MICHELLE A. REINGLASS : On-the-Job Harassment : Attorney Tells Legal Options for Employers, Workers
Despite gains achieved by women in the workplace in recent years, relations between the sexes from 9 to 5 aren’t all they could be. In fiscal year 1989-90, 1,457 people statewide filed claims of sexual harassment with the California Department of Fair Employment and Housing--up from 1,179 in 1986-87.
Laguna Hills attorney Michelle A. Reinglass, who devotes a large part of her practice to employment law, isn’t sure that the incidence of sexual harassment is increasing. But a heightened sensitivity to improper behavior and lewd jokes, and a greater awareness of employee rights, has kept her busy in recent years with a steady stream of sexual harassment cases--both on the plaintiffs’ side and in defending employers.
A recent U.S. 9th Circuit Court of Appeals decision could make it easier for employees to persuade a judge and jury that they deserve large awards for offensive behavior committed or condoned by their employers. The decision--which came in the case of an Internal Revenue Service employee suing the government for failing to take steps against a co-worker who had made unwanted advances toward her--made clear that judges and juries should consider how a “reasonable woman” would perceive such advances, rather than just a generic “reasonable person,” which feminist legal scholars had long argued was a euphemism for a man’s point of view.
Reinglass attended UC Irvine and received her law degree from Western State University College of Law before being admitted to the California State Bar in May, 1979. She is treasurer of the Orange County Bar Assn., and maintains a sole practice in business and civil litigation.
Reinglass discussed the state of sexual harassment law, how companies can help protect themselves, and what employees should do if they feel harassed, with Times staff writer Bob Schwartz.
Q. What’s a good working definition of sexual harassment in the workplace?
A. Sexual harassment falls into two basic categories. One is what is called tangible benefits, or quid pro quo sexual harassment, and that is where an employer or a supervisor demands sexual favors in exchange for some type of employee benefit. . . . It doesn’t have to be so direct as “go to bed with me.” It can be, “Don’t complain when I touch you, don’t complain when I kiss you.”
Q. And the second category?
A. The second type is the offensive or hostile environment. That’s where the conduct of the employer or the supervisor or the company agent--usually to a subordinate, but it can be employee to employee--creates a hostile atmosphere. In other words, they make it difficult to work there. . . . It can be lewd jokes, although a mere bad joke in an isolated situation isn’t in and of itself going to be sufficient. But if you have someone who likes to keep touching, or making lewd suggestions even without necessarily carrying it out, that can create the hostile environment, and the law is designed to protect a person from feeling uncomfortable. So it may not be as direct as people perceive it, it’s usually the real subtle, indirect type that is the most common.
Q. You mean the days of bosses demanding that their employees perform sexual favors for advancement--or demoting them if they stop providing those favors--are largely over?
A. I think it is becoming rarer and rarer that a responsible employer or supervisor is going to make overt advances, because we’re becoming more educated. . . . You rarely see the real gross situations any more. It doesn’t take a Rhodes scholar to figure out that if you try to proposition someone to go to bed--promising them a promotion or threatening a demotion if they don’t--that might be somewhat prohibited. People are aware of that now.
Q. What’s the threshold? A joke or comment that’s funny to one person, or a group of people, might offend someone else. How bad does it have to be before a company should worry?
A. Well, now you get into standards, from whose perspective is it offensive? If it’s really egregious, for instance, where co-workers would force somebody to bend over and do things (picking up a pencil), something like that, it would be pretty clear that that’s offensive. Just telling an off-color joke that’s maybe offensive to a lot of people but . . . it’s only a one-time shot probably wouldn’t be sufficient. . . . It depends on which standard the court’s going to apply. In most courts the standard has been the “reasonable man” standard. So you’re evaluating it from ‘how would a reasonable person perceive this?’ Now they’re saying no, it’s how would a ‘reasonable victim’ perceive it.
Q. What’s the difference?
A. If it’s the reasonable victim approach, then somebody’s going to be looking at how would a woman--or, let’s be fair to men, if you’re in an all-woman office and there happens to be a situation like that--how would he or she respond. If it’s the reasonable person standard, the question is would the reasonable person consider this to be offensive contact? Would the reasonable person say that this is sexually improper?
