How workplace abuse law hasn’t kept up with #MeToo and #BlackLivesMatter

Me Too hashtag from cube letters, anti sexual harassment social media campaign

In recent years, we’ve seen thousands take to the streets to defend women’s rights in women’s marches around the globe. We’ve seen our social media threads fill up with the hashtag #MeToo, standing up to sexual harassment and assault. We’ve seen protest after protest demanding that #BlackLivesMatter.

We’ve seen hundreds of thousands stand up to abuse of power. Yet the law hasn’t kept up.

Upwards of one in three workers will experience abuse at work according to the Workplace Bullying Institute. Women, Hispanics, and African-Americans are the most likely to be targeted.

The Civil Rights Act of 1964 protects these groups from discrimination on the basis of race, color, religion, sex, or national origin. So why are these groups more likely to endure verbal abuse, sabotage, and other types of threatening, intimidating, and humiliating behavior?

While important legislation, this act only protects those who can connect their membership in the group to the abuse. So those workers whose abusers are in the same protected class may be out of luck, even if the abuse comes from unconscious bias. In the past five years, the Commonwealth of Massachusetts has paid out more than $1.8 million in abuse cases in which plantiffs proved the abuse came from their membership in a protected class. Meanwhile, those who received similar mistreatment but couldn’t prove discrimination — even if they’re in a protected class — weren’t afforded the same justice.

It’s time to get with the times

The law is inadequate in protecting those taking to the streets from abuse of power. But the solution is simple: pass workplace anti-abuse legislation. The law would get at the root of discrimination law, which is to protect workers from mistreatment.

In On the Basis of Sex, Felicity Jones delivers Ruth Bader Ginsburg’s powerful closing arguments in her first Supreme Court case to illustrate the outdated laws. In this case, Ginsburg defended Charles Moritz, who did not benefit from the same tax code as women for caring for his aging mother while working outside the home:

A hundred years ago, Myra Bradwell wanted to be a lawyer. She had fulfilled the requirements for the Illinois bar, but wasn’t allowed to practice because she was a woman. An injustice she asked the Supreme Court to correct. Illinois was so confident of victory, they didn’t even send a lawyer to argue their side. They were right. She lost. That was the first time someone went to court to challenge his or her prescribed gender role. A hundred years ago. Radical social change?

Sixty-five years ago. When women in Oregon wanted to work overtime, and make more money, as men could. The Court looked to the precedent in Bradwell. And said no. And then there were two precedents. Then three. Then four. And on. And on. You can draw a direct line from Myra Bradwell to Gwendolyn Hoyt — told ten years ago she was not entitled to a jury of her peers.

That is the legacy the Government asks you to uphold today. You are being urged to protect the culture and traditions and morality of an America that no longer exists.

A generation ago, my students would have been arrested for indecency wearing the clothes that they do.

Sixty-five years ago, it would have been unimaginable that my daughter would aspire to a career. And a hundred years ago. I would not have had the right to stand before you.

We are not asking you to change the country. That’s already happened without any Court’s permission. We are asking you to protect the right
of the country to change.

There are a hundred and seventy-eight federal laws that differentiate on the basis of sex. Count them. The Government did the favor of compiling them for you. And while you’re at it, I urge you to read them. They are obstacles to our children’s aspirations.

I’m asking you to set a new precedent. As courts have done before when the law is outdated.

Our sons and daughters are barred by law from opportunities based on
assumptions about their abilities. How will they ever disprove these
assumptions, if laws like Section 214 are allowed to stand?

That is why we must take these laws on. One-by-one. For as long as it
takes. For their sakes.

And you have the power to set the precedent that will get us started.
You can right this wrong, by — The principle purpose of Section 214 is not to protect women nor to discriminate against men. It is to provide caregivers the opportunity to work outside the home. Therefore — as the Supreme Court did in Levy v. Louisiana — this court should fix the law in the way most in line with the legislative intent. Extend the deduction to never-married men. Help all caregivers equally.

Our client, Charles Moritz, was well raised to be the sort of man we should all hope our sons will become. He deserves our admiration. Not only has he accepted the burden of caring for his… very strong-willed mother — when no one would expect it of him. But in doing so, he has surpassed the limitations the rest of us — and our laws — try to force upon him. We rest our case on our briefs and argument, and ask that you reverse the Tax Court’s decision.

— Ruth Bader Ginsburg

In the case of workplace abuse protections, there’s a major gap in the law. Those in protected classes have extremely insufficient protections, leaving those in power to abuse that power and to keep their positions of power — in every industry.

It’s no wonder that women, Hispanics, and African-Americans occupy fewer positions of power when those in power write the rules — and ignore proposed rules — to keep themselves in power.

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