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Democrats’ sweeping new anti-harassment bill, explained

For a lot of American workers, #MeToo hasn’t changed much. This bill aims to help them.

McDonald’s workers and other activists protest sexual harassment at the fast food chain’s restaurants on September 18, 2018 in Chicago, Illinois.
Scott Olson/Getty IMages

The #MeToo movement may have toppled producer Harvey Weinstein and other men accused of sexual misconduct from their positions of power, but according to caterer Venorica Tucker, it hasn’t put a stop to the harassment many servers and bartenders deal with every day.

“Sometimes there’s a little pinch; sometimes there’s just little comments or brushing up against you,” said Tucker, who works in catering at the US House of Representatives and is an advocate with the group Restaurant Opportunities Centers United. “Sometimes they will indicate that they might tip you better if you’re a little friendlier.”

“You would think that people wouldn’t be bold enough to still play that card, but they do,” Tucker told Vox.

Since the #MeToo movement gained public attention in 2017, sexual misconduct allegations against high-profile men have made headlines around the world. But for food servers and other workers harassed or assaulted by people who aren’t famous and under circumstances that make it difficult or impossible to report, it’s not clear whether much has changed.

On Tuesday, Democrats in Congress will introduce legislation aimed at helping those workers. Called the Bringing an End to Harassment by Enhancing Accountability and Rejecting Discrimination (BE HEARD) in the Workplace Act, it would close loopholes in federal discrimination law that leave many domestic workers without legal protections from sexual harassment. It would authorize grants for low-income workers to help them seek legal recourse if they are harassed. And, crucially for food service workers like Tucker, it would eliminate the lower minimum wage for tipped workers, which many say makes servers vulnerable to harassment by customers.

“Some women did and do still think that in order to make the extra tip, they have to ignore unwanted touches and unwanted comments,” Tucker said, “and we shouldn’t have to.”

The legislation could face an uphill battle in a Republican-controlled Senate. But it’s an example of a larger move toward systemic changes that would go beyond deposing a few big-name men, and help the many workers in America whose harassment never makes the news.

“This is for the brave women of the Boston Fire Department, for the hotel workers I worked alongside when I was scraping money together to help my family, for the transgender men and women who face discrimination for living their truth,” said Rep. Ayanna Pressley (D-MA), a lead co-sponsor of the legislation, at a press conference on Tuesday. “Now is the time to push the conversations and the policies so that those who have been suffering in silence feel seen and represented in our democracy.”

The BE HEARD Act would end the tipped minimum wage, and more

The BE HEARD Act, introduced in the House and Senate on Tuesday by Sen. Patty Murray (D-WA), Rep. Katherine Clark (D-MA), Pressley, and other co-sponsors, follows a report compiled by staff of the Senate Committee on Health, Education, Labor, and Pensions last December. The authors of the report interviewed a number of workers like Gilda, a domestic worker who was raped by a male client, and June, a home care worker whose client groped and propositioned her. The reports’ authors argued that current law fails such workers and offered a number of recommendations that would help protect them, many of which are reflected in the legislation.

“When we started work on the Be HEARD Act, we’d heard a lot about abuses of power in Hollywood and in Congress,” Murray said in prepared remarks provided to Vox. “What we wanted to do was shine a spotlight on workers who weren’t in those headlines.”

The provisions of the BE HEARD Act include:

  • Eliminating the tipped minimum wage. The federal minimum wage for many servers and other tipped workers is just $2.13 an hour, and they rely on gratuities from customers to make up the difference. (If a worker does not earn the equivalent of the minimum wage in tips, federal law requires employers to make up the difference, a system that advocates argue makes tipped workers vulnerable to wage theft.)

For some, that can mean enduring harassment in order to pay their bills. That’s why restaurant workers and their advocates have long called for eliminating the tipped minimum wage, making the full federal minimum wage apply to all workers, regardless of whether they make money in tips.

  • Extends harassment protections to workers at small businesses, independent contractors, and more. The Civil Rights Act of 1964 prohibits employers from discriminating on the basis of gender — and sexual harassment is considered a form of gender discrimination. But as Vox’s Alexia Fernández Campbell has reported, employers with fewer than 15 workers are exempt, which means more than 12 million workers — many of them nannies, home health care aides, or workers on family farms — don’t have access to the same protections as other workers.

The BE HEARD Act would close that loophole. It would also extend federal discrimination protections to apply to independent contractors, a change that could help workers in the entertainment industry, many of whom work on a contract basis. The report tells the story of Angela, who provides beauty services to actors and models on a freelance basis. Angela says her former agent repeatedly called her racist and misogynist slurs and, when she complained, punished her by canceling bookings. If Angela, a contract worker, had been protected by federal law, she could have brought a harassment claim against her agent, the report notes.

The legislation also includes language clarifying that discrimination on the basis of sexual orientation and gender identity is illegal under the Civil Rights Act, a move that could help protect LGBTQ workers.

  • Bans mandatory arbitration clauses. When they’re hired, many Americans are now forced to sign clauses promising that if they have a dispute with the company, they’ll take it up in private arbitration — a process that has no judge or jury, and under which workers are less likely to win. About half of non-unionized workers in America are subject to such clauses, as Fernández Campbell and Alvin Chang reported at Vox last year, and they make it harder for workers to hold employers accountable for sexual harassment or other forms of discrimination. The BE HEARD Act would ban mandatory arbitration clauses, as well as barring certain kinds of nondisclosure agreements, which some employers have used to keep employees from speaking out about sexual harassment.
  • Creates a grant program to provide legal assistance to low-income workers. The legal right to bring a harassment claim doesn’t help much if a worker can’t afford to hire a lawyer. According to the report, low-income families seek legal help for only about 19 percent of employment-related legal issues. The BE HEARD Act would set up a program to help low-income workers pay for lawyers and other resources they may need when dealing with sexual harassment cases.

The legislation includes a number of other provisions, including setting aside money for a nationwide survey on the prevalence of harassment. As the report notes, though there are a number of federal efforts to track sexual violence around the country, “no similar data collection about the prevalence of workplace harassment or workers’ experiences facing this type of discrimination exists.”

The legislation faces an uncertain future — but some parts have attracted Republican support

Some of the ideas in the BE HEARD Act have attracted bipartisan support recently. Republicans held a committee hearing last week on the issue of mandatory arbitration, with South Carolina Sen. Lindsey Graham and others expressing concern about the use of arbitration clauses. Meanwhile, Republicans in the House and Senate have joined with Democrats to introduce legislation barring employers from forcing employees to sign nondisclosure agreements.

That legislation has yet to pass, however. And the BE HEARD Act may face a difficult road in the Republican-controlled Senate. In particular, Republicans in Congress have generally opposed efforts to raise the minimum wage.

Meanwhile, some worker advocates point out that with any anti-harassment legislation, enforcement is critical. The BE HEARD Act “represents a critical step in the right direction for the country, redressing loopholes in existing legislation regarding who has access to justice in the workplace,” the Coalition of Immokalee Workers, a group that has worked to fight harassment of farmworkers, told Vox in a statement. But “it is critical that this new legislation be coupled with a clear enforcement strategy for the agencies responsible for ensuring that the new laws on the books are translated into new practices on the ground.”

Still, supporters of the legislation are hopeful it will remind Americans that sexual harassment remains a part of many workers’ everyday lives, even in the era of #MeToo.

“If we can get people to recognize that this is a very serious thing,” Tucker said, “hopefully they’ll understand that these are things that are not impossible to correct.”