Ruling May Curb Harassment

Not even that dedicated attorney for women’s rights, Gloria Allred, wants a law against flirting in the workplace, but she says that now more than ever, those who flirt despite protests by women continue at their own peril.

Allred was referring to a remarkable decision the other day by the U.S. 9th Circuit Court of Appeals that said judges and juries should look at sexual harassment charges from a “reasonable woman’s” point of view instead of the traditional, male-biased “reasonable man’s” perspective.

Several recent court decisions have shown an increased understanding of the need to protect women from being sexually harassed on the job, and a growing number of women are learning that they can get the legal protection they need.

As a result, sexual harassment cases are increasing nationwide and women are winning most of them, often along with substantial financial awards.

In California, nearly half of the complaints filed with the Department of Fair Employment and Housing came from women who charged that they were victims of sexual harassment on the job. The “reasonable woman” ruling won’t eliminate sexual harassment, but it can help curb a significant amount of it and pressure more companies to establish and firmly enforce policies prohibiting such harassment.

Unfortunately, the Bush Administration may take a different view of the decision.

Perhaps reflecting the Administration’s view, U.S. Atty. William McGivern says no decision has been made yet on whether to challenge the “reasonable woman” ruling, but clearly he doesn’t like it.

McGivern sees nothing wrong with asking judges and juries to continue viewing sexual harassment cases from the usual view of a “reasonable man” since “man” is the generic word for all human beings.

And besides, he says, the decision might lead to a ridiculous situation in which cases involving, say, blacks or Latinos will have to be judged only from a reasonable black or Latino viewpoint.

McGivern doesn’t seem to understand that pejorative language about minorities or mistreatment of them is self-evidently offensive, but sexual words or acts that may be innocuous to men may still do real emotional damage to women.

Happily, the judges of the U.S. 9th Circuit Court of Appeals realized that distinction and they may help establish higher standards of conduct toward women in the workplace.

Often harassment is sickeningly obvious to both men and women, as in the case of the five Los Angeles County sheriff’s deputies who were fired because they allegedly hazed a new female deputy by encouraging prison inmates to expose themselves to her and scream obscenities at her.

Also obvious is the illegal harassment by male supervisors who use their authority to demand sex relations with female employees in return for a pay hike or a better job.

These so-called quid pro quo cases can also be filed when a woman is threatened with dismissal if she refuses demands for sex.

But sexual harassment doesn’t have to be obvious to the man involved for a woman to file charges. A man’s perception of his conduct can be radically different from that of a woman--the key point in the U.S. Circuit Court ruling.

Some male employees need to know that their “friendly” smile may well look like a lascivious leer to a woman, says Barbara Schlei, a former regional attorney for the federal Equal Employment Opportunity Commission who now represents management.

Sometimes a man’s joke may sound to a woman like an unwelcome sexual proposition, Schlei says. Once the woman makes it clear that she resents or fears that flirtatious smile or joke, the man had better cut it out because the courts may now see it from the viewpoint of a reasonable woman who no longer has to tolerate what she feels is sexual harassment.

Supervisors or managers--those able to make the quid pro quo propositions--are still subject to legal action, along with their companies, even if they make their threats or promises away from the workplace and after hours, says Sheila James Kuehl, a director of the Southern California Women’s Law Center.

When co-workers harass women, as in the case of the sheriff’s deputies, their cases are called “environmental” and occur when unwelcome sexual conduct creates what the courts call an “intimidating, hostile, or offensive working environment . . . that unreasonably interferes with an individual’s job performance.”

If a company allows environmental harassment, it is also subject to legal action.

Nancy Bornn, a plaintiffs’ attorney in harassment cases, says that too often jurors, especially males, shrug off discrimination charges, saying that if the woman plaintiff is unhappy, she should quit and find another job.

Fortunately, those with such harsh attitudes can now be challenged and kept off juries if they cannot look at the evidence from a reasonable woman’s viewpoint--although women must still prove their charges in court, which isn’t always easy.

In California, victims who win their cases not only can get their jobs back--plus back pay--if they have been fired, but they can also get punitive damages and money for pain and suffering.

Under federal civil rights law, victims cannot collect money for punitive damages or for pain and suffering.

But they would have been able to if Congress had overridden President Bush’s veto of the Civil Rights Act of 1990.

Congress will try again to pass the bill; maybe this time it will have enough courage to override a veto by Bush.

And who knows, maybe the Administration will sensibly decide not to try to challenge the exemplary “reasonable woman’s” ruling.