Sex Harassment Classes

Editor’s note: The following two stories are reprinted from the San Francisco Chronicle’s Labor Day 2006 edition.

Fifteen years ago this October, Anita Hill’s testimony at the 1991 confirmation hearings of Supreme Court Justice Clarence Thomas made sexual harassment a household term. Hill’s testimony that Thomas had made inappropriate sexual advances in the workplace triggered a nationwide trend toward sexual harassment prevention training.

That year, Congress also amended the Civil Rights Act to provide for damages in employment discrimination cases. This gave employers additional incentive to provide training, as did two 1998 Supreme Court rulings that showed companies could reduce their risk of liability by providing a clear system for employee complaints.

Today, millions of Americans have completed courses in the do’s and don’ts of workplace behavior. And in California, the training — which now also addresses discrimination based on age, disability, race, religion and national origin — has been required for all supervisors since 2005.

Though it may be too soon to gauge the absolute success of the training, experts say it is one reason that sexual harassment claims have declined in every type of workplace, according to the U.S. Equal Employment Opportunity Commission, which has collected that data since 1991. The most claims, 15,889, were filed in fiscal year 1997. By 2005, claims had dropped to 12,679.

In addition to the training, another reason for the decline is the heightened awareness of the cost of sexual harassment cases.

“The increase in sexual harassment training since 1991 has benefited both employees and employers,” said Wendy Bliss of the Society for Human Resource Management, a national professional association. “Employees have gained awareness of how sexual communications and behaviors on the job, even if intended as harmless fun, can be offensive to co-workers.”

Even in California’s agricultural sector, where women have traditionally been more vulnerable to sexual harassment and retaliation because so many don’t speak English and are undocumented, claims have dropped 51 percent since 1997, according to the state’s Department of Fair Employment and Housing.

But some experts are only cautiously optimistic about the recent data showing a drop in claims. “The statistics might be a hopeful indication that things have improved,” said Professor Susan Bisom-Rapp, director of the Center for Law and Social Justice at Thomas Jefferson School of Law in San Diego. “Nonetheless, we need to look further before deciding that substantive change on the ground accounts for the statistical declines that we see.”

Still, many experts are convinced that training has been the driver, helping both employers and employees understand what kinds of behavior are illegal, and why.

For example, “it has been helpful to explain to men why certain practices are hostile, unfair or interfere with a woman’s ability to do her job,” said Cliff Palefsky, a San Francisco employment attorney active in such cases.

“In the Bay Area, companies are now taking their obligation to investigate and discipline perpetrators much more seriously than in the past,” Palefsky said.

One motivation is that employers know the cost of ineffective training can be exorbitant. In 1994, the average harassment jury award was $141,000. Today, it’s $1 million, according to a recent report by the Insurance Coverage Litigation Reporter and Business Wire.

The high price of litigation was illustrated in May, when a Fresno County jury awarded $1.7 million to Janet Orlando, a salesperson who was spanked in front of co-workers as part of so-called team building exercises at Alarm One, an alarm systems company.

The verdict may be appealed, but the size of the award shows that judges and juries are willing to punish companies that don’t take the training — or an employee’s complaint — seriously. Alarm One supervisors had undergone sexual harassment training; when Orlando protested, her complaints were ignored. Now, two of her supervisors must pay $50,000. The company will pay the remainder.

“In California, a supervisor may be held personally liable for his or her own acts of harassment that harm a person,” said Janie Hickock Siess, assistant deputy director of training for the California Department of Fair Employment and Housing.

“When I tell people this during training, I frequently see jaws drop!” Siess said. “But if you go to work and engage in this unlawful conduct, you’re putting your own assets at risk.”

Training also has helped victims of sexual harassment understand that they are not at fault and that they have the legal right to be protected against harassment.

At Stanford University, Laraine Zappert founded the Sexual Harassment Policy Office in 1993. “The training gives employees the sense that there is an office where help is available, where they can consult ‘off the record,’ and that is incredibly important,” Zappert said.

Training also has a pre-emptive effect, since it helps companies to solve problems before they escalate.

In the past, employees often filed claims directly with a federal or state agency such as the U.S. Equal Employment Opportunity Commission or the California Department of Fair Employment and Housing. Today, when a worker calls a government agency, the caller is commonly asked if he or she has first gone through their company’s complaint system.

“We have seen an increase in internal complaints, which is a good thing,” said Donna Rutter, a management-side defense lawyer with the San Francisco firm of Curiale, Dellaverson, Hirschfeld & Kraemer.

“If you’re an employer, you really want employees to come to you,” Rutter said. “You don’t want them to go to the government agencies or a plaintiff’s attorney.”

The national spokesman for one government agency agreed. “The purpose of training is for employers to resolve problems through their own complaint procedures and policies, which helps to preserve a positive working relationship,” said David Grinberg of the federal Equal Employment Opportunity Commission.

Though sexual harassment claims have declined, jury awards have increased for those that do make it to court. This may be because government agencies and plaintiff’s attorneys naturally take cases that look winnable — that is, cases where the employer had no clear complaint system or where training was substandard. It is just one more reason employers want to nip problems in the bud.

