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Part II
About eight months after ABM received the anonymous letters at its San Francisco office, the company found the elusive “Erica,” though it didn’t locate her on its own.
A complaint had come into the U.S. Equal Employment Opportunity Commission, the federal agency responsible for policing on-the-job discrimination and harassment.
A cleaner named Erika Morales said her supervisor, José Vasquez, had harassed her.
Once it received Morales’ complaint, the commission sent a team to investigate. Its lawyers found 11 more janitors willing to publicly share their stories about being harassed or assaulted by Vasquez. This included Maria Magaña, who said she’d been raped by Vasquez while cleaning a Rabobank branch one night.
Maria Magaña
Maria Magaña says she was raped by supervisor José Vasquez while cleaning a branch one night in Bakersfield, Calif. “Every time I come to this bank, I remember what happened,” she said.Credit: FRONTLINE
Tiny and tough, Magaña already had fought back a few times by hitting him with a duster or shoving him with a broom. The night she says she was raped, he summoned her to a conference room – where there were no security cameras – by telling her that the customer had complained about her work there. Once inside, he pushed her to the ground. Before she hit her head, she said she remembers thinking that there was nothing she could use to protect herself.
“I would have defended myself if I had been on guard,” she said recently. “That day, I was not on guard.”
Magaña lives with her son and elderly mother in Bakersfield, in a neighborhood at the intersection of farm fields and modest houses. She doesn’t mind working the night shift, but day or night, she is careful to avoid the bank where she said Vasquez raped her.
“Every time I pass by this bank, I remember what happened,” she said. “That’s why I try not to travel on this street. I take a turn.”
Until the commission came to her, Magaña had not reported the problem to the company or police.
“I was silent because of shame,” she said. “He would laugh and say that they weren’t going to believe me anyway.”
The government investigators found male co-workers who witnessed Vasquez’s behavior. One said he had personally seen Vasquez assault or harass female workers about a half-dozen times.
José Vasquez
José Vasquez, shown in a deposition video for the Equal Employment Opportunity Commission case, quit his job at ABM after the company learned of his 1987 rape conviction. Credit: Equal Employment Opportunity Commission
The commission also did what the company had not: It ran a basic background check on Vasquez and quickly discovered that he’d been convicted of rape in 1987 and sentenced to eight years in prison.
The commission notified ABM of Vasquez’s criminal record in December 2006, more than two years after he started working for the company. For the first time, someone at the company typed Vasquez’s name into California’s online sex offender registry. If company officials had pulled the criminal records, they would have learned that when Vasquez worked at a small Bakersfield movie theater, he raped his boss’s 18-year-old daughter at her home after a night of drinking.
On his job application, Vasquez hadn’t answered the question about whether he had ever been convicted of a crime. If he had, he would’ve had to include more than the rape. Not long before filling out the application, he’d been released from prison after serving a four-year sentence for possessing drugs he planned to sell.
Once ABM discovered the rape conviction, the company planned to put Vasquez on unpaid suspension until it completed its own investigation. Instead, he quit on the spot. His cousin, Javier, kept his position and wasn’t disciplined. He couldn’t be reached for comment.
José Vasquez now lives in a one-story house in Lamont, just outside Bakersfield. Cars share the driveway with a display of outdated appliances and spilled garbage.
When we knocked on his door one afternoon, he emerged shirtless and pulling on a pair of dark green trousers. At 60, his chest is still broad, if sunken. One arm bears a tattoo of a she-devil with the words “JV Hot Stuff” surrounding it.
We asked him about the claims that had been made against him when he worked at ABM. The women were “money hungry,” he said as his young kids ran in and out of the front hallway. “They were doing it all for the money. I didn’t even know some of the women.”
He’s never been charged with any crimes based on claims from the Equal Employment Opportunity Commission lawsuit. Morales never went to the police.
