Workplace harassment – How to deal with the changing legal environment and the plight of those impacted

by Bill Balek — Originally published in the April 2019 issue of ISSA

Over the course of the past few years, our nation has been gripped with headline coverage surrounding the prevalence of workplace sexual harassment incidents involving celebrities, politicians, prominent business figures, and other high-profile individuals.

On an almost daily basis, we have been inundated with news stories featuring the rich and famous, using the power of their positions to extract sexual favors from those over whom they exercise authority.

And, while those stories shocked and stunned millions, they largely ignored the plight of those less visible to society: Low-wage workers across the nation, in low-profile industries, who suffer from the same indignities of workplace sexual harassment. In fact, statistics show that the highest incidence of workplace harassment occur in industries that are characterized as having large numbers of low-wage workers, with a disproportionate number of women.

Consequently, over the last year, the #MeToo movement, and the nation’s attention in general, has slowly turned to the plight of the low-wage service worker, including those employed in the cleaning service sector. These workers are uniquely vulnerable to sexual harassment because they are limited by lack of money and education, are often not fluent in English, and may be of questionable immigration status.

This article addresses how we as a nation are beginning to address the plight of these workers, and the affirmative steps employers can take to more effectively reduce, and ultimately eliminate, the incidents of workplace harassment from their places of employment.

Workplace harassment by the numbers

In contrast to the stories run by the popular media, actual data shows that the vast majority of workplace harassment claims occur in industries that are characterized as low-profile, low-wage sectors where power imbalances are often more pronounced, and where fear and reprisals of losing their jobs can deter victims from coming forward.

In fact, much of the current national dialogue has been shaped by a relatively recent analysis of data on sexual harassment charges in the private sector that were filed with the U.S. Equal Employment Opportunity Commission (EEOC) during the past decade. The findings indicate that, while workplace sexual harassment is pervasive and impacts men and women in every industry, the highest percentage of charges occurred in industries with large numbers of low-wage workers, often working in occupations disproportionately held by women. In addition, the findings reveal that:

  • More than 25 percent of sexual harassment charges were filed in industries with a large number of service-sector employees, including many low-wage jobs that have a disproportionate number of female employees.
  • Close to 75 percent of sexual harassment charges include an allegation of retaliation, either upon being filed, or later in an investigation, suggesting that many victims face retribution when they come forward.

Top 5 industries

According to data available from the EEOC, the largest number of workplace harassment claims were found in the accommodation and food services industry, followed by retail trade, manufacturing, health care industries, and the administrative and support waste management and remediation sector. These five industries collectively account for more than 57 percent of all the sexual harassment claims filed.

  • Accommodation and food services: 14.23 percent
  • Retail trade: 13.44 percent
  • Manufacturing: 11.72 percent
  • Health care and social assistance: 11.48 percent
  • Administrative and support, waste management and remediation: 6.92 percent

The category that hits closest to home is the administrative and support waste management and remediation sector. This sector includes in-house custodial staff, as well as the employees of cleaning service contractors, and is estimated to employ more than 2.1 million workers.

In addition, the accommodation and food services sector (which includes hotels, inns, and other hospitality establishments) was ranked as having the greatest incidence of sexual harassment claims filed. This sector includes housekeeping staff at hotels and residential cleaners and is estimated to include more than one million employees.

Custodial staff and cleaning service employees are considered especially vulnerable to harassment because of the nature of the work and the general characteristics of the employee population. A high percentage of janitorial workers do not speak English, many are undocumented, and the majority are female. Additionally, janitorial staff often work at night in isolated environments with little security.

On the legislative radar

The high incidence of sexual harassment in these industries, and in the cleaning service sector in particular, has attracted the attention of state and federal law makers, as well as the unions that represent these service sectors.

State laws and local ordinances

In California, cleaning service workers, with the support of the Service Employees International Union (SEIU), were the driving force behind the Property Service Workers Protection Act that was signed into law in September of 2016. This new law requires cleaning service contractors to provide their custodial staff and supervisors with biennial, in-person sexual harassment training.

The new law’s training requirements go further than California’s existing sexual harassment training law. Currently, supervisors at companies with 50 or more employees must receive this training every other year. The existing law doesn’t require in-person training; instead, it can be done online. The new law requires training for all janitorial employers, regardless of the number of employees, and it requires that the training be done in person. The California law also requires contract cleaners to register with the state’s Labor Commission on an annual basis.

Similarly, in 2017, Oregon janitorial employees, along with worker advocates, including Oregon’s local SEIU, successfully pushed state lawmakers to pass a measure that mirrors the California law. The Oregon measure went into effect on January 1, 2018, and requires contract cleaning companies to register with the state. In addition, contract cleaners must provide their employees with training on sexual harassment, discrimination, and anti-retaliation. The Oregon law does go one step further by providing cleaning service workers with protection from wage theft.

