January 18, 2018
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‘Regardless of What the President Says, the Laws Are Still There’

By Janine Jackson



Janine Jackson interviewed Jennifer Reisch about women in the workplace for the April 7, 2017, episode of CounterSpin. This is a lightly edited transcript.

Jennifer Reisch

Jennifer Reisch: “What we need to do is stay strong and stay united, and actually support one another and support women in taking some forms of collective action…because fighting these things alone is always more difficult than fighting them as one.”

Janine Jackson: That Donald Trump defended Fox News host Bill O’Reilly in the wake of revelations that the network has paid millions in settlements for sexual harassment lawsuits lodged against him is the least surprising news ever, though he did give it the Trump touch by saying he didn’t believe the women, and Bill’s a good guy, days after declaring April Sexual Harassment Awareness and Prevention Month.

Media could use the O’Reilly story to shed light on workplace harassment, and while they’re at it, the range of inequities and indignities that continue to confront women in the workplace. They might start by asking what sexual harassment has to do with another April event, Equal Pay Day. Jennifer Reisch is legal director at the group Equal Rights Advocates. She joins us now by phone from San Francisco. Welcome to CounterSpin, Jennifer Reisch.

Jennifer Reisch: Thank you for having me.

JJ: Well, this is a nexus of issues, but let’s start with pay. Equal Pay Day, when women’s earnings “catch up” to men’s of the previous year, is a symbol to call attention to the gender pay gap. But equal pay is the sort of thing that’s hard to oppose. So it seems like what people do is say—like this Forbes columnist I found—that those who complain about inequity “overlook that sex-based pay discrimination is already illegal.” What’s the misunderstanding at work there, and what do you see as the value of exercises like Equal Pay Day?

JR: Well, as you pointed out, Janine, Equal Pay Day is of course a day that is marked but not celebrated, because it always is a reminder of how many days women are still working into this year just to catch up with the earnings of their full-time male counterparts. And I think there’s just a widespread misperception and misunderstanding of what the gender pay gap is really about, and a failure to recognize that it is the result, not only of continuing discrimination and the results of implicit and explicit bias against women in the workplace, but also the result of a lot of mechanisms and things going on in the labor market that result in women being underpaid. And they are pernicious and they are often part of the way we see things as just being the way they are.

So occupational gender segregation, for example, is a big contributor to the gender wage gap, and that’s not the result of any specific employer necessarily making a discriminatory decision. It’s really about the result of many, many years, and for many different reasons, women, first of all, ending up in jobs that pay less and, on the flip side, the jobs where women work being the lowest-paid jobs in our economy.

And so we both undervalue the work that women do, and in fact we can see that when women enter a profession, the more women enter a profession or field, the lower the pay of that field becomes. So there is clearly still a long way we have to go to get to a place where women and men are truly experiencing equal opportunity in employment, and where they’re being paid equally for doing substantially equal work.

The other thing is that, just because something is illegal doesn’t mean it doesn’t happen. That’s sort of the most obvious thing as well, is that we see with sexual harassment, which has been considered an unlawful form of sex discrimination since the early ’80s, and was outlawed really by Title VII, which was passed in 1964, it is still the No. 1 reason why people call Equal Rights Advocates for help on our toll-free help line, and it is one of the most common reasons why people file discrimination charges, is based on sexual harassment-related issues. Just because something has been declared unlawful certainly doesn’t mean that it’s been eliminated. In fact, we’ve seen, I think, a real upswing in a lot of these issues coming to the fore over the last few months.

JJ: Let’s move on to that. In his defense of Fox head Roger Ailes, with his more than 20 allegations of sexual harassment, Donald Trump said that his daughter Ivanka “would find another career or find another company” if she faced any harassment. And his son Eric Trump said Ivanka “wouldn’t allow herself to be subjected” to harassment. Now, besides ignorant, that’s revelatory in the implied assumption that a woman should and can just quit a job where she’s harassed. And it points to harassment as an economic concern, but that’s rarely how it’s presented.

