Unions hold themselves out as protecting workers in a number of industries -- from actors to actuaries. They represent musicians and tradespeople, as well as municipal staff and employees of large corporations. When sexual harassment happens in a unionized workplace, it can raise questions about whose side the union is really on, and about the role of unions in sexual harassment claims.
In this blog post I will discuss what role unions play in sexual harassment claims by unionized workers. I will discuss whether you need to file a complaint with your union rep, and why you might find yourself facing off against unions in sexual harassment claims.
When you are facing sexual harassment at work, you can use Title VII of the federal Civil Rights Act as a shield. Like many states’ laws, Title VII makes it illegal for your employer to make employment decisions (like hiring, promotions, salary adjustments, or shift assignments, among others) based on an employee’s willingness to respond to a supervisor’s sexual advances. It also requires employers to respond to complaints of sexual harassment by supervisors, between coworkers, or involving customers or clients.
Title VII doesn’t directly apply to unions. The protections offered under the statute depend on the existence of an employment relationship. While the New York State Human Rights Act defines the scope of protection more broadly, under federal anti-discrimination laws a union representative has no duty to review or respond to sexual harassment claims.
That said, many unions explicitly take on the duty to respond to reports of sexual harassment by coworkers in their Codes of Conduct or collective bargaining agreements. In those cases, your union can sometimes actually slow down your ability to go to court over sexual harassment claims. If your company’s internal processes require a thorough union grievance process, you may have to finish all those appeals before you are eligible to file a claim with the Equal Employment Opportunity Commission or in federal court.
Many unionized employees are surprised to learn that the traditional union relationship does not include help when you are filing sexual harassment claims. In fact, at its most straight-forward, it is the union’s job to protect your harasser’s employment. According to a recent New York Times article on the issue:
“The old union way was just defend the member at all costs, fight the disciplinary action,” said Leonard Egert, the national executive director of the guild, also known as AGMA.
That means when your employer is quick to react to allegations of abuse, by suspending or firing the employee in question, the unions can sometimes be legally required to help them fight to get their jobs back.
That’s what happened at the New York City Ballet when Alexandra Waterbury, a former student at the School of American Ballet, raised sexual harassment claims against fellow dancer Amar Ramasar, a star within the company. She reported that her ex-boyfriend had shared texts containing sexually explicit photos and videos of her without her consent. Mr. Ramasar was also accused of sharing nude photos of another dancer with Ms. Waterbury’s ex-boyfriend. In response to the allegations, the Ballet suspended Ramasar and another dancer named in Ms. Waterbury’s lawsuit. But then it learned that several of its dancers would be uncomfortable if the men returned, so the company fired them.
That’s where the union came in. The AGMA represented Ramasar and the other dancer in defending against employment termination, saying that the men had not been given an opportunity to defend themselves against the claims. It said firing the two men was too severe a punishment. Eventually, a private arbitrator agreed and Ramasar was reinstated (the other dancer chose not to return to the company).
Several unions are adjusting their approach to sexual harassment claims, particularly in the arts and entertainment industries. Many have adopted new codes of conduct that provide for the right to a safe, harassment-free workplace, and create ways for victims to file sexual assault complaints with the union directly.
But doing so could create a strange situation of pitting your union against itself in its duty to represent all the company’s employees. If you file sexual harassment claims with your union, and it takes on the responsibility to represent you in that complaint, that doesn’t eliminate its duty to your coworker who harassed you. Some unions are having to assign different staff members to each side of the case. In those instances, you could end up with the union working against itself and its own ends.
That’s why, even if you are entitled to union representation, you may want to hire a private attorney to represent your sexual harassment claims to your employer. If you rely on the union representative in a claim against a coworker, it may not be entirely clear who they are representing, and you may find the resolution leaves you wanting something more.
At Eisenberg & Baum, LLP, our experienced gender discrimination and sexual harassment attorneys work with employees in unions in New York and across the country. We know how to make the most of union grievance processes, and when you can work around them to get resolution faster. Contact us to schedule a consultation at our office in New York City, or over the phone.