they can get away with similar or worse infractions. Each penalty dealt to a female co-worker teaches other women not to speak up or support their fellow victims. Before long, the entire organization is a minefield.

This is what we miss when we try to frame sexual harassment as a matter of a certain perpetrator, or a certain act or even a certain organization. Monsters breed in silence and shadow, and though we may be revolted by the ones we do occasionally bring to light, punishing or reviling them does nothing about the wider problem—which is our complicity, our participation in cultures that exalt men and feed off female humiliation.

Harassment isn’t an individual problem; it’s a problem inflicted by communities, either because the members participate in the violence or because they’ve learned to stay quiet as a means of self-defense. So, while it’s fun to point at Ailes and Fox News, we should also keep in mind that what we’re seeing is not unique, and maybe not even that special. We should look around at our own communities, and ask where the shadows have fallen and who might be getting hurt, just out of sight.

This article was originally posted at InTheseTimes.com on August 26, 2016. Reprinted with permission.

Sady Doyle is an In These Times Staff Writer. She also contributes regularly to Rookie Magazine, and was the founder of the blog Tiger Beatdown. She’s the winner of the first Women’s Media Center Social Media Award. She’s interested in women in pop culture, women creating pop culture, reproductive rights, and women’s relationship to the Internet and the Left. You can follow her on Twitter at @sadydoyle, or e-mail her at sady@inthesetimes.com.

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Tinder on Fire: How Women in Tech are Still Losing

Posted on August 21, 2014September 10, 2014 by Lisa Mak

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A “whore,” “gold-digger,” “desperate loser,” and “just a bad girl.” These are only a handful of the sexist comments that Whitney Wolfe, co-founder of the mobile dating app Tinder, alleges she was subjected to by chief marketing officer Justin Mateen. Last month, Wolfe brought suit against Tinder for sex discrimination and harassment. Wolfe’s legal complaint details how Mateen sent outrageously inappropriate text messages to her and threatened her job, and how Tinder CEO Sean Rad ignored her when she complained about Mateen’s abuse. Wolfe claims that Mateen and Rad took away her co-founder designation because having a 24-year-old “girl” as a co-founder “makes the company look like a joke” and being a female co-founder was “sluty.”

The conduct, which Wolfe’s complaint characterizes as “the worst of the misogynist, alpha-male stereotype too often associated with technology startups,” unfortunately remains the norm, and Wolfe is not alone in her experience. Last year, tech consultant Adria Richards was fired after she tweeted and blogged about offensive sexual jokes made by two men at a tech conference. After one of the men was fired from his job, Richards experienced horrendous Internet backlash, including rape and death threats. She was then fired by Sendgrid after an anonymous group hacked into the company’s system in some twisted attempt at vigilante “justice.”

In 2012, junior partner Ellen Pao filed a sexual harassment suits against a venture capital firm, alleging retaliation after refusing another partner’s sexual advances. And back in 2010, Anita Sarkeesian was the target of online harassment after she launched a Kickstarter campaign to fund a video series to explore female stereotypes in the gaming industry. An online video game was even released in which users could “beat up” Sarkeesian. These are just some of the many examples of demeaning attacks against women in the testosterone-driven tech world.

There are many state and federal laws that prohibit the kinds of workplace harassment that these women experience, including the federal Civil Rights Act of 1964, the California Fair Employment and Housing Act, the Bane and Ralph Act, and the California Constitution. These laws provide strong protections against gender harassment in employment and other contexts. So why do these attacks on women continue to happen in an industry that is supposedly progressive and populated with fairly educated adults?

It doesn’t help that tech companies are also notorious for their lack of diversity. This year, Google released its first diversity report which revealed that 70 percent of its workforce was male, and 61 percent was white. The workforce was also predominantly male and white at Facebook, Yahoo, Twitter, and LinkedIn. Another report this year shows that the percentage of women occupying CIO positions at companies has remained stagnant at 14 percent for the last decade. These numbers confirm what the stories reflect — that this industry truly is “a man’s world.” And this needs to change.

