In a Day's Work Read online

  He had already summoned Hernández to his office a few times, but she had never gone, because she knew what showing up might mean. But she had been doing good work and she needed a raise. She was sending money back to her kids and her mother every two weeks. Her remittances plus the rent she paid for a single room in a crowded Los Angeles apartment never left her enough to survive on. Sometimes she was late with her rent, and sometimes she didn’t have enough money to eat. She took the risk and went to the supervisor’s office to ask for more money.

  When she got to his office, he told her to take a seat. She explained that she needed a raise, and the supervisor told her that coincidentally, the factory had landed a new client, and he was looking for someone to supervise the line. It was a promotion with a raise, but before she could agree to it, he dropped a pair of pants on the floor next to him and said, “Pick it up.”

  Hernández asked him why he wanted her to pick them up, since she was seated on the other side of the desk. “Well, I’m paying you to pick it up,” he replied. Hernández walked over and bent down to pick up the pants. Her supervisor turned toward her with his zipper undone.

  She grabbed the pants and handed them to him before running out of the office. Flustered, she told a co-worker that she couldn’t work there anymore because the supervisor scared her. “This is not good what he is doing,” Hernández said.

  The co-worker encouraged her to take it in stride, because the supervisor was rich and he would pay her well if Hernández did what she was told. After all, her co-worker had said, all he asked you to do was pick up a pair of pants.

  Hernández quit. Soon after, she got her job as a janitor on the night shift.

  When Georgina Hernández was harassed and then raped by her supervisor at the hotel that she cleaned, she was one in a legion of janitors who worked for a small cleaning company with no real physical or business infrastructure. More than 60 percent of janitors work for similar enterprises—hard-to-find businesses that have fewer than four employees and sign contracts to clean buildings spread throughout a city or region.1 The cleaning company’s workers are then dispatched to these far-flung spaces alone or in small groups, usually at night. An on-site supervisor may be the only representative of the company that they ever interact with, a situation that gives the supervisor a significant amount of power to wield.

  As an undocumented single mother working for a little-noticed operation in a notoriously opaque industry, Hernández was an obvious target for an unscrupulous supervisor. By most expectations, her rape claims were transgressions that should have remained hidden. As a newcomer, she didn’t know what her rights were or whom she could trust to ask for help. And because her job is deliberately made invisible, it was difficult for worker advocates to reach her. Hernández found help only because of her improbable encounter with Vicky Márquez of the Maintenance Cooperation Trust Fund during one of organization’s nighttime undercover outreach operations. Márquez and the organization became a lifeline to Hernández, helping her resolve problems with her paycheck, and supporting her through the aftermath of the sexual attacks.

  In other low-wage industries where female immigrants tend to flock, worker-led organizations have similarly stepped in when there are few safety nets for women abused at work. For servers and bartenders, there’s the Restaurant Opportunities Center United, which was started in New York City and now has nine local affiliates throughout the country. In domestic work, there are organizations that collaborate with the National Domestic Workers Alliance, such as the Brazilian Workers Center in Massachusetts or the Southwest Workers Union in Texas. For California farmworkers, Líderes Campesinas and Campesinas Unidas have, for decades, hosted community events to educate workers about sexual harassment, and held meetings in houses and backyards so that women can discuss health and safety issues, like sexual abuse. This type of support is especially important for workers so determined to keep their jobs that they are not likely to report a problem. “When they know they can have some type of security, some kind of protection, then they’ll come forth,” says Dolores Huerta, the farmworker organizer who co-founded the United Farm Workers in 1962. “But it takes a lot. It takes a lot.”

  Worker advocates say that if Georgina Hernández had been part of a labor union, things might have been different. At the very least, she would have had a more direct path to finding help. But unions have had their own struggles with addressing on-the-job sexual harassment and assault, and it’s not an issue on which organized labor has historically led the way.

  For the bulk of the last century, labor unions focused on improving the wages, hours, and working conditions of male workers in industrial jobs.2 Although the earliest unions in the United States, such as the Knights of Labor and the Industrial Workers of the World, were inclusive of women, minorities, and unskilled workers, the dominant unions at the dawn of the twentieth century were founded and led by men in the craft trades.3 Marion G. Crain, a law professor, and Ken Matheny, a federal government attorney, have co-authored law journal articles about organized labor, and they observed that these male-dominated unions historically focused on job protection and workplace organizing in skilled professions that resulted in the exclusion of minorities and women, or at the very least made it difficult for these groups to meaningfully participate. Under this model of organizing, they wrote, “White male shop floor culture was the foundation of solidarity.”4

  The experiences and issues important to female workers, such as sexual harassment, were not prioritized by the unions where men made up the bulk of the rank and file, the organizers, the bargaining committee members, and the leaders. As a result, by the middle of the twentieth century, women and minorities began turning to the government to address the problem as a form of workplace discrimination.5

  In recent decades, female participation and leadership in unions has increased, but like every type of organization, unions have negotiated internal struggles around racism and sexism with varying degrees of progress. “The labor movement is a microcosm of society,” says KC Wagner, director of workplace issues at Cornell University’s Industry and Labor Relations School. Constituency groups of unions have sought to bring together diverse workers to address labor issues across industries and workplaces. The Coalition of Labor Union Women, for example, has been crucial in advancing discussion and action on issues that affect female workers, such as sexual harassment.

