Not long before a deluge of sexual harassment claims engulfed Capitol Hill, congressional Republicans and President Donald Trump quietly repealed safeguards to protect hundreds of thousands of American workers from such harassment.
Their target was an August 2016 regulation issued by the Obama Labor Department that required businesses to disclose certain labor violations — including sexual harassment — whenever they bid on large federal contracts.
The vote last year is especially relevant now that Congress, under immense public pressure, is weighing legislation to outlaw the very same secrecy agreements that it voted to keep legal less than a year ago.
The regulation in question was one of 14 reversed by congressional resolutions that Trump signed into law last year as part of his much-touted war against “job-killing regulations.” Besides requiring disclosure, the rule forbade the biggest federal contractors from forcing workers to take their grievances to arbitration, where employees are likelier to lose, than in the courts; in addition, the private proceedings are typically kept secret.
Mandatory arbitration clauses played a key role in keeping secret the sexual harassment settlements that piled up over decades at Fox News and elsewhere. Gretchen Carlson, who in 2016 settled a sexual harassment complaint against the late Fox News chairman Roger Ailes for a reported $20 million, has made the elimination of mandatory arbitration clauses the centerpiece of a campaign against sexual harassment.
“Certainly it leaves a lot of workers vulnerable to sexual harassment because they have lost an essential tool to challenge sexual harassment,” said Thea Lee, president of the Economic Policy Institute, a left-leaning think tank. “Imagine yourself in that situation. If you’re a woman who’s in a job and experiencing unwanted sexual harassment, you no longer have the ability to sue because you gave that away.”
With the #MeToo movement in full swing, Congress is now preparing a bipartisan sexual harassment bill, S. 2203 (115), that would eliminate mandatory arbitration in sexual harassment cases — not just for large federal contractors but for all businesses. The bill’s chief Republican sponsor, Sen. Lindsey Graham (R.-S.C.), voted last winter to do precisely the opposite — by killing the contractor rule.
The earlier Fair Pay and Safe Workplaces rule followed a 2014 executive order from former President Barack Obama. It was predicated on the notion that the federal government had an obligation to consider whether a private company had a record of “serious, repeated, willful and/or pervasive” labor violations before awarding it a large contract. Before the rule, such background checks were not required.
Business groups loathed the regulation, renaming it the “Blacklist Rule” and arguing that it was so broadly worded that potential contractors could be blackballed based on mere allegations. “Even the best-intentioned employers have run afoul of these laws in isolated circumstances,” an attorney for the U.S. Chamber of Commerce told Congress before the final rule came out, “or in situations where the rules remain ill-defined.”
One day before the regulation was to take effect in October 2016, a federal judge appointed by former President George W. Bush issued a preliminary injunction against it, saying it “departed from Congress’s explicit instructions dictating how violations of the labor law statutes are to be addressed.” Congress subsequently repealed the rule under the Congressional Review Act, and in late March, Trump signed the repeal into law.
Six months later, a New York Times expose about Hollywood producer Harvey Weinstein touched off a torrent of sexual harassment allegations against powerful men in entertainment, the news media, and politics. The scandal prompted more resignations from Congress within a concentrated period of time, the Washington Post noted, than since the start of the Civil War.
Republican lawmakers didn’t vote to repeal the contractor rule last winter to cover up sexual harassment, of course, and that isn’t why Trump signed the repeal. The topic scarcely came up at the time. But the legislation, advocates and former government officials say, left contract workers more susceptible to sexual harassment. The vote is especially relevant now that Congress, under immense public pressure, is weighing legislation to outlaw the very same secrecy agreements that it voted to keep legal less than a year ago.
“I can tell you without a doubt,” said Ben Olinsky, a special assistant to Obama on labor policy who helped write the order. “This provision would have brought significant new accountability to federal contractors with sexual harassment and assault.”
The White House denied fervently that repeal of the Fair Pay and Safe Workplaces rule enabled sexual harassment.