Likewise, housekeepers in the hotel and accommodation industry have also organized, along with local unions such as UNITE HERE. Together they have advocated successfully for the passage of municipal ordinances in major cities like Chicago, Sacramento, and Seattle that, among other things, require hotels to provide housekeepers with panic buttons, ban guests that harass employees, and establish other related health and safety measures.

Moreover, state laws and local initiatives that address workplace harassment in a similar fashion, are expected to flourish across the country in 2019.

Federal attention

Most recently, the powerful U.S. Senate Committee on Health, Education, Labor and Pensions (HELP) has turned its attention to the plight of the low-wage employee and workplace harassment. Under the tutelage of Ranking Minority Member Senator Patty Murray, the Democratic staff of the HELP Committee has studied the issue by reaching out to workers, trade associations (including ISSA), unions, employers, and other stakeholders, to gain a greater understanding of workplace harassment and how it impacts low-wage workers across the nation.

In December 2018, the Democratic staff of the HELP Committee released its report, entitled “…So I Tolerated It”, which declared that “workplace harassment is an epidemic that cannot be ignored.” Furthermore, the HELP report concluded that there is a “serious need for federal action” to “prevent harassment and empower workers to seek and secure justice.”

The HELP report included a variety of recommendations, including legislative action that the report urges Congress to take. Specifically, the report urges Congress to:

  • Strengthen workers’ rights to join unions, bargain collectively, and act together against harassment.
  • Expand protections against workplace harassment to cover workers at small businesses, independent contractors, interns, and similarly situated workers.
  • Expand the universe of workers protected from workplace harassment and discrimination to ensure that LGBTQ workers are protected.
  • Extend the statutes of limitations to bring workplace harassment claims, extending the amount of time by which an employee can file such a lawsuit.
  • Ensure workers have access to legal assistance to bring workplace harassment claims.

The implications of legislative action at the federal, state and local levels, combined with modified union contracts, has far reaching implications for employers in the cleaning service sector.

What employers can do

Forward thinking employers have already instituted internal policies, proactive measures, and training programs for front-line cleaning workers and supervisory personnel for the purpose of preventing workplace sexual harassment. Adopting such policies and measures is a critical first step. However, in today’s workplace environment, experts urge companies to go beyond these fundamental policies and actively implement what many consider to be the best practices in this area as described below:

Employers should train workers, including supervisors, on how to prevent and address harassment and should assess their workplace climates.

  • Employers should conduct live, face-to-face training for their employees that is customized for their workplace, and which addresses the type of behavior that is prohibited, and how workers can alert their employers about potential issues that arise.
  • Employers should have a supervisor-specific training that addresses how to identify risk factors, and appropriately intake a complaint.
  • Employers should include bystander training, unconscious bias training, or other forms of training to enable workers to proactively address inappropriate behavior when it occurs.
  • Training should use the best practices in adult learning and organizational behavior change, not merely designed to reduce the employer’s liability.
  • Employers should assess their workplace climates, including the use of surveys, to better design and implement prevention efforts.
  • Establish a workplace culture that values equal opportunity and does not tolerate discrimination of any kind.

Employers should adopt and implement workplace harassment and discrimination policies and practices based on the proven best practices.

  • Employers should develop and maintain workplace harassment policies that are easy to understand and readily accessible to employees throughout the workplace.
  • The policies should be clearly communicated to workers in terms that they can easily understand, taking into consideration the workers’ primary language and education level.
  • The policies should provide workers with multiple pathways to report harassment, set up a fair and prompt internal investigative process, and explain potential methods of resolving complaints.
  • Lastly, policies should explicitly address how retaliation is prohibited to ensure that workers are aware of their rights and to encourage workers to report.

ISSA and the cleaning industry

ISSA is taking on a more active role in addressing workplace harassment in the cleaning industry service sector. The association has pulled together a senior management team to lead the development and implementation of a plan to reduce the incidents of harassment. While ISSA is still early in the planning process, certain component parts of that plan have already been identified:

  • Development of a suite of comprehensive education and training programs customized for the cleaning industry.
  • Identification and sharing of best practices across the industry.
  • Development of resources, such as sample workplace policies and other tools, to be shared with the industry.
  • Evaluation and review regarding the role standards and certification programs can be used to reduce the incidents of workplace harassment.

ISSA’s Director of Government Affairs, John Nothdurft, will also ensure that the industry has a meaningful voice in the continuing national dialogue on workplace harassment. ISSA’s involvement, and that of the industry in general, is critical, especially as it relates to the consideration and development of new laws, ordinances, and other policy measures that are sure to have a broad and wide impact on members of the cleaning industry.

It is critical that we work together cooperatively as an industry to reduce, and ultimately eliminate, workplace harassment across the industry.

Balek,BillBill Balek is General Counsel for ISSA. He can be reached at

Copyright by ISSA®

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