Massachusetts congresswomen on Tuesday introduced a bill that represents the first sweeping federal effort to address the systemic legal and workplace inequities exposed by the viral #MeToo movement — including an ambitious effort to phase out the tipped minimum wage, which advocates say makes women especially vulnerable to sexual harassment.
“From Hollywood to Congress, restaurants to farm fields, women and men in every type of workplace have seen harassment and discrimination be brushed aside for far too long,” US Representative Katherine Clark, one of the bill’s sponsors, said during a Washington, D.C., press conference live-streamed on Twitter. “Today, we have a simple message. Time’s up.”
Clark was joined by fellow Massachusetts US Representative Ayanna Pressley, who noted that having once worked in a hotel herself, she is “acutely aware of the powerlessness that many workers feel in what is too often deemed an invisible workforce.” Pressley also said she was thinking of Boston’s female firefighters, “who day in and out, risk their lives for the safety of our community and face harassment from male colleagues in their firehouses.”
Called the “BE HEARD in the Workplace Act,” which stands for “Bringing an End to Harassment by Enhancing Accountability and Rejecting Discrimination,” the bill would extend the statute of limitations for bringing a sexual harassment claim (from 180 days to four years); eliminate a cap on damages for those who bring successful claims; and prevent companies from requiring new employees to sign off on mandatory arbitration or nondisclosure agreements that could prevent them from speaking out about harassment on the job.
“That’s really what #MeToo was all about — this culture of silence, which leads to a culture of impunity because the employers know that whatever happens is never going to see the light of day.” said Lenora Lapidus, director of the American Civil Liberties Union Women’s Rights Project.
Nondisclosure agreements could still be negotiated as part of a settlement, in part because many victims of sexual harassment do not want publicity, proponents said.
The bill would also clarify that workplace harassment is unwelcome conduct that unreasonably interferes with someone’s work or creates an intimidating, hostile, or offensive work environment. A Supreme Court ruling led to lower court interpretations that behavior had to be severe or pervasive to constitute harassment, Lapidus noted.
“For the past 30 years, lower courts have distorted Supreme Court precedent to deny remedies for survivors of sexual harassment and assault unless they could demonstrate that the conduct was ‘severe or pervasive,’ ” said Lapidus. “This standard set the bar too high for may survivors to meet.“
The bill would extend the Civil Rights Act’s protections to include workplace discrimination based on sexual orientation and gender identity. Under President Trump, the Justice Department has taken the interpretation that they are not protected under the 1964 Civil Rights Act, which bars discrimination in the workplace based on “race, color, religion, sex, or national origin.”
The bill would also expand protections for many workers who are not explicitly protected under federal law — including independent contractors, domestic workers, farm workers, home health care aides, interns, and volunteers. Domestic workers — whose work occurs “behind closed doors” — are quietly susceptible to abuse, Adriana Cazorla, an advocate with the National Domestic Workers Alliance, said at the press conference through an interpreter.
One of her former employers asked her to clean the house naked, so that he could see she wasn’t stealing, she said. Another wanted to wrestle with her.
“In the end, I was able to escape these situations, both of them, but I didn’t receive any payment for the work that I had done,” she said.
In its most sweeping change, the measure would eliminate the lower minimum wage for workers who also rely on tips they receive from customers. At the same time, Democrats are making a parallel effort through the Raise the Wage Act, which would raise the federal minimum wage to $15 and phase out the lower rate for tipped workers, which has been $2.13 since 1996.
In Massachusetts, the tipped minimum wage is $4.35, slated to increase to $6.75 an hour by January 2023, and the minimum wage is $12 an hour.
Women represent more than two-thirds of tipped workers nationwide, according to the National Women’s Law Center. They are particularly vulnerable to sexual harassment, Venorica Tucker, who has worked most of her life on tipped wages, said at the press conference.
“You can’t stand up for yourself because the customer pays your wages — not your employer,” she said. “And employers imply the customer’s always right.”
Such a major change in compensation is likely to have a ripple effect through the restaurant industry, however, and potentially will be fought by the National Restaurant Association.
“Eliminating tips will hurt hundreds of thousands of servers who rely on it to take care of their families,” Shannon Meade, the association’s vice president of public policy and workforce said in a statement.
Individual restaurants have changed their structures, though. When Josh Lewin opened Juliet restaurant in Somerville, with a partner who had a background in social justice, they put the focus on sustainability for workers. All employees, including dishwashers, get a $15 base wage. Instead of tips as an incentive for stellar work, they get the incentive of profit sharing. That required payroll taxes and higher menu prices -- from a certain perspective.
“If you spend $20 on a meal at another restaurant, you have to pay an extra $4,” he said, pointing to tax and gratuity. “We just charge $24. People don’t really have to pay more. They just have to agree to pay more on the menu price.”
Juliet was profitable within the first year and Lewin now plans to open a second restaurant on Beacon Hill.
“We are three years in and we have a model that says this is possible,” said Lewin.