“The president has kept his promises to eliminate job-killing regulations, and rescinding the Obama Administration’s redundant ‘blacklisting’ executive order was just another example of that,” deputy White House press secretary Hogan Gidley said in a statement. “Sexual harassment is illegal in the workplace and that prohibition continues to be enforced by the EEOC.”
The contractor rule targeted a mammoth industry that keeps on growing while the federal workforce remains about the same size it was 50 years ago. Since 1993, the amount that the federal government spends annually on contracting has ballooned from $182 billion to more than $400 billion — an amount larger than Maryland’s entire economy. The types of contractor jobs vary from cafeteria workers to engineers who design state-of-the-art weapons.
Government contract employees are more vulnerable to sexual harassment than other employees, worker advocates say. That’s partly because they’re much likelier than other private-sector employees to switch work sites every few weeks or months, making it more difficult for them to develop a support network among coworkers. A 2016 EEOC report on sexual harassment found that victims typically told trusted colleagues and friends before they took any formal action. Even then, most never filed a complaint.
By far, the largest share of federal contracting dollars — 62 percent — pays for defense; the Pentagon spends more money on contractors than all other federal agencies combined. A 2009 change spearheaded by Sen. Al Franken (D.-Minn.) — himself the target of sexual harassment allegations that prompted him to resign from Congress — bars defense contractors from imposing mandatory arbitration for sexual harassment claims.
But defense contract employees, experts say, remain especially vulnerable to sexual harassment. The frequent presence of classified information at the work site can make it difficult, and sometimes impossible, for private attorneys to gather even the most basic documentary evidence to support a client’s allegations.
Consider an employee subjected to lewd email comments, said Kate Kimpel, a Washington-based attorney who represents sexual harassment victims. Now imagine that the email chain in question is accessible only to people with a certain security clearance. The government might well argue, Kimpel said, that it must be kept secret.
Geography can also can play a role, with many defense contractors operating in remote regions of the world with little oversight. Then there’s the male-dominated nature of defense work generally, with a pipeline coming straight out of military service.
“It is an area that is fertile ground for allegations,” said Michael Mutek, a contract attorney in Washington who previously was Raytheon’s vice president and general counsel for intelligence, information and services. “You have a lot of military, and then you have a lot of younger people coming in. I’ve had to chastise many people and fire them because they just didn’t get it.”
The Goverment Accountability Office has periodically investigated workplace violations among federal contractors, and discovered they are frequent. In 1995, GAO found that the government awarded $23 billion in contract dollars to companies that violated that National Labor Relations Act, the law that governs union organizing. A year later, GAO found that the government awarded $38 billion in contract dollars to companies fined by the Occupational Safety and Health Administration. In 2010, GAO identified 20 federal contractors that owed $80 million in back wages to workers.
These statistics caught the attention of then- Sen. Tom Harkin (D-Iowa), who chaired the Senate HELP Committee, which oversees labor issues. In 2013, he directed his staff to compile a report federal contractors that violated federal law.
“What we had in mind was to make federal contracts basically the same as the federal government,” said Harkin, who left Congress in 2015. “To make sure when violations occur, especially workplace safety, they be disclosed.” Obama’s 2014 executive order, which required applicants for federal contracts exceeding $500,000 to disclose workplace violations during the previous three years, followed up on those efforts. The violations listed included Title VII, the portion of the Civil Rights Act of 1964 that prohibits discrimination on the basis of sex.
Ten days after Trump was sworn in, Rep. Virginia Foxx (R-N.C.) introduced a resolution in the House to repeal the Fair Pay and Safe Workplaces rule through the Congressional Review Act. The measure cleared both chambers with no Democratic votes in the Senate and only three in the House.
One of the yeses was Graham (R.-S.C.), now a Republican sponsor of the bill to outlaw mandatory arbitration agreements for sexual harassment in all industries.
Asked why Graham voted last winter to repeal a mandatory arbitration ban for federal contractors, Graham spokesman Kevin Bishop said the senator not only favored a broader ban, but helped persuade Microsoft to scrap its own mandatory arbitration policy.
“Senator Graham has already had more success in getting corporate America to change its policies on arbitration and sexual assault,” he wrote in an email, “than President Obama had in eight years.
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