#MeToo Goes Global: Introducing the #MeToo Treaty

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Posted in: Employment Law

#MeToo and the related fight against workplace harassment and sexual assault are global phenomena. #MeToo and sympathetic campaigns have brought continuing attention to harassing MPs in British Parliament; outed pigs in France and provoked a national debate over the freedom to pester; been reflected in Brazil’s sportscasters’ #DeixaElaTrabalhar, or “Let Her Do Her Job” initiatives; defied government surveillance in China; mirrored ongoing conversations gathered under #BeingFemaleinNigeria; and spurred Muslim women around the world to document abuse experienced while on their Hajj in Saudi Arabia. As civil societies, institutions, and governments experience #MeToo filtered through the lens of local norms and local cultures, social media and traditional journalism have highlighted these distinct efforts. Even in the United States, the unifying efforts of #MeToo have been spurred micro-campaigns aimed at specific sub-cultures and institutions, such as #ChurchToo directed at evangelicals as well as #TimesUp’s subsidiary campaigns specifically for venture capital, advertising, and press. Much of this work aimed at specific communities has been bottom-up just like Tarana Burke’s original #MeToo movement, which focused on women and girls of color in underserved communities the United States.

At the same time that #MeToo has spurred or reinforced local efforts across the globe, an important international effort has been quietly developing a treaty to help ground these and other efforts to combat workplace harassment in the language of human rights and set up a basic regime to provide some top-down guidance on how states should manage these issues. Initial efforts actually pre-date the #MeToo revolution with the relevant group conducting six years of study before deciding on the need for a treaty. While the International Labor Organization (ILO), a special institution of the United Nations, has previously drafted some labor standards on violence and harassment, those standards have been limited to specific groups like those represented in the Indigenous and Tribal Peoples Convention. Other international human rights instruments speak to issues of violence and harassment but do not offer solutions focused on the world of work. That makes the recent presentation of an initial draft treaty on Ending Violence and Harassment in the World of Work against Women and Men a historic event.

The ILO uses a tripartite partner system in which member states, workers, and employer organizations actively debate and draft the content of its standards with equal standing and voice—at least, until it comes to voting, which only states do. So far, the treaty is backed by 79 governments, 177 national union groups and 13 employer groups worldwide, but the United States is very unlikely to ratify. As I have written elsewhere, the United States has largely failed to implement recent(ish) UN human rights oriented treaties such as the Convention on the Elimination of Discrimination against Women and the Convention to Protect Migrant Workers and their Families, though it has led some criminal enforcement oriented treaties such as the UN Convention against Transnational Organized Crime and its Protocol to Prevent, Suppress, and Punish Trafficking in Persons, Especially Women and Children. While the ILO treaty has effectively zero chance of being ratified under a Trump administration, I suspect it would not fare much better under a conventional Democratic or Republican presidency given the veto-gates in the Senate.

Why does ratification matter? Well, for those 59 countries studied by the ILO that had no specific sexual harassment employment laws, ratification may be an important first step in getting such laws on the book and signaling basic support for the treaty’s recognition of the problem. Most of the other countries studied also lacked the comprehensive coverage that the ILO treaty seeks to get states to provide. In this post, I want to provide a quick primer of the treaty’s basic purpose and approach as well as how it may differ from the current U.S. approach.

ILO’s Draft Treaty

First, the ILO drafters steeped the treaty in the language of human rights with an emphasis on the problems faced disproportionately by women. The preamble repeatedly references basic human rights instruments as precursors to the more specific rights enumerated in the treaty itself. The preamble then “recognize[es] the right of everyone to a world of work free from violence and harassment, including gender based violence and harassment” and “recall[s] that violence and harassment in the world of work is a form of human rights violation, is a threat to equal opportunities, is unacceptable and incompatible with decent work.” Amidst this human rights language, the preamble repeatedly acknowledges that violence and harassment disproportionately affect women’s access to and opportunities within the labor market and “recognize[es] that an inclusive, integrated and gender-responsive approach, which tackles underlying causes and risk factors, including gender stereotypes, multiple and intersecting forms of discrimination and unequal gender-based power relations, is essential to ending violence and harassment in the world of work.”

