Cultural Differences Creating Confusion in Sex-Bias Litigation
It was a big moment for a junior executive with ambition. Debra Douglas, an employee of Hyundai’s American auto sales subsidiary, was having dinner in Seoul with the company’s Korean chairman.
Throughout dinner, the chairman asked her only two questions: Did she wash her husband’s hands and feet? Did she believe in the equality of men and women?
Fast-forward almost two years, to a sexual-harassment and sex-discrimination lawsuit Douglas filed against her employer, Hyundai Motor America in Fountain Valley. She lost the case in a jury trial last week. On the witness stand, Douglas recounted with dismay the chairman’s questioning, as evidence that she had not been taken seriously as a professional.
Experts on Korean culture, however, say the chairman could merely have been trying to get to know Douglas, to establish the kind of personal relationship that is considered essential to doing business in Asia. Or, he may have been trying to learn more about American women.
Defining sexual harassment and discrimination in the workplace is difficult. The U.S. Supreme Court is currently considering the question of what exactly constitutes sexual harassment.
Sexual harassment generally refers to unwanted comments or touching of a sexual nature. Sex discrimination, which the U.S. Supreme Court outlawed in a series of rulings beginning in 1971, is the unwillingness to pay, promote or hire a person based, at least in part, on gender.
Add the element of cultural difference, and the potential for confusion multiplies.
The legal risk of negotiating the gender gap across cultural lines is greater than ever, too. As U.S. women become more aware of their rights, they are filing more harassment and discrimination suits.
In the year after the Clarence Thomas Supreme Court confirmation hearings--where law school professor Anita Hill accused him of sexually harassing her 10 years earlier--American women filed nearly 15% more sex discrimination claims than in 1991; the number of sexual harassment filings during the same period was up 53%, according to the U.S. Equal Employment Opportunity Commission.
Employers pay a price for such claims. In recent months, a La Jolla high-tech manufacturing company was ordered to pay $3.1 million to a female employee who sued, claiming sex discrimination. In courtrooms across the country, jury awards to victims of sexual harassment have been climbing past the $1-million mark. In April, 1992, State Farm Insurance Co. agreed to pay $157 million to settle a 13-year sex-discrimination lawsuit, the nation’s largest award ever in a civil rights case.
Most employers do not insure themselves against sex discrimination or sexual harassment, though that is changing. They rely, in most cases, on a good human-relations department to fix the problem before it gets to court.
American women who work for Asian companies can be especially reluctant to report such problems to their superiors or personnel departments, said Michelle A. Reinglass, a Laguna Hills lawyer who represented Sheila Rae O’Bryen in her sexual-harassment claim against Irvine-based Fujitsu Computer Products of America. O’Bryen accused two supervisors, both of whom were Americans.
O’Bryen blamed one of the supervisors with making her life miserable after she reported the other one’s actions.
“I believe the human-resources element was tainted, just as every other level was tainted by the fact that (the American executives) had to explain things to a foreign counterpart,” said Reinglass, who settled the case in December but is prohibited from talking about the terms. “My perception is that the Japanese people do not appreciate being mired in messy, undignified litigation.”
Douglas, who works in the public relations department at Hyundai, also testified that she found little support when she reported alleged misbehavior on the part of a supervisor. She did not want to be interviewed for this story.
As a result of such lawsuits, Asian companies are particularly interested in some new types of insurance that cover employment claims, said Peter Taffae, a senior vice president with Marsh & McLennan Inc., a Los Angeles-based insurance brokerage. Employment insurance policies have been coming into the market in the last 60 days, he said, to cover wrongful termination, discrimination and sexual harassment.
Such insurance costs $10,000 to $500,000 annually and covers the company for judgments ranging from $1 million to $25 million, Taffae said.
“A lot of Pacific Rim companies,” Taffae said, “are surprised by the litigation environment that exists in the United States.”
The problem is not isolated to Asian companies. But they tend to receive a lot of attention for three reasons, said Tracey Wilen, an Apple Computer executive and co-author of “Doing Business with Japanese Men: A Woman’s Handbook.” Her co-author, Christalyn Brannen, grew up in Japan.
Asian markets have been open to Americans, Wilen said, and the Japanese, especially, are a worldwide economic force. Also, she said, Asia fascinates Westerners because it is so “other.”
Wilen is working on a second book, which would provide advice for women working with or for companies based in Korea, Taiwan, Hong Kong and Singapore.
