last updated September 20, 2005
Many trade union organizations agree that collective bargaining of employment contracts is a vital tool in eliminating discrimination. The ILO states in Gender Promotion Programme (ILO), Promoting Gender Equality – A Resource Kit for Trade Unions, August 2001, Booklet 2; http://www.ilo.org/public/english/employment/gems/eeo/tu/tu_toc.htm. “[i]n many countries, the key means of action promoting gender equality in the world of work is through collective bargaining – as a process of negotiation between workers’ representatives and employers.”
The ILO has prepared a set of excellent materials entitled, “Promoting Gender Equality – A Resource Kit for Trade Unions.” That resource kit, found on http://www.ilo.org/public/english/employment/gems/eeo/tu/tu_toc.htm, includes booklets on “Promoting gender equality within unions” and “Promoting gender equality through collective bargaining.”
An example of a trade union’s negotiation of sexual harassment issues, found on European Industrial Relations Observatory On-Line, “Zanussi Adopts Code Of Conduct To Prevent Sexual Harassment,” 1998; http://www.eiro.eurofound.ie/1998/03/InBrief/IT9803154N.html; also available in Italian; http://www.eiro.eurofound.ie/1998/03/InBrief/IT9803154N.html, occurred at the Zanussi group in Italy, where management and trade unions negotiated Italy’s first code of conduct to combat sexual harassment.
A review of European collective bargaining agreements provides the following insights. Sexual harassment is a recent issue in collective bargaining. Because it undermines attempts to improve equal opportunities in other areas, sexual harassment must be dealt within the context of the working environment and corporate culture. It is also important that the working environment not leave any space for individuals to violate others’ dignity and right to live their own lives.
When shaping sexual harassment policies, both definitions and methods of dealing with sexual harassment are vital. It is important that agreements define sexual harassment from the perception of the harassed person. Moreover, “[i]nnovative agreements emphasize that sexual harassment runs counter to the organization’s culture, is a threat to the working atmosphere and can undermine all efforts and improvements on equal opportunities.”
Additionally, according to Anni Weiler, “Equal Opportunities and Collective Bargaining; European Experiences,” Comparative Labor Law and Policy Journal,” 2000, 591, 601-03, the European
[a]greements stress measures on avoidance of sexual harassment, measures and procedures on occurrence of sexual harassment and protection of harassed persons. Most of the agreements included detailed provisions on preventive measures, procedures on complaints, rights, protection and support of harassed employees, as well as sanctions for those found guilty of harassment, measures to prevent reoccurrence and supportive initiatives, such as special training programs designed to raise awareness of the issue. The provisions on sanctions define sexual harassment as a violation of contract or a breach of official duties and include disciplinary sanctions, transfer, dismissal and special sanctions for reprisal and emphasize a zero-tolerance.
In their book, “Stopping Sexual Harassment, A Handbook for Union and Workplace Activities,” authors Camille Colatosi and Elissa Karg provide suggestions and examples of language from effective collective bargaining agreements on sexual harassment. (Camille Colatosi and Elissa Karg, Stopping Sexual Harassment, A Handbook for Union and Workplace Activities,” 1992, 32.) They note that it is important to have an anti-discrimination/equal application clause in the contract. For example:
The Company and the Union agree that they will not discriminate against any employee with regard to race, color, religion, age, sex or national origin. This includes but is not limited to all phases of employment, benefits, hiring, placement, rates of pay, upgrading, transfer, layoff, demotion, and termination. The parties further agree that they will abide by all the requirements of [the U.S.] Title VII of the Civil Rights Act of 1964.
Id. at 32 (citing Agreement between ACTWU and Cone Mills Corporation).
Collective bargaining agreements may or may not contain specific language against sexual harassment; instead they may only discuss discrimination. It is preferable to have specific language against sexual harassment and not just sex discrimination. The more specific the language, the easier it will be for victims to win sexual harassment grievances. If the contract language on sexual harassment is not specific, employers and arbiters may not be able to accept a sexual harassment grievance.
It may also be advisable to try to negotiate an enforcement clause in the sexual harassment provision of the contract, such as having the employer and the union meet to review compliance and work to achieve compliance. If they cannot mutually agree, they may invoke the arbitration process.
The following points are suggested to use when bargaining for sexual harassment language:
? Establish the legitimacy of sexual harassment as grievable and a part of the fair employment practices procedure.
? Win immediate relief for the woman. And,
? Reiterate management policy to not tolerate harassment. This can be done through statements to supervisors and workers.
Additionally, include language on how sexual harassment grievances will be handled. An example is a procedure that requires that grievances alleging discrimination be filed in writing to the Head of the Agency within thirty days of the date the grievant or Union knows or should have known of the alleged grievance. The Head then has fifteen has to respond. If not resolved, the union should submit the grievance to the Executive Department to resolve within fifteen days. If the grievance is still not resolved, the grievant or the union may go to arbitration or file with the government agency handling discrimination claims. Id. at 33 (citing a contract between a the ACTWU and the Clothing Manufacturers Association).
Because of the great need for confidentiality in sexual harassment cases, the union might want to consider designating someone to be the union contact for sexual harassment complaints to work with union stewards.
Unions historically have employed various approaches to accomplish their goals. For example, in 1998 the U.S. UFW (United Farm Workers) organized marches in various cities across the country to demand employment rights for California’s 20,000 strawberry workers. Two of the issues included in their campaign were sexual harassment and sex discrimination. Three weeks later, the largest organic strawberry grower signed a contract with United Farm Workers. Lisa Bennett-Haigney, “Activists March for Strawberry Workers Rights: Workers Sign First Union Contract,” Summer 1998; www.now.org/nnt/05-98/berries.html.
Non-unionized employers also should work to end sexual harassment in the workplace. For example, the U.S. National Organization of Women (NOW) created a Women-Friendly Workplace Pledge, found on http://www.now.org/issues/wfw/empledge.html, that it encourages employers to sign to keep workplaces free of discrimination and harassment, including sexual harassment.
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