Some may dismiss Wolfe’s lawsuit and similar complaints as coming from women who are hypersensitive. Indeed, Wolfe claims that when she complained about Mateen’s harassment, she was dismissed as being “annoying” and “dramatic.” While some degree of social adaptation may be expected when joining any company, particularly freewheeling start-ups, there are limits that must be respected. Those limits are crossed when the pressure to conform to a white, male norm is so great that women who challenge this norm are further harassed or their voices suppressed.

Unfortunately, this marginalization of women who challenge the macho culture even comes from other women, who blame the “feminists” for making it harder for women to advance in tech. This also needs to change. Women who speak out about sexism and misogyny in the tech industry deserve the support of their colleagues, and men who turn to vitriol and juvenile behavior to intimidate deserve censure.

But change will not be achieved without help from sources outside the industry. Attorneys and employee advocates must continue to bring attention to the rampant sexism that is “business as usual” in the tech industry. We need to encourage tech companies of all stages and sizes to comply with employment laws, adopt proper HR practices, promote diversity and inclusion, and use objective standards to measure performance. If the tech industry is serious about encouraging young girls to become coders and developers, it also needs to place women in conspicuous leadership roles and pay real attention to change the “guy culture.”

The tech world doesn’t have to be a man’s world, and it shouldn’t be.

This blog originally appeared in CELA Voice on July 25, 2014. Reprinted with permission. http://celavoice.org/author/lisa-mak/.

About the Author: The authors name is Lisa Mak. Lisa Mak is an associate attorney at Lawless & Lawless in San Francisco, exclusively representing plaintiffs in employment matters. Her litigation work focuses on cases involving discrimination, harassment, whistleblower retaliation, medical leave, and labor violations. She is an active member of the CELA Diversity Committee, Co-Chair of the Asian American Bar Association’s Community Services Committee, a volunteer and supervising attorney at the Asian Law Caucus Workers’ Rights Clinic, and a Young Professionals Board member of Jumpstart Northern California working to promote early childhood education. She is a graduate of UC Hastings School of Law and UC San Diego.

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Workplace Bullying vs. Workplace Harassment: Is There a Difference?

Posted on July 26, 2013 by Teresa Zerilli-Edelglass

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Back when my workplace nightmare first began in 1992, during an 11-year tenure at New York City Transit that ended in termination on the heels of a hard-fought federal court victory, there was no such thing as “workplace bullying”. Bullying – or at least the term – was reserved for what one mean-spirited kid did to another in the schoolyard. However, “bullying” has now become the catch phrase for every mean-spirited act that one human being commits against another, whether in the workplace or the schoolyard — or just about anywhere!

Just at the time when I was finally beginning to realize my American Dream, the harassment began. Over time, with no help in sight, it escalated to epic proportions, causing debilitating mental illness that would eventually render me incapacitated. What I experienced back then was characterized as “harassment”. Today, this same treatment has evolved into “workplace bullying”, though legally speaking, it is still called harassment. (Unless I’ve missed something, I’ve never heard of anyone filing a “workplace bullying” claim.) Still, if one is harassed, he is being bullied. But are these terms legally interchangeable? Is it just semantics that separates them? Or do they, in fact, have different meanings.

We have traditionally associated workplace harassment with the unlawful behavior described under the various acts created by Congress to protect workers from unfair employment practices. Legislative measures (such as Title VII of the Civil Rights Act of 1964) exist to protect workers from discrimination against age, gender, race/color, religion, national origin, disability, genetic information, pregnancy, and compensation. It also prohibits sexual harassment and retaliation. While this might sound like a fairly inclusive body of protection, do these seemingly well-intentioned laws really cover everything? Should protection be afforded only to these “protected classes” for the specific violations they are designed to address?

The short answer: no.

An obvious gaping hole in employment law still remains; the door is wide open for a cornucopia of offenses screaming to be addressed. For instance, what about the fat person, the ugly (or pretty) one, the smelly one or the annoying one? And how about the once untouchable white guy who gets wrongfully kicked around? These folks have no real recourse except to complain to their supervisors, who, in all likelihood are ill-equipped to handle such matters.