  Wagner has been working with unions for more than thirty years to incorporate the experiences of women workers into the organized labor agenda. Before that, she was the counseling director of the Working Women’s Institute, an organization founded in 1975 by a sexual harassment victim, and one of the country’s first community-based organizations to focus on the issue. In those roles, Wagner has seen the incremental change in perception and awareness around sexual violence at work. At the Working Women’s Institute in the early 1980s, Wagner came to see how deeply misunderstood the problem was. At the time, the prevailing notion in many workplaces was that sexual harassment was the natural order of things, a problematic idea accompanied by the faulty yet enduring assumption that victims would naturally report or confront the perpetrators.

  The thinking within male-dominated unions was no different. Workplace sexual harassment and assault were either misunderstood or simply not on the radar of the men who made up the bulk of the union membership and leadership. Unions were forced, however, to take a closer look at the subject in 1980, when the U.S. Equal Employment Opportunity Commission issued its first guidelines on sexual harassment. Simultaneously, an emerging docket of sexual harassment lawsuits began to drive home the point that there were consequences for workers who harass and penalties for companies that allow it to happen. “That really signaled a wave in unions addressing it because the law had identified it as a problem,” Wagner says. “Prior to that, people thought that this was just what happened between men and women.”

  Beginning in the 1970s, as more women entered the workforce, organizati
ons focused on women’s equality in jobs and education, such as 9to5, Equal Rights Advocates, and the Family Violence Prevention Fund (now known as Futures Without Violence) pushed employers and unions to take greater responsibility for addressing sexual harassment. The first unions to directly take on the issue tended to have a larger number of women on their membership rolls, such as the United Auto Workers, which had seen an influx of women workers—a trend embodied by the cultural icon Rosie the Riveter—during World War II.

  As with many organizations, labor union attention to sexual harassment increased after Anita Hill testified at Clarence Thomas’s confirmation hearing. A year later, in 1992, the American Federation of State, County and Municipal Employees, the country’s largest union for public service employees, adopted a resolution explicitly condemning sexual harassment. The union represents the job sector where female union membership has been the largest.6

  The growth in female union leadership has also prompted greater attention to issues like sexual harassment within organized labor itself. Dolores Huerta says that at various points during her work with the United Farm Workers in the 1960s and 1970s, she had to push the men she worked with to become more aware of the offhand sexist comments they were making. “That’s why it’s so important to have women involved,” Huerta says. “The best way to curb this type of macho sexist culture is to make sure that women are involved.”

  At Cornell’s Industrial Labor Relations School, KC Wagner has spent the past few decades training unions about sexual and gendered violence in the workplace. For some unions and some members, the relevance of these issues has not always been clear, so she has developed strategies to help them see the connections between sexual violence and the values that unions hold dear. “If you see it as a structural issue, as a violation of rights, then you can create the link to how this connects to workplace rights and worker rights,” Wagner says.

  She has reminded unions and their members that they all share core values related to social justice, mutual aid, and solidarity, and she asserts that combating sexual violence at work speaks directly to that. If sexual harassment or violence is dismissed by a union as a private matter, she helps them see that it undermines worker productivity and efficiency. She has told unions that, just as they emphasize protective gear and safety protocols, they should work to prevent sexual violence, which is a workplace safety issue too.

  Skepticism among some unions and their members has not completely fallen away. During a recent training on sexual violence and domestic violence, she was told that she was just being “politically correct.” She assured the audience that there was more to it than hewing to a party line. In addition to shared values of dignity and respect in the workplace, she told the group, “This is about the law, about efficiency and productivity, and it’s about conflict resolution.”

  These days, there is greater awareness of sexual harassment within unions—and throughout society as a whole—than when Wagner first began this work three decades ago. Though it remains a marginalized issue, it has increasingly become an accepted issue for union advocacy. These days, sexual harassment prevention and protection is often incorporated into contracts during negotiations. It is not uncommon for union committees on workplace safety or women’s issues to sponsor sexual harassment training for their members. This is the case among the country’s largest unions. The Service Employees International Union provides training to its locals, and the American Federation of Labor–Congress of Industrial Organizations (AFL-CIO) advanced an “Economic Agenda for Working Women and Our Families” in 2016 that specifically called for ending workplace violence and harassment. Wagner is involved in developing both a training program that the AFL-CIO will offer to its affiliates and a survey of workers on gender-based violence. Taken together, these efforts are a move to shift the cultural norms of a worksite or industry so that sexual harassment is not tolerated, a tactic that researchers like Louise Fitzgerald, John Pryor, and others have found can minimize the problem. “There are so many levels, looking at how unions are structured, that they can make sexual harassment prevention part of the lifeblood of the union,” Wagner says.