The treaty itself sets out a variety of requirements for member states. Like many human rights treaties, this one provides some basic floors but gives states wide latitude in carrying out the mandates. States must prohibit all forms of violence and harassment in the world of work. States must ensure both provide sanctions for legal violations as well as education, training, and guidance to promote compliance. They must also adopt or strengthen existing enforcement and monitoring and investment mechanisms. Such requirements are obviously a big change for the many countries that have no harassment laws in place, but what about for countries like the United States with a well established set of statutory prohibitions. How does this treaty differ from what the US already has in place?

How the ILA Treaty Differs From Existing US Law

First, the ILO treaty has a much broader definition of worker than Title VII or most state legislation governing employees. Whereas Title VII only governs employers with 15 or more workers, this treaty covers all workers. Similarly, while Title VII mostly governs harassment conducted by supervisors toward subordinates, the ILO treaty itself directly acknowledges that employers and supervisors can also be subject to harassment, a very important inclusion given recent academic work suggesting supervisors may actually experience the most harassment in American workplaces.

Second, the ILO treaty has a much broader understanding of violence and harassment in the world of work. As my colleague Suja Thomas and her co-author Sandra Sperino have pointed out, most domestic courts continue to narrow the behavior that will constitute a Title VII claim, whereas the ILO treaty invites an extremely capacious understanding. While Title VII defines harassment as either quid pro quo, in which an employee’s acceptance or rejection of unwelcome sexual conduct is the basis for certain employment actions, or a hostile work environment, in which the harassment was based on sex, so severe or pervasive as to alter the terms or conditions of employment and create an abusive working environment. In contrast, the ILO treaty refers to violence and harassment in the world of work which includes “a range of unacceptable behaviours and practices, or threats thereof, whether a single occurrence or repeated, that aim at or result in or are likely to result in physical, psychological, sexual or economic harm.” Of course, the actual interpretation of the ILO’s requirements and the national implementing legislation will also be up to the courts, but perhaps its starting point of a much lower threshold for violations will encourage courts to interpret its protections more generously.

Relatedly, the ILO’s emphasis on gender-based violence and harassment also provides a much more wide-ranging vision than Title VII. As some might know, Title VII did not originally include sex discrimination, much less sexual harassment. Sex was added to the statute as a last-minute effort to sink the statute. In contrast, gender-based violence and harassment were the motivating impetus for the ILO treaty, and the treaty itself reflects a more contemporary understanding of who is likely to be at risk than Title VII jurisprudence does. Whereas gays, lesbians, trans, queer, and non-binary individuals have had to fight for inclusion in Title VII with uneven results, the ILO seems to focus on power imbalances and relationships in such a way as to automatically include sexual orientation harassment or harassment for other manifestations or perceived manifestations of nonconformity in sex or gender. As referenced above, the ILO treaty demands a gender responsive approach which tackles underlying causes and risk factors including gender stereotypes, intersectional discrimination, and unequal gender-based power relations.

Third, as American courts are weakening collective bargaining and unions are generally on the decline in the United States, the ILO treaty emphasizes the central importance of labor organizations and collective action. The treaty encourages the active involvement of labor in undertaking workplace inspections and asks members states to “respect, promote & realize the right to collective bargaining.” It envisions the use of workers’ groups to identify risks and the most vulnerable workers as well as a possible role in complaint resolution.

Conclusion

Although the United States is unlikely to ratify the ILO treaty under any foreseeable administration, the mere presence of the treaty as a point of discussion on a global setting signals progress. Even if the treaty never becomes binding law in the US, global employers may develop policies consistent with the treaty’s aims, particularly if they have factories or any other sort of presence in ratifying countries. While the pace of change for #MeToo and the corollary movements is, for some, rapid, and for others, glacial, this treaty is another demonstration of the widespread commitment to change.