A Strike against Sexual Harassment

Nancy Lindisfarne and Jonathan Neale

Graduate student teaching assistants at Columbia University in New York are on strike to win fair arbitration of grievances over sexual harassment. The issues at stake have important implications for trade unionists and feminists all over the world. Our purpose here is to pass on ideas for what you can do in your union. We also make some suggestions for what activists can do in our union in Britain, UCU. 

The strikers are graduate students who do much of the teaching for a low wage. They have organized themselves into a branch of the United Auto Workers. Two weeks ago they went on strike.

There are three main issues. One is union recognition. The second is increases in wages, childcare supplements and health insurance. The third is independent arbitration of grievances over sexual harassment and discrimination of all kinds. The third is the sticking point in negotiations.

Zoe Dostal, a graduate student, reported on Twitter from the negotiations on March 16, at the beginning of the strike. To make sense of this you need to know that a firm of private lawyers are negotiating for the university. This is normal in US industrial relations:

‘Columbia lawyers refused to consider third party arbitration for cases of discrimination and harassment. When pressed to explain why, CU insisted that in-house investigations and disciplinary action are fair and free of bias. When pressed further, the CU lawyers said, “it would be too COSTLY for the university, and not financially”.’

The key words there are ‘COSTLY, and not financially.’ We come back to what the lawyer meant later.

To put the issue clearly, the union wants to stop sexual harassment. The university management want to do what they have always done and sweep cases under the carpet.

The Columbia strikers have not come to this moment by accident. In the last four years a whole range of social movements and protests have swept the United States. Those movements, in turn, have given heart and courage to labour activism and strikes across many industries.

This strike for independent arbitration over harassment and discrimination is a moment jn history when Black Lives Matter,  MeToo and the labour insurgency come together.

In this respect, the intersection is particularly American. If you want to think about how to apply the ideas of the Columbia strikers in your union, you need to understand exactly what the strikers are asking for.

There are two kinds of arbitration in American industrial relations. One is independent arbitration, which has been an established feature of unionised workplaces since the 1940s. The second is arbitration by the employer.

Independent Arbitration

Independent arbitration springs from a peculiar feature of union life in the US. Unions typically sign contracts for three to five years. These contracts are very detailed, running to hundreds of pages, and cover working practices in many workplaces. In signing the contract, the union enters into an agreement that there will be no local strikes over grievances for the next five years. This agreement is legally binding.

This is very different from union relations in many other countries, where local representative and union shops can and do take action over local grievances. Of course that still happens in the US too – it is just more difficult. But what the US union typically gets in return for agreeing not to strike is an independent arbitration procedure.

Under this procedure, either the union or the employer can ask for arbitration in any particular case. Specialists make part or all of their income as arbitrators. Both the union and the employer have to agree to use that particular arbitrator. This disciplines both sides to select fair people.

Crucially, the decision of the independent arbitrator is binding. This is unlike the situation in Britain, where the government funded Advice, Conciliation and Arbitration Service, ACAS, tries to bring employers and workers to a compromise. In the US, independent arbitration definitively settles the case.   

In the US, there are two ways the independent arbitration can proceed. In one, the two sides agree that the arbitrator should look for a compromise. The other is pendulum arbitration, where the independent arbitrator has to come down on one side of the other. In individual grievance cases, pendulum decisions make fairness more likely.

Fairness means the arbitrator should decide the issue on the factual merits. The contract lays down the rules. The arbitrator decides whether the employer or worker followed those rules, and whether there are any mitigating circumstances.

Crucially, an independent arbitrator in a sexual harassment case would decide whether sexual harassment had happened. The standard of proof would be not proof beyond a reasonable doubt, but proof on the balance of the evidence. This is the same standard as that used in civil cases. In theory, it is also the standard used by all employers in all internal disciplinary cases.

Employer Controlled Arbitration

The second kind of arbitration is arbitration by the employer. In 1992, this covered 2 percent of American workers. By 2017 it covered 55% of all US employees. The great majority of these had no union. They were forced to agree to employer-run arbitration when they signed their contract.

Columbia University wants employer arbitration. The Provost, Ira Katznelson, reiterated this position in an email about the strike sent to all staff on March 24.

What the university authorities want specifically, is arbitration by the Office of Equal Opportunity and Affirmative Action (EOAA). That sounds good, until you realise that the office is part of the management of the university.