JR: You’re absolutely right, Janine, and it is an economic concern. The thing that really appalls me about those comments, too, is that of course it places the blame for harassing conduct on the women who are subjected to it, and puts the onus of change on individual women, as opposed to on the institutions and employers and individuals that are perpetrating the harassment, and creating cultures inside those environments where men are given a free pass to harass women, and where women are taught that tolerating that harassment is the price of a paycheck.

Ivanka Trump is worth almost a billion dollars. She doesn’t have to stay at any job. That’s not the reality for the 99.999 percent of us who do not have that kind of wealth, and it’s really the wrong question or wrong way to approach the entire issue. And women who face sexual harassment are often in a position where they are trying to support themselves and their family; they are living paycheck to paycheck, and they cannot afford to risk losing even an hour of pay, let alone being out of work all together for any period of time or they are staring down the barrel of a gun that could really threaten their ability to provide food and shelter for their family.

And so to make the onus and burden of having to somehow respond to that kind of behavior, that unlawful behavior and misuse and abuse of authority like that on the women who are abused is the worst kind of hypocrisy and victim-blaming imaginable. And it really reflects a fundamentally sexist view of women as those who should expect to be acted upon and should have to accommodate the objectification as a condition of being in the workplace at all. And that’s just not acceptable, and it’s also not in line with what our civil rights laws say.

JJ: It is, though, the feeling or the sentiment or belief of the president of the United States. So I just want to ask you, finally, what can you tell us about the direction of things under Donald Trump on this set of issues? Because it certainly — I mean, these comments are the tip of the iceberg as we understand, but, you know, we know we have folks fighting in the opposite direction. So what are the sort of preeminent concerns that you have about moves that Trump has made or may make?

JR: Well, of course Trump has rescinded several executive orders that were providing for some additional protections and strengthening existing protections against sexual harassment as well as against wage theft and other common—that affect many, many millions of women workers every year, including the executive order that he signed revoking the Fair Pay and Safe Workplaces order just last week.

And while we, those of us who are on the side of workers and who have been prepared and have been standing up for folks for the last decades, we’re still here and we’re not going anywhere. We do know that we have a really tough fight ahead, because we have a president who really doesn’t seem to understand what the laws are or why they’re important, and has put into positions of power, in the Department of Labor and Department of Education, individuals who also don’t seem to prioritize the enforcement of the rights under the laws that their agencies are responsible for enforcing.

On the other hand, however, we still have remedies available, we still have ways for people to come forward, and I think now more than ever, what’s really becoming clear is that what we need to do is stay strong and stay united, and actually support one another and support women in taking some forms of collective action. And collective meaning just coming together, even just as a pair or as a small group, because fighting these things alone is always more difficult than fighting them as one.

And so I think that it points to the need for us to stay vigilant on our defense. Even though, for example, President Trump has rescinded the executive order that would have prohibited federal contractors from discriminating against employees on the basis of their sexual orientation, we have the Seventh Circuit and other circuits now considering decisions that would expand the scope of and declare that our existing civil rights law, Title VII, actually does prohibit discrimination based on sexual orientation, because it already says that you can’t discriminate based on sex. And so the implications of those court decisions could be really, really broad and also could provide additional protection and at least a line of defense against any changes to federal policy or enforcement priorities that we might see coming down the pike

No doubt about it, we have a really tough road ahead if we want to preserve the rights that we have and also ensure that women are not intimidated into silence when it comes to bringing these issues up. But I think that the courage of people in positions of high visibility and high authority, I think are really important to encouraging women who are not in those kinds of positions of power and visibility to band together, to speak up, and  to know that regardless of what the president says, the laws are still there, and we, the advocates who represent women and working people, are still here and we’re going to keep fighting.

JJ: We’ve been speaking with Jennifer Reisch, legal director at the group Equal Rights Advocates. Find them online at EqualRights.org. Jennifer Reisch, thank you so much for joining us this week on CounterSpin.

JR: Thank you, Janine.

- Originally appeared at fair.org