“In 90 percent of these cases, when the violators are clearly told the behavior is not tolerated, it will stop. But when that message is not communicated, that’s when the thing escalates,” said Garry Mathiason, a partner in Littler Mendelson, an employment-law firm with headquarters in San Francisco.

“People rail against the legal system, but with sexual harassment, it has been an extraordinary deterrent,” Palefsky said. “When employers saw the $3 million final verdict in the Baker & McKenzie case, it changed how business was done.”

That 1994 case took place in the Palo Alto office of one of the world’s largest law firms, Baker & McKenzie. A jury awarded a record $7 million verdict (later reduced to $3 million) to a woman who claimed to have been repeatedly sexually harassed and humiliated by her boss. The jury found that multiple complaints had been filed against the harasser in his previous post, and that those who complained suffered retaliation.

The case threw a floodlight on the importance of training all employees, including top management and high-performance rainmakers.

After the verdict, the New York Times published an impassioned editorial: “If that judgment conveys its intended meaning, law firms and other enterprises across the country will bolt from their complacency and rectify the mistreatment of women in the workplace.”

Today, Baker & McKenzie has 3,300 employees in 70 cities in 38 countries, all of whom receive training. “Whether training protects you in a lawsuit or not is irrelevant,” said Edward Zulkey, the firm’s general counsel. “It’s a vehicle by which you make people aware of the right thing to do.”

Still, some people feel constrained by the more cautious atmosphere in the workplace. They complain about walking on eggshells and fearing a lawsuit if they so much as compliment a co-worker.

“You can’t say anything at work anymore,” is a common refrain, to which Fresno civil rights attorney William Smith has a succinct response.

“Hogwash,” said Smith, who has represented plaintiffs in sexual harassment cases for nearly 30 years. “Just ask your daughter — or your spouse — if they think they should have to tolerate uninvited touching or suggestive comments at work.”

In the end, training is just good business.

“An environment where harassment is not acceptable helps to build trust,” said Mathiason of Littler Mendelson. “And the increase in trust means you can keep and attract better employees. You have more productivity, higher profits. The gain is far greater than the cost.”

California Law

The California Fair Employment and Housing Act defines sexual harassment as harassment based on sex or of a sexual nature, gender harassment and harassment based on pregnancy, childbirth, or related medical conditions. The definition of sexual harassment includes many forms of offensive behavior, including harassment of a person of the same gender as the harasser. The following is a partial list of types of sexual harassment:

Unwanted sexual advances
Offering employment benefits in exchange for sexual favors
Actual or threatened retaliation
Leering; making sexual gestures; or displaying sexually suggestive objects, pictures, cartoons or posters
Making or using derogatory comments, epithets, slurs or jokes
Sexual comments including graphic comments about an individual’s body; sexually degrading words used to describe an individual; or suggestive or obscene letters, notes or invitations
Physical touching or assault, as well as impeding or blocking movements

Source: California Department of Fair Employment & Housing

FEDERAL LAW

Sexual harassment is a form of sex discrimination that violates Title VII of the Civil Rights Act of 1964. Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitutes sexual harassment when submission to or rejection of this conduct explicitly or implicitly affects an individual’s employment, unreasonably interferes with an individual’s work performance or creates an intimidating, hostile or offensive work environment. Sexual harassment can occur in a variety of circumstances, including but not limited to the following:

The victim as well as the harasser may be a woman or a man. The victim does not have to be of the opposite sex.
The harasser can be the victim’s supervisor, an agent of the employer, a supervisor in an another area, a co-worker or a nonemployee.
The victim does not have to be the person harassed but could be anyone affected by the offensive conduct.
Unlawful sexual harassment may occur without economic injury to or discharge of the victim.
The harasser’s conduct must be unwelcome.

Source: U.S. Equal Employment Opportunity Commission

CALIFORNIA WORKPLACES UNDER STRICT REGULATIONS

“You don’t have to chase someone around a desk to be guilty of harassment,” said Sarah Reyes, a former state assemblywoman from Fresno. To clarify what constitutes sexual harassment, Reyes wrote AB1825, which requires all California companies with 50 employees or more to provide sexual harassment prevention training. That bill became law in 2005.

To comply with the law, corporations have relied on human relations departments or in-house counsel. Large and small companies also often hire outside trainers for live, on-site training sessions. But many companies, seeking a less expensive or more flexible means of training, have purchased computer-based programs or have required their employees to participate in online seminars.

The potential weaknesses of these programs will be addressed by new regulations, which were proposed in June by the California Fair Employment and Housing Commission. They are expected to be added to the law this fall.

The regulations are intended to standardize the quality of the training and to ensure that computer programs are interactive, requiring an employee to remain engaged for a full two hours and to respond at least every 15 minutes.

Along with these interactivity requirements, the proposed modifications to the law address out-of-state employers — whose supervisors must be trained in state law if they oversee even one California employee — and present heightened requirements for trainers and training programs.

The proposed guidelines were posted for public comment for three weeks in July on the commission’s Web site (www.fehc.ca.gov). The final version must include responses to every public comment.

“It results in a lot of paper, but the process produces good regulations,” said Ann Noel of the Fair Employment and Housing Commission, who spearheaded the new regulations.

“Ultimately, we will end up with regulations that can be used as a model for other states.”

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