The ABM allegations were hard on him, he said. After he left the company, no one wanted to hire him. He ended up starting his own business called R&B Cleaning Co. with his girlfriend, a janitor he met at ABM. Together, they have four young kids with a fifth who was on the way.
Before José Vasquez fell on the job and started receiving disability payments, the couple had bought a truck and begun cleaning houses that had been foreclosed by banks. The company isn’t registered with the state.
Although Vasquez had decided to strike out on his own, his departure didn’t resolve ABM’s problems.
Anna Park
Anna Park served as the government’s attorney when the U.S. Equal Employment Opportunity Commission sued ABM in 2007 for failing to prevent sexual harassment.Credit: FRONTLINE
The federal government sued the company in 2007 for failing to prevent sexual harassment. Anna Park, the government attorney, saw systemic breakdowns at ABM, and it’s her job to hold employers – not perpetrators – accountable. The case she put together went well beyond Vasquez, growing to include 21 women who said they’d been sexually harassed by 14 men across California’s Central Valley.
The company responded to the Equal Employment Opportunity Commission in court filings by saying that few of the women’s claims met the legal definition of sexual harassment, which must be sustained and serious. ABM also said the women had received copies of the company’s sexual harassment policies, but not everyone had reported what was happening.
***
Night Shift
Credit: Matt Rota
Before the 1980s, most businesses had their own janitorial staff. Then building owners and stores began outsourcing the work to cut costs. This created an explosion in contract cleaning companies.
In janitorial work, there’s a low barrier to entry – you need little beyond a mop and bucket to get a business off the ground – so many companies are tiny enterprises. About 93 percent of the 780,000 companies in the United States are registered as one-person outfits, according to the Census Bureau.
Much of the industry functions on a convoluted system of subcontracting. Some companies land cleaning gigs with big-box retailers or high-end high-rises but subcontract the actual cleaning to a different company. Some of the subcontractors might then subcontract the work to yet another business. This creates layers under which exploitation can thrive.
To stay competitive, cleaning companies of all sizes have to keep prices low. According to what’s reported to the federal government, janitors earn about $25,500 a year. The primary expense is labor, so wages are the first place where they cut corners.
“The way you make money in this industry is to cheat because the profit margin is so thin,” said Stephen Lerner, who led the first national effort to organize janitors for the Service Employees International Union in the 1980s.
Janitors have claimed that they were forced to clock in using two different names to avoid racking up overtime, Lerner said. They say unscrupulous contractors call them independent contractors so they don’t have to follow labor laws. Segments of the workforce aren’t authorized to work in the U.S., a scenario that makes workers vulnerable to abuses and puts companies at risk for legal problems.
Lilia Garcia-Brower
Lilia Garcia-Brower is the executive director of the Maintenance Cooperation Trust Fund, which is partially funded by ABM to ferret out labor violations among nonunionized companies.Credit: FRONTLINE
Another part of the industry operates completely on the black market. The outfits go unregistered with the government to avoid paying taxes or insurance. These off-the-grid companies can charge far less than their competitors, said Lilia Garcia-Brower of the Maintenance Cooperation Trust Fund, which is partially funded by ABM to ferret out labor violations among nonunionized companies.
A recent study of 826 low-wage employees working illegally in San Diego County found that 64 percent of the janitors surveyed had been cheated out of pay or suffered some other labor violation. About one-third said they’d been forced to work against their will, and 17 percent of that group said they’d experienced some kind of physical threat, including sexual violence, according to the study from Cornell University and San Diego State University professors.
In one of the most horrific displays of what can go awry, a band of brothers from Ukraine trafficked about 70 people from their home country to Philadelphia and forced them to work as cleaners after winning subcontracting gigs at companies such as Target and Wal-Mart from 2000 to 2007. Two women told prosecutors that they’d been raped by one of the traffickers.