As the union points out in response to the Provost,

In arbitration, the union would have access to the evidence. In EOAA appeals, there is no hearing, no testimony, used to inform the Appeal Officer about the case… You cannot contest the facts or the evidence… Complainants are not allowed to record their interviews with investigators, they are not provided with all the evidence in the case used to make determinations, they are not provided with the investigative report, and they can only write five pages double spaced to establish facts, relevance, and make arguments in their respect for an appeal.

Those provisions are what will enable the management to sweep cases under the carpet.

COSTLY?

Let’s go back to the lawyer for the private law firm hired by the university who said what the union wanted would be ‘too COSTLY, and not financially.’ What did that mean?

First, this was a lawyer from a very expensive New York firm. Such firms have a great deal of experience handling sexual harassment complaints on behalf of employers. Their standard operating practice is to make the complainant leave the job and sign a nondisclosure agreement in return for a cash payment.

Almost always the abused person has to leave her job. That is why people fear that taking out a grievance will ruin their career. Only very rarely does the harasser have to leave.

This MO does not save the employer money. If anything, the employer has to pay more money in settlements to preserve the cover-up. But listen to what the lawyer for Columbia said to the union negotiators: ‘It would be costly, but not financially.’

What he (or she) meant was that the university would pay a cost in two ways for an honest approach to sexual harassment. First, the university would be exposed as the home of a good deal of sexual harassment. This might deter some women applicants.

Second, punishing and limiting harassment would also be likely to alienate senior men in law firms, hedge funds, brokerages, hospitals and other organisations. Those men hire Columbia graduates – it is an elite university – and they contribute to its fundraising.

Third, such a change in procedure, were it to spread widely, would make sexual harassment and rape by powerful and wealthy men far less likely.

As we have argued elsewhere, most men in those positions are not harassers. But across the board, almost all male and female senior managers protect the men who do behave that way.

We have written at length elsewhere about why this should be so, and how it works to hold in place class and gender inequality in capitalism.

But the key point here is that coverups are of central importance to Columbia’s management. And the strikers at Columbia are pioneering a new way of fighting coverups. And their method could be applied much more widely.

Racial and Other Discriminations

In this article we have concentrated on independent arbitration in cases of sexual harassment. The dispute at Columbia centers on sexual harassment, because that is the issue most important to the employer right now. But the Columbia strikers are also demanding independent arbitration for cases of discrimination involving gender, race, disability, sexuality and other causes. This is of great importance to the strikers.

But if we are to follow the Columbia example, we need to bear in mind the importance of including discrimination as well as harassment in any demands we make.. In the long run it will make an enormous difference.

Global Implications

Unions representatives and members at many other workplaces and in many other countries often find themselves facing similar routine coverups of sexual harassment and victimization of whistle-blowers. We think that the simple idea of independent arbitration could be written into collective bargaining agreements in many places.

Let’s take the example of our own union in the UK. We are both retired members of the University and College Union. The UCU organizes lecturers, researchers, teaching assistants and related trades in colleges and universities. Between us, we have considerable experience of such coverups.

As in the United States, in colleges and universities sexual harassment is particularly common between permanent staff and postgraduate students. Many of those postgraduates are also teaching assistants, and the union is trying to recruit all of them. Few things are more likely to encourage recruitment than protection from predation.

Independent arbitration would also avoid a great deal of grief and bad faith between colleagues of the kind that occurs when heads of departments are forced to cover up.

Such protection would not only build the union. It would be an advance for feminism, human decency and equality across the board.

In the long run, routine independent arbitration would not mean endlessly expensive cases. University HR departments, knowing that an appeal to arbitration was always possible, would learn to handle cases in quite a different way.

We do not imagine that such change in bargaining procedures would be straightforward. UK managements would probably be just as resistant to independent arbitration as at Columbia. Moreover, because the customs of industrial relations in Britain have treated arbitration differently, our demands would have to be drawn up in detail, and with some care.

But change must come. Routine harassment has been accepted across British society for far too long.

We concentrate here on UCU in the UK. But we do not see why the situation would be very different among rail workers or hospital workers, or in Ireland, Brazil or India. Whether the strikers win or lose at Columbia, let’s hope that their example can be generalized very widely over the next few years.

And you can donate to the Columbia strike fund here.

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