When I worked for New York City Transit, I witnessed bullying like it was for sport. In fact, it was the managerial style of choice. When one of “the men” as they referred to themselves, got out of line in any way believed to be even remotely threatening, he would likely pay for it lest he fell back in line posthaste. God forbid, he resisted for he would be shipped off to the most undesirable location, usually the place no one wanted to be and that would make his life a living hell. In fact, that same threat was deviously employed on job interviews. One was pretty much forced to say he was okay with working at any one of the numerous locations in the system, albeit an outright lie. Then, once he conceded to being the flexible, indispensable best man for the job, he might well find himself in one of our little “Siberias” anyway because, after all, he said he was willing to go there. A real Catch 22, for sure.

Was this modus operandi unto itself harassment in the legal sense – or was it simply bullying? Well, unless one individual of a particular protected class, let’s say an employee over 40 amidst a group of twenty-somethings was singled out, it wouldn’t be classified as unlawful; however, it is not less wrong and must be treated as such. Working forever shrouded in fear of retribution is unacceptable.

Since having written Thrown Under the Bus: The Rise and Fall of the American Worker, it is amazing how many folks have felt compelled to come forward to share their workplace horror stories with me. They, too, attest that it is the bully’s way or the highway – with no help in sight. I pray that my book serves to lend some insight to ways in which to successfully navigate “the system” without undue repercussion.

In a nutshell, the message is this: workplace harassment has evolved to a new form of the same called ‘workplace bullying’, the catch-all phrase for the ubiquitously inappropriate treatment of anyone and everyone where such behavior rises to the same egregious level of currently actionable legal claims under the law. If you can prove that which you claim to have occurred as having risen to the same degree of unlawfulness as prescribed by Congress, you shouldn’t need to be part of a protected class, just an aggrieved employee of any stripe with a legitimate claim.

Printed with permission

About the Author: Teresa Zerilli-Edeleglass is the author of Thrown Under the Bus: The Rise and Fall of the American Worker, the provocative true story that begs the question: Is the American Dream ours for the taking, or can it just be taken away? Ms. Zerill-Edelglass earned a Bachelor of Science degree from St. John’s University in 1989 and an Executive Masters in Public Administration from Bernard Baruch College in 1992. It was in 1988 that the opportunity presented itself for Ms. Zerilli-Edelglass to switch gears from the private to the public sector, one she enthusiastically embraced. No sooner had all of her hard work finally begun to pay off when everything suddenly went up in smoke, laying the groundwork for ‘Thrown’. Thrown Under the Bus: The Rise and Fall of the American Worker is available online at Amazon, Barnes & Noble, and through the author’s website.

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A Modest Proposal for Veteran’s Day

Posted on November 10, 2011November 11, 2011 by Charlotte Fishman

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charlotte-fishman With Veteran’s Day fast upon us, the airwaves are awash in the rhetoric of appreciation for the sacrifice of military servicemen and women, but the Supreme Court seems not to have gotten the message. On October 2, the Court denied review of an astonishingly cold-blooded Fifth Circuit decision holding that a federal law prohibiting employment discrimination against military service members does not protect them from harassment on the job.

In Carder v. Continental Airlines 636 F.3d 172 (2011), a cringe-inducing opinion worthy of a Doonesbury cartoon, the Fifth Circuit refused to allow a workplace harassment claim brought by Continental Airlines pilots who are members of the United States Armed Forces Reserves and the Air National Guard to go forward. In a class action complaint that includes multiple violations of the Uniformed Services Employment, Reemployment and Rights Act [USERRA], the pilots alleged a continuous pattern of insult and derisive comments directed at their military service, excessive scrutiny of off-duty military activity, interference with military leave, threats of termination and denial of flight time affecting their retirement benefits.