At the other end of the spectrum is ABM, which has a long history of enviable success and expansion. American Building Maintenance Co., as it initially was called, was started in 1909 by Morris Rosenberg, who volunteered to clean the windows of San Francisco hardware stores and pharmacies. Pay me whatever you feel the job is worth, he’d tell owners. Soon, he was working for major department stores and theaters.
One of his first big contracts was for a bank run by his childhood friend, an Italian immigrant named Amadeo Giannini who started an outfit now known as Bank of America.
Today, ABM is a publicly traded company headquartered in New York with $5 billion in annual revenue. Its workers clean 2 billion square feet each day. It has expanded its offerings to security, parking and facility maintenance of all kinds. It handles sustainable energy projects for high-rises, operations support for military bases and maintenance that keeps golf courses pristine.
Despite growth into other areas, the bulk of ABM’s revenue still comes from its janitorial business, and cleaners make up 57 percent of its workforce. Its market share is five times larger than that of its janitorial competitors.
Like other larger and unionized outfits, ABM has human resources departments that distribute written policies on wages, breaks and workplace conduct. ABM’s policies say it does not tolerate sexual harassment. Those written policies instruct workers that it’s their responsibility to immediately report a problem to human resources. Workers also can call a 24-hour complaint hotline in 100 languages.
From there, the company promises to do a swift and effective investigation. A document handed to investigators, called a “blue letter,” gives them two missions: Address the worker’s concerns and help defend the company in possible legal actions.
And while written policies are critical for companies, they’re only a starting point, said Louise Fitzgerald, a renowned sexual harassment researcher at the University of Illinois at Urbana-Champaign. From there, a responsible company should publicize the policies to its workers and make it easy for them to complain. And if the company believes something has happened, it needs to take action.
“That’s one of the things we do know: If a company sends a strong message that it does not tolerate this behavior, there will be less sexual harassment,” she said.
Over the course of more than a year, we reached out to more than a dozen ABM board members, ex-employees and shareholders to ask them about the sexual assault claims brought by workers such as Erika Morales and Maria Magaña. Most did not want to talk – and some hung up on us – but others told us anonymously about the inherent challenges that come with addressing sexual harassment in the janitorial industry and how ABM has the best policies in the business. But they wouldn’t go on the record.
To truly get an insider’s view, we traveled some 2,000 miles from the company’s New York headquarters to eastern Washington state to talk to Mary Schultz, a lawyer who consulted for the company for three years.
Mary Schultz
Mary Schultz, an attorney who consulted for ABM from 2006 to 2009, said the company was trying to address sexual harassment, but the issue had gotten away from it at some branches. “It’s a huge undertaking and will continue to be,” she said. Credit: FRONTLINE
ABM had hired Schultz after she successfully sued it for gender discrimination on behalf of a former ABM manager. As part of her consulting work for the company, Schultz traveled the country to talk to employees from all ranks.
What Schultz learned during her time with ABM was that the company was trying to address sexual harassment, but there were hot spots at different branches across the country where the issue had gotten away from them.
“When I got involved with the company, I certainly understood and believed that there was a definite intent to address these issues,” she said. “But it’s a huge undertaking and will continue to be.”
She said it’s a point of pride for the company that ABM offers an on-ramp to the American dream. At ABM job sites, people show up to work from China, Mexico and the Caribbean. They bring with them different customs, expectations and languages.
“You have a very diverse employee base, spread out across the country,” Schultz said. “You have a lot of really good people, and you have some really bad people. And the dilemma for the company is to try and identify and contain.”
When her three-year term ended in 2009, she left believing that both companies and workers have a responsibility to prevent harassment. Bosses needed to create policies, show vigilance and make it clear that there are consequences. And workers needed to report the problem.
This was the crux of a case Schultz helped ABM litigate in Minnesota, where eight women made claims in 2006 that they’d been harassed or assaulted by their superiors.