Q. In other words, not from the standpoint of the victim, but just as a reasonable outsider?
A. Yes, not just from the reasonable victim’s standpoint, but from the ‘reasonable person’s.’ The decision--they call it ‘reasonable woman’ but it’s really the reasonable victim standard--the rationale in that case is that the other standard is pretty male-biased because an outsider who’s not subjected to the harassment may not have the correct perspective. It really should be viewed from how that person who’s the recipient of the sexual gestures, the conduct, the comments or whatever. . . , how would a reasonable person in that situation perceive it?
Q. Meaning that a woman might be far more sensitive to certain kinds of humor or talk than a typical male, and juries should take that into account?
Q. Have you seen this new standard come into play yet in any of your cases?
A. To be honest, not really. I haven’t had one go to trial since January (when the decision was handed down). Secondly, and more importantly, when I evaluate cases, I always use kind of an overall reasonable standard . . . and the reason for that is these cases are very hard to prove. There usually are no eyewitnesses. It’s usually one person’s word against the other, so that the victim’s credibility is going to be very, very important. A lot of jurors are conditioned to thinking: ‘Hey, we’re used to certain kinds of behavior in the workplace. If you are so thin-skinned you can’t handle an occasional bad joke or something of that nature. . . .’ They’re going to be offended by a woman coming in and complaining about it. So I evaluate them somewhat strictly and rigidly. If I have real concerns about someone on the plaintiff side, I may decline a case. From an employer’s standpoint, I always advise that there’s risk.
Q. How many sexual harassment cases come to you, and what percentage do you take?
A. I probably get 10 or 15 calls a week. . . . As a plaintiff’s lawyer, I know I take a small percentage of them, probably less than 5% or 10%. I counsel a lot. With some people, you think maybe it’s not a strong case for litigation, but the employer knows there is a problem and perhaps this is a settleable issue. I wouldn’t want to necessarily put this client on the stand, but I could do something for her.
On the employer side, they need representation. Most insurance companies are declining to cover or defend any kind of employment case. So the employer’s got to pay out of pocket no matter what. I probably have about five employer cases going right now; as for plaintiffs, it’s got to be three or four times that.
Q. Do these cases typically go to trial? Or do they all settle?
A. They don’t settle right off the bat. I have not yet seen a sexual harassment case settled early on. They usually take you to the mat. I’ve got one right now, I’m on the plaintiff’s side, we’re going to trial probably in July, and I absolutely do not foresee at all a settlement on this one. There is so much animosity on the other side.
Q. Why are these cases so difficult to settle?
A. There’s a heightened level of emotion. It’s not like an auto accident case, where, OK, my employee screwed up and hit your car. Somebody’s being accused of something that is terrible, or is perceived by the public and other people who hear about it as something that’s lousy, rotten, terrible. . . . I’m defending people whose personal lives have deteriorated as a result of the accusation. They’re married, they have children, and everyone has to know about the lawsuit because they’re defending against it. They want to be vindicated, they want to go to trial. There’s no question that litigation costs are prohibitive. That probably is the biggest factor in settling cases, but not until they’ve spent a great deal. They have to hurt first before they’re going to pay anything.
Q. Have you ever had a male plaintiff for a client in a harassment case?
A. Yes, it was an age discrimination, sex discrimination and a sexual harassment case. He worked in an all-woman bank. On the discrimination end, he was being passed over for promotions. I think he got demoted, he was constantly being ribbed and ridiculed by the women. Somebody might have construed it as clowning around, but he did not construe it that way. He was offended, and felt uncomfortable. He felt he was being pushed out to be replaced by a young female. He was 62, or 65 years old.
Q. Did he have a good case?
A. I thought it was a decent one. He had a better than 50-50 chance of prevailing. But he decided he didn’t want to spend the rest of his life in litigation. He didn’t pursue it.
Q. What advice can you give a company that will help them prevent sexual harassment problems from developing?
A. First of all, I want to make sure that they have some type of employment practices and policies in place. Most companies, if they didn’t, now have policy manuals or employee handbooks. I encourage that at all times, and I think just about every lawyer does. And within those manuals and policies, they should definitely have a full-on policy for equal employment opportunity, to give the employees knowledge about their rights, and to give other employees notice of what they should not be doing. Basically, they want to have a policy that discourages sexual harassment. You want that in big, bold print, and then a procedure for how to handle it. If everybody’s put on notice, then the company at least is taking steps to prevent sexual harassment, and it’s also taking steps to put an employee on notice that he or she is going to have to complain or let the employer know if something is going on.