  Of course, the presence of unions alone doesn’t eliminate sexual harassment or assault at work. These cases can be especially complicated for unions because they have a duty to provide “fair representation” to every union member, which means they might find themselves representing both the accuser and the accused in the sexual harassment claims against the employer. “It’s not that unions condone the behavior, but they do need to make sure there is due process,” Wagner says.

  The tensions for unions that come from representing both the accuser and the accused were highlighted in a case involving a San Francisco cleaner named María Bojórquez, who had taken a cleaning job in 2004. She worked for one of the country’s largest cleaning companies, ABM Industries, which is unionized in many cities. It has dealt with its share of sexual harassment complaints, and the company says that it is a target for sexual harassment lawsuits precisely because it is a large corporation with deep pockets. And unlike underground operations or the tiny businesses that make up the bulk of the janitorial industry, ABM says it is a professionally run corporation with a human resources department that offers workers sexual harassment training and a process for lodging complaints. “ABM is committed to fostering a professional and safe work environment for all of our employees,” a representative of the company said in a statement.7 “We have implemented comprehensive state of the art policies and procedures to prevent harassment. These are provided to employees beginning when they are hired and again on a continuing basis.”

  Even so, among large companies, ABM has seen a number of sexual harassment lawsuits involving extreme claims. It is among a small group of more than two dozen American companies that have been sued by the U.S. Equal Employment Opportunity Commission multiple times for sexual harassment. Two of those cases against ABM involved allegations of on-the-job rape.

  Bojórquez brought another sexual harassment claim against the company in 2010. It, too, made a charge of workplace rape. Bojórquez had been assigned to clean law offices in San Francisco’s iconic Ferry Building. Soon after she started the job, her boss began making her uncomfortable when he used sexual language around her and looked for excuses to touch her buttocks and breasts when he came by to monitor her work. About six weeks into the job, the supervisor called Bojórquez into an office and told her to pick up tiny pieces of paper that had fallen on the floor. When she went to begin the task, she says, he tripped her and raped her where she fell.

  Bojórquez was let go, and she eventually filed a sexual harassment lawsuit against ABM with the help of Equal Rights Advocates, a women’s rights and legal advocacy organization. Though sexual harassment cases rarely go to trial, her case went before a jury two years later. It found in Bojórquez’s favor. ABM appealed the verdict, and the case was settled in 2015. In settling, the company denied liability but agreed to make a payout to Bojórquez and to implement an outside review process for rape and attempted rape claims. The accused foreman also denied the allegations at trial.

  Bojórquez’s David-and-Goliath case—a single janitor winning a jury trial against a multibillion-dollar company—brought sustained attention to the problem, changes at the company, and some justice for Bojórquez. At the same time, unionization protected the accused foreman’s job. After the company’s internal investigation was completed—the case was deemed “inconclusive” because ABM could not find corroborating evidence of Bojórquez’s claims—he filed a union grievance against ABM for moving him from his preferred worksite. The union helped him negotiate an agreement that led to a permanent move to another location with the same pay, benefits, and seniority. During Bojórquez’s lawsuit, the union had also filed an affidavit that supported one of the company’s legal positions that would help ABM limit its liability for the alleged rape.

  Unions operate under the weight of a complex political calculus when hand
ling sexual harassment claims, and many do not have a long tradition of tackling the issue proactively. Sometimes, union officials are themselves the perpetrators. Undeniably, organized labor’s influence and reach on the issue is significant. “Unions can be agents of change or agents in maintaining the status quo,” says Jennifer Reisch, an attorney with Equal Rights Advocates who represented María Bojórquez. “What cases like María’s do is help force organized labor and employers to realize that the status quo is not okay.”

  In 2016, four years after Bojórquez’s case went to trial, the SEIU United Workers West, the janitor’s union in California, made a decisive choice to deploy its energy and activism toward abolishing workplace sexual violence. In the process, it became exemplary of what a union can accomplish when it resolves to take the lead.

  When Vicky Márquez of the Maintenance Cooperation Trust Fund met Georgina Hernández on a nighttime undercover investigation, she could not have predicted that years later Hernández would launch California’s fight against rape on the night shift. At first, Márquez and her co-workers were focused on helping the janitor file a set of wage-and-hour claims with the California Labor Commissioner’s Office against the companies that had forced her to clean movie theaters and other entertainment venues without paying her what she was due.

  After Hernández was raped and turned to Márquez for help, the organization concentrated on helping the janitor out of crisis. Emboldened by the support of the Maintenance Cooperation Trust Fund, Hernández decided to seek justice through official channels. She filed a police report and a sexual harassment lawsuit against the cleaning company she had worked for and the supervisor who she said had raped her.