Congress enacted USERRA for three purposes: (1) to encourage noncareer service in the uniformed services; (2) to minimize disruption to the lives of servicemembers, employers, fellow employees and communities; and (3) to prohibit discrimination against employees because of their service. It doesn’t take a rocket scientist to recognize that fulfillment of the third purpose is critical to success of the first. To insure robust enforcement, Congress mandated that the statute be “broadly construed” for the benefit of service members.

USERRA prohibits discrimination using language that is similar, but not identical to Title VII of the historic Civil Rights Act of 1964. Title VII prohibits discrimination with respect to the “terms, conditions, or privileges of employment, “ while USERRA prohibits discrimination with respect to “initial employment, reemployment, retention in employment, promotion, or any benefit of employment.” Congress defined “benefit of employment” as “any advantage, profit, privilege, gain, status, account, or interest” arising from the employment relationship.

From 1964 to the present, federal employment discrimination law has evolved and expanded in scope as Congress added new protected categories, and the federal courts ruled that statutes prohibiting discrimination encompass harassment and hostile work environment claims. In Meritor Savings Bank v. Vinson, 477 U.S. 37 (1986) the Supreme Court ruled that sexual harassment violates Title VII’s prohibition against sex discrimination, and in Harris v. Forklift Systems 510 U.S. 17 (1993) the Court announced that “hostile work environment” harassment also violates Title VII, provided the conduct is “severe or pervasive” enough to create an abusive work environment.

In a perfect world, USERRA’s plain language and statutory purpose, coupled with Supreme Court precedent and common sense would have led the Fifth Circuit to afford military service members the same protection against harassment enjoyed by other protected groups. Instead, the Court unaccountably seized on Congress’ failure to use the magic words “terms, conditions, and privileges of employment” as proof that it intended USERRA to provide a “more circumscribed set of actionable rights.” Having convinced itself (in the absence of any data) that harassment of military service members is not a widespread social problem in need of a remedy, the Court dismissed the pilots’ hostile environment claims, leaving them to “suck it up.”

In making an assumption that service members are not subject to the “invidious” and “irrational” harassment experienced by traditionally disadvantaged minorities, the Court utterly failed to take into account the realities of our post 9/11 world. In recent years, “citizen soldiers” have had to endure lengthier and more frequent deployments than at any other time in our nation’s history.

The trigger for employer harassment is, ironically, the very thing that society professes to value most – a service member’s willingness to disrupt his or her career to serve the nation. Deployments not only create pain and suffering for service members and their families, they also disrupt work schedules and cause financial hardship for employers. The greater the disruption and expense, the greater the employer’s “rational” incentive to get rid of employees with military service obligations.

Without statutory protection against harassment, service members are at the mercy of supervisors who foment resentment among co-workers or engage in disciplinary harassment in an attempt to avoid the “shared sacrifice” mandated by USERRA. Since reservists are typically locked into multi-year enlistment contracts, separation from the military to avoid harassment is not an option. In an economy in which jobs are scarce and unemployment high, quitting when the harassment becomes unendurable and suing for constructive discharge – the Court’s proposed “solution” – isn’t viable either.

Congress’ purpose would have been better served if the Supreme Court had summarily reversed the Fifth Circuit or agreed to hear the case and issue a definitive ruling that USERRA prohibits workplace harassment. Unfortunately, waiting for another case to wend its way to the Supreme Court can take years. With tens of thousands of deployed servicemen and women poised to return by year’s end, Congressional action is needed to secure their right to a harassment-free workplace now.

Happily, there is something we can do. As every 8^th grader knows, our democracy is protected by a system of checks and balances. When the Supreme Court fails to protect important rights, citizens can petition Congress to fill the gap. Why not honor Veteran’s Day by asking your Senator or Representative to amend USERRA to clarify that a harassment-free workplace is a “benefit” of employment? As an expression of gratitude, it sure beats “Thanks for your service, but it’s hell on our bottom line.”

About the Author: Charlotte Fishman is a San Francisco attorney, and Executive Director of Pick Up the Pace, a nonprofit organization whose mission is to identify and eliminate barriers to women’s advancement in the workplace.

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A Modest Proposal for Veteran’s Day

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