Q. When can a company be held liable for harassment by one of its employees?
A. In a quid pro quo harassment case, where somebody is demanding sexual favors in exchange for some kind of employee benefit, if it is a supervisor or an agent of the company, the company can be held vicariously responsible. If it is an employee-to-employee situation, the standard is basically the company has to know or should have known what was going on. That will help to some degree. . . . The defense the employer raises is, we have no knowledge.
Q. If a problem develops, how should it be handled?
A. If it’s not something terribly egregious, usually it’s to go to your supervisor. If the supervisor is the problem and you feel uncomfortable, you can go to any other level of management. Large companies generally have an (Equal Employment Opportunity) department that investigates these complaints. Some companies have unions that will help process your complaint.
But let’s take a standard 30-employee company. They should at least have the manual or policy in place, and every employee should be given a copy of it and have signed a statement acknowledging receipt of that policy The other thing is, every time you have turnover in management, you take that new manager or new management team--and it’s not a bad idea to keep reiterating to the old team--and educate them about sexual harassment laws, stressing that it is the company policy that this shall not occur, telling them what is offensive.
Q. Anything else a company should do?
A. When a complaint is raised, it’s suggested that the employer take steps to investigate. That would mean interviewing the complainant, interviewing the person against whom the complaint is being made, interviewing any prospective witnesses. It’s good to have documentation of the investigation. Just a little word of caution, though: The person who is in charge of the investigation or the group of people should be trained in how to do it. Generally, they want to keep their own personal thoughts and observations out of it, because there’s a good chance that this particular document--anything you write down--can be discovered by the other side.
Q. Are there situations where companies might be overreacting to complaints of harassment--by hastily firing employees whose actions were misunderstood?
A. I’ve had many clients who are just “touchy” people and then they get into trouble. Male managers come in, they’ve just been friendly with a female colleague, a peer, it could be a subordinate, and they touch them, they put their hand on their shoulder, or what not, and they get fired. So that’s the extreme an employer will take it to when they get a complaint of sexual harassment.
Q. Suppose an employee has complained to his or her supervisor, but they’re not satisfied with whatever action the company has taken. What should they do next--besides give you a call?
A. If the offensive conduct is not stopped or you really want to pursue action, then there are the statutory methods, through the Department of Fair Employment and Housing or the EEOC (Equal Employment Opportunity Commission). The EEOC is the federal arm, while DFEH (Department of Fair Employment and Housing) is the state arm. The employee would register the complaint with one or both of those departments, which in turn can either investigate the claim or issue a right-to-sue letter. That would be a prerequisite to filing a lawsuit. However, there is a common law right against discrimination under the Constitution, for which you would not need to pursue it statutorily, although you’d lose some of your rights and some of your remedies if you go that route. I generally recommend somebody pursue all options.
One thing I recommend to all clients is that they keep some kind of chronology of what’s happened. Because a year from now, when your deposition is being taken or when you’re going to trial, you’re not going to remember everything. . . . In many cases, it’s real hard for them to relive what happened. Many of them have undergone psychological treatment as a direct result of this.
Q. Do you think the incidence of sexual harassment in the workplace is increasing, or declining?
A. I like to think there’s less actual harassment going on . . . but I think it’s still pretty pervasive. The trend that I see is that sexual harassment is less overt. When I was going through college and law school, at the places I’ve worked, I can tell you it was rampant. But of course I didn’t know what I could do about it. I think women feel like, to get places you grin and bear it.
I would venture to say that there is significantly more harassment going on out there than is being complained about or is being brought to the courts. But I think people feel better if they just talk to someone, to find out if it’s worth pursuing. Then at least they know, and they’re vindicated in their own minds: ‘I know this is something I can pursue but I choose not to spend the time, the money, whatever.’ Litigation is not a pleasant process. It’s emotionally draining, and I can tell you that nine times out of 10, by the time you get to trial the client’s emotional state is far different than it was when they first came in.