Testimony of Susan L. Harper, Esq.
Chair, Women in Law Section, New York State Bar Association
Joint Senate & Assembly Public Hearing on Sexual Harassment in the Workplace
Wednesday, February 13, 2019
Thank you very much for allowing me to address you today. I am the Chair of the New York State Bar Association's Women in Law Section. Our section's mission is to advance women in the legal profession and all women under the law. We achieve this through many different means, including education, programming, advocacy and by legislation and policy review.
Before I begin, I want to thank you very for your continued leadership and legislative efforts to raise awareness through this hearing on workplace sexual harassment.
Most of you here today are well aware that sexual harassment is a huge problem in American society. It is important to talk about just how pervasive it is:
A recent survey from a group called Stop Street Harassment found that 81 percent of women and 43 percent of men had experienced some form of sexual harassment during their lifetimes.
Thirty-eight percent of these women - nearly four out of 10 -- said they experienced sexual harassment at the workplace.
Other research indicates that workplace sexual harassment and assault is most prevalent in accommodation, food service and restaurants, retail trade, health care, manufacturing, and administrative support positions.
Three-quarters of all women working in jobs where they rely on tips for wages report tolerating inappropriate behavior. Eighty percent of those working in restaurants -- both women and men -- have experienced harassment from co-workers, including managers or customers.
These statistics are troubling. It is difficult enough in this world to try to get by on lower wages, but to have to endure sexual harassment as part of your 'silent' job description is truly unjust.
Last month at the New York State Bar Association's Annual Meeting, I participated in a panel on sexual harassment organized by our president, Michael Miller, who has been an outstanding champion of these issues.
Mr. Miller asked me and other panelists to consider why sexual harassment remains so prevalent in our society, despite widespread laws and policies aimed at preventing it.
While some of these laws and policies have been in place for many years, others are relatively new.
My fellow panelists and I agreed that they are essential, but that they alone are not enough. The far greater challenge is thinking boldly and innovatively to continue changing the culture.
But how do we do that? There is no simple answer but evaluating risks factors and focusing on accountability is certainly a part of it.
One law firm report recommended that organizations undertake an internal assessment of whether certain risk factors exist in the organization that could heighten the risk of harassment.
Some of these factors include: "homogenous workforces, cultural and language differences, workplaces with 'high-value' employees or power disparities, decentralized and isolated workplaces, and workplace cultures that tolerate or encourage alcohol consumption."
In companies when there is a lack of diversity at all levels and workplaces where there is a power imbalance between managers and employees, you can easily see how such risk factors could possibly lead to such behavior.
Victims of sexual harassment need to feel comfortable about coming forward with allegations, and they need to believe that there will be a fair and good faith process that protects them. The #MeToo movement has helped empower some victims, but we need to recognize that others continue to believe that they simply cannot speak up.
For example, consider the waitress, office worker or hotel worker who depends on her relatively low-wage job to pay her rent and feed her children, women who know that if they complain about being sexual harassed by their supervisors, those bosses may come up with a reason to fire them or retaliate against them by demoting or discrediting them. In the restaurant industry, this means Sally doesn't get her regular station with the high-paying tippers, she is moved to a less desirable section. At the hotel, Mary is fearful to speak up because she is concerned that the customer may retaliate by complaining about his hotel stay on a travel site, and that "corporate" will take note of that.
But let's be fair here: it happens at all levels, in all kinds of settings and industries. The impact on individuals, colleagues, and companies is significant. Workers may leave their jobs, drop out of industries and professions completely and may develop depression or other mental health issues or turn to alcohol and substance abuse.
So how do we improve accountability?
Some aspects of the legislation enacted by the Legislature last year will help, such as required training, prohibiting employers from using mandatory arbitration in employment contracts in relation to sexual harassment and limiting the use of nondisclosure agreements that could protect a harasser.
New York City mandates providing information concerning bystander intervention, including any resources that explain how you or I could step in to stop sexual harassment in a given situation. Implementing such training on a statewide level and not just in New York City and developing a public service campaign to build awareness to empower bystanders would be helpful step towards building support for victims and a more inclusive society.
We also need to recognize that continuing to expand the opportunities for women to rise to the highest levels of all institutions in our society is essential to address the issue of sexual harassment.
Diversity in leadership from the board of directors and the 'C-suite' on down can and will make a difference. The risk factors that I noted earlier -- homogenous workplaces and power imbalances -- are all too common.
Given that four of the six committee chairs convening this hearing are women, and that New York State just elected its first female attorney general, and that the State Senate is now led by a woman who is the first female legislative leader in state history, you can appreciate that women leaders in some spheres are only now taking their seats at the table.
Yet, despite our advances, we have to acknowledge that women still have a way to go.
The stats are familiar in the corporate world. According to a 2019 report from Catalyst, women make up only 4.8 percent of CEOs, 11 percent of top earners, and just 21.2 percent of the board members at S&P 500 companies.
In the legal world, only 20 percent of law firm partners are women, and about 30 percent of judges are women.
A 2017 report from the State Bar's Commercial and Federal Litigation Section Task Force on Women's Initiatives surveyed state and federal judges and found that women are still significantly underrepresented in many areas of legal practice - this despite the fact that more and more women are attending law school, passing the bar exam and becoming attorneys.
This homogeneity is a risk factor in the accountability equation. According to a report in the American Lawyer on sexual harassment, "The research is clear: gender inequality is a significant predictor of sexual harassment occurring in a workplace.... the problem of harassment can't be grappled with in isolation; law firms [like all organizations] must try to tackle both harassment and inequality simultaneously."
There are no easy answers here and a lot of work left to be done. One thing is clear, however: We will not be able to eliminate sexual harassment in the workplace with laws and policies alone. But holding hearings like this one today to understand what more we can do; continuing to evaluate risk factors and possible gaps in law and policy; and tracking metrics, especially in vulnerable populations, will continue to be an essential element in making progress to address the bigger problem and working to develop innovative initiatives.
The District of Columbia, for example, has developed training specifically for restaurant workers. California has passed legislation supporting women on boards of directors. Many state legislatures, including this one, have introduced legislation to address constitutional equality, to recognize women as equal members of our society, and to ensure fair and equal treatment of both women and men in our culture, in the workplace, and under the law.
On behalf of the 72,000 members of the New York State Bar Association, I want to thank the State Legislature for holding this hearing and for continuing to look for ways to protect all of us -- women and men -- from sexual harassment.