Miriam Pacheco was among them. Wearing a red sweater and velvet pants to ward off the winter chill, Pacheco told us not long ago that she’d been raped repeatedly by her co-worker in a conference room and a private office she cleaned. He had terrorized her by pulling all of the telephone wires so she couldn’t call for help, then blamed her for breaking the cords, she said.
Schultz took Pacheco’s deposition in 2007, at a moment when the ex-janitor was living in a homeless shelter with her two kids. Pacheco didn’t get much of an education before she came to the United States from Mexico, and she was in the country without immigration papers.
At the deposition, Schultz grilled Pacheco on the fact that she’d signed documents acknowledging receipt of ABM’s sexual harassment and workplace policies but didn’t use them to bring forward her complaint. Pacheco said she didn’t understand them, and she had taken the papers home and thrown them away.
At the time, Schultz was unrelenting, but now she acknowledges that workers like Pacheco are in a tough position.
“Everyone goes home to sleep. These folks are out there working,” she said. “What happens in that environment can be confusing, and if something happens, where do they turn? The question for the company becomes, ‘How can we get at those incidents? How do we protect?’ And there are limited ways of doing it. I mean, you can’t post a federal marshal at the door.”
After four years of litigation, the Minnesota case was thrown out in 2010. The judge said that in some cases, the women did not properly complain about the problem, and in others, the company had dealt appropriately with the issue. The judge also said some of the women’s complaints didn’t meet the legal definition of sexual harassment.
Looking back on that case, Schultz recognizes that workplace sexual harassment cases often hinge on what laypeople might consider a technicality.
“The law is the law,” Schultz said, and “some of that has little to do with what actually happened.”
“The company is not saying, nor has it ever, that these things don’t happen,” she added.
Schultz said civil lawsuits are a necessary but imperfect way to demand accountability, forcing companies into a position where they need to fight them.
“Do companies just start opening the wallet, paying out money to people whose circumstances they believe?” she said. “I think that would be horribly risky for any company. You would end up getting complaints from every angle. You would end up with varying motivations for complaints. You would be overwhelmed with trying to sort out the good from the bad.”
A year after Schultz left the company, ABM agreed to settle the case sparked by Erika Morales’ complaint. It paid $5.8 million but didn’t admit any wrongdoing.
ABM promised to improve sexual harassment training, ensure its policies are distributed in both English and Spanish and conduct on-site audits for sexual harassment. It also pledged to train its investigators, hire bilingual human resources staff and create a centralized database of worker complaints. Some of the provisions were national; others were specific to California’s Central Valley. Finally, it agreed to have the government’s expert witness oversee its progress through 2013.
ABM’s attorneys said the company has updated its policies and training since the government lawsuit.
“They did comply with the terms that we laid out, which we felt addressed some of it. Does that speak to the national practice?” said Anna Park, the government attorney. “I can’t say. We hope.”
Today, ABM continues to face sexual harassment cases in court. Since the beginning of 2010, the company has been sued seven times in federal court and at least nine times in California courts.
Most of the time, the company settles the cases without admitting guilt. Sometimes, the company prevails.
Its next test could come this fall. The company is slated to go to trial in a case in which three Southern California women allege that they were harassed, assaulted or raped by the same ABM floor waxer. The women have a familiar charge: They say their complaints to ABM management were ignored.
For months, they said, the abuse escalated. One woman said she was raped in fall 2009, and several months later, another woman said she was sexually assaulted by the same man. When she immediately reported it to a manager, she said she was told to go back to work. The manager told her that she should not contact security and that he’d call the police.
Eventually, the woman got tired of waiting for a response, she said, and went to the authorities on her own. The floor waxer ended up pleading guilty to sexual battery. He served one year in jail and got five years of probation.
ABM argues in court documents that it took immediate action once it received a complaint, firing the floor waxer, and that the women should be barred from bringing the lawsuit because they had settled workers’ compensation claims with the company based on these same allegations.
In the end, few win at trial against ABM. Maria Bojorquez is one of them.