What unites Asian cultures is the philosophy of Confucius, which has influenced each country in Asia to some extent. In the Confucian system, Wilen said, women have a limited role: “A woman should obey her husband, a youngest child should obey the eldest. A woman’s job is to produce as many sons as possible, and women are treated almost as children.”
Wilen, who is white, has traveled extensively as a supply base manager for Apple’s imaging operations. She said that in Muslim and Latino cultures, it is actually more difficult for American women to find workplace equality: “I find that once you establish yourself with Asians, you are fine.”
Establishing yourself means clearing some special obstacles.
For example, Japanese women routinely quit work when they are pregnant, Wilen said. So, Japanese managers feel it is their duty to be informed about whether a female employee is planning to have children. Legally, American employers are not allowed to make decisions based on these considerations.
The employee, Wilen advises, should acknowledge to the Japanese employer that such inquiries are routine in Japan. Then she should state that she plans on having both a career and a family, if that is how she feels.
Relationships between American and Japanese women working for the same company may be strained, Wilen said. American women are often paid more and have greater responsibility. Managers may ask American women to join their Japanese colleagues in making tea or to arrive early to sweep and dust the office.
Wilen advises American women to refuse duties that make them uncomfortable. “Remember,” Wilen writes, “that working in small but incremental ways is much more effective, in the long run, than bold, onetime stands.”
Another expert, Hugh Leonard, teaches a class at Cal State Long Beach that trains Americans to work with Japanese.
Recently, he had a female executive role-play a meeting with a man who acted the part of the president of a Japanese company. During the business meeting, the Japanese president asked the American executive, “Do you like to cook? Do you like children?”
“She didn’t react well,” Leonard said. “She was ungracious. I told her, ‘If this was a real meeting, you would have lost the $50-million contract.’ She said, ‘We need more training.’ ”
More often, Leonard, who was a Catholic priest in Japan for 17 years, teaches Japanese managers about doing business in the United States.
“It’s a tough routine,” he said. “They get here, they have to learn the local geography, and they have to adjust to a multicultural work force.”
Most Japanese managers, he said, are stationed only three to five years in the United States. For many, it is their first overseas assignment.
That puts them in an awkward position, said Patti Hirahara, an American who has worked for several Japanese companies doing business in the United States. The new Japanese managers misinterpret American displays of confidence.
The managers often “have never supervised anyone in their life,” she said. “They’re in a new country with new customs, and they have people working for them who say they know everything.”
Hirahara, president of her own company, Productions by Hirahara in Anaheim, said she did what she could to fit in when she worked for Japanese companies in the past--including serving tea.
She worked late night hours, to coordinate with Tokyo time, even though that meant being in a dangerous Hollywood neighborhood at night. And she learned Japanese.
She said she has learned so much working for the Japanese that she would not trade her experience.
“If you can prove yourself, they’ll give you the promotion,” Hirahara said. “It’s not a question of whether you’re a woman.”
Others find negotiating the culture gap and gender gully more difficult. Patty Schnegg, president of the Southern California Women’s Law Center, said that since November, three American women who work for Asian companies have come to her law office to ask about their rights.
They were all unwilling to bring lawsuits at this time, Schnegg said, but she believes that is because jobs are so scarce in Southern California.
“I haven’t seen such interest before,” Schnegg said.
More Women, More Lawsuits
There may be a correlation between the higher numbers of women in the workplace and the number of sexual harassment and discrimination cases. In the last five years, more than 3 million women have been added to the work force, and 91% more sexual harassment cases have been filed.
More Working Women
Since 1974, the number of women in the workplace has jumped by 57%. However, since 1989 the pace has slowed.
More Complaints
Harassment complaints increased 3,618 in 1992, the year after the Clarence Thomas-Anita Hill controversy. In number of cases filed nationally:
1988: 5,499
1989: 5,623
1990: 6,127
1991: 6,883
1992: 10,501
Discrimination
Sex discrimination is the unwillingness to promote or hire a person based, at least in part, on gender. Even though the Supreme Court began outlawing the practice in 1971, nearly 150,000 cases have been filed nationally in the last five years.
1988: 29,210
1989: 28,325
1990: 28,380
1991: 29,747
1992: 34,226
Sources: Equal Employment Opportunity Commission; U.S. Department of Labor Bureau of Labor Statistics; Researched by DALLAS M. JACKSON / Los Angeles Times