She accused a supervisor of raping her while she cleaned a law office in San Francisco’s iconic Ferry Building in 2004. After she complained, she said she was fired. ABM’s investigator had decided Bojorquez’s claims were inconclusive, but when the case went to trial in 2012, the jury found that ABM had failed to prevent harassment and had fired her for making the claims. Bojorquez was awarded more than $800,000 in damages. The company appealed.
In a recent hearing in that case, ABM’s lawyer argued that workplace violence cases involving other janitors shouldn’t have been brought up at trial. Standing before a panel of judges, he noted that the company has “tens of thousands of employees located across the United States and internationally, many who work in remote locations at night with minimal supervision.”
“Bad things sometimes happen,” he said.
***
For the past six years, Erika Morales has become known to the masses as DJ Bunny for Ligera FM, a shoebox of a station inside a bustling Bakersfield mercado.
After she quit her job at ABM, Morales managed a restaurant and nightclub. Her boss eventually tapped her to plug events on the local radio station. She discovered that even though she’s not the showy type, her voice becomes irresistibly golden once it meets a microphone.
Watching her transition from Erika to Bunny is like seeing an ember catch flame. At the station, she puts on headphones and effortlessly reads the horoscopes or promotes rock en Español concerts. Between news bits, she gives throaty shoutouts to the people who have written to her on Facebook from California, Argentina or Peru.
In the boundless Internet radio landscape, Morales is especially beloved because she has been willing to talk candidly about hard topics. Teary callers have sought her advice on how to file a police report for sexual assault or how to leave an abusive relationship.
Until a day in late February, she never had let on that she spoke on these topics with her own kind of tragic authority. But she found herself on the edge of a moment. She had one of her regular guests lined up, a California Highway Patrol officer, and she’d promised her listeners a program about workplace problems.
Erika Morales
Erika Morales is now known to the masses as DJ Bunny for Ligera FM, a radio station inside a Bakersfield mercado. She is beloved for her willingness to talk candidly about hard topics. Credit: FRONTLINE
When the music stopped, she leaned into the mic and the words spilled out: “This is something delicate, and personally, I’ve never told this part of my life on air. Very few people know about this period, but I want this to serve as …”
Morales’ voice became uncharacteristically shaky. “And sorry if I may get a little emotional, but it’s still a question that I am trying to overcome,” she said.
Morales told her listeners that she’d been sexually harassed at work and that she knows it’s hard to come forward. She never did make it to the police herself. She just couldn’t summon the courage at the time. She told her listeners that in her case, she and others had tried to tell their bosses, but nothing was done.
“The problem is when they don’t believe you,” Morales said.
Nevertheless, she exhorted her listeners to report the problem. She reminded them that it wasn’t right and that it was never their fault.
“That’s not right,” she said. “You go to work and keep your head down, make your money and stay out of trouble.”
For nearly half an hour, Morales and the California Highway Patrol officer went back and forth on how to deal with sexual harassment. Then it was time for the rock music hour. She said farewell to the officer, put on a song with a bracing backbeat and turned off her mic before exhaling deeply.
Her phone was blazing with messages. “We are with you,” one said. Another read: “Continue fighting.” She was surprised by the response. She had expected to be judged.
Back on the mic, she thanked everyone for their support as she prepared to play Guns N’ Roses’ “Sweet Child O’ Mine.” Her upbeat cadence and rich delivery had begun to return. She let the song rage.
A decade has passed since Morales quit her job at ABM. She said she had set aside her fears to file a complaint because she was thinking of her daughter, her mother and the other women who were not yet ready to come forward.
When Morales had handed over her keys and tried one final time to tell a supervisor what was going on and he had dismissed her, she remembers spitting out her words. “There will be someone. Someone will speak out, and they are going to come and tell you that what you are doing is wrong,” she had said.
Morales still is amazed by the way her voice can carry. “I never imagined that I would be the one to speak out,” she said.
