Complaints of Sex Harassment Decline in State
After five years of explosive growth triggered by the Clarence Thomas-Anita Hill hearings, complaints of sexual harassment--one of the most vexing workplace problems of the ‘90s--are tapering off in California.
Certainly sexual harassment remains a thorny issue--it is still the most frequent type of employment discrimination charge brought by workers in California.
But the number of sexual harassment allegations filed with the state Department of Fair Employment and Housing dipped 3% in the last fiscal year, to 4,530, ending more than a decade of consecutive increases, including 20%-plus jumps in each of the preceding years.
Records at the federal Equal Employment Opportunity Commission’s offices in California, where fewer complaints are lodged, show a corresponding decline.
“I think people have gotten much more careful--employers, employees, fellow workers,” said Alex Kozinski, a federal judge in Pasadena who has studied the issue. “People sense the danger. They’ve modified their behavior.”
Not all analysts shared that assessment. Though most agreed that all of the seminars and workshops held by employers in recent years were paying off, some attributed the complaint drop-off to such factors as changing court decisions and reluctance of women to file charges.
“It’s a little too early to say things are better,” said Susan Webb, a noted consultant who has been tracking sexual harassment complaints in California and elsewhere since 1980. “But maybe,” she added, “maybe we’re moving faster than I think.”
It was five years ago this month that law professor Anita Hill seared the phrase “sexual harassment” into the nation’s consciousness. Her testimony during Clarence Thomas’ Supreme Court confirmation hearings had the nation riveted to the television. It not only raised awareness of the problem but emboldened many women who had quietly endured harassment to raise their voices.
Few experts had expected sexual harassment complaints to plateau quite so soon, figuring it would take more time for employers and employees to adjust to new workplace sensitivities. Some raised the possibility that California’s recently improved economy may have contributed to the diminished cases because workers generally file fewer grievances when times are good.
But as the number of sexual harassment complaints dropped, the state’s overall employment discrimination caseload rose 7% in the fiscal year ended June 30, with charges based on race, religion and physical disability each showing a sizable increase.
Moreover, a variety of companies in the state say they are seeing fewer sexual harassment accusations brought to their personnel departments, where workers are far more likely to take their complaints than government agencies.
“There definitely is a decline in ‘96,” said Jose De Anda, human resources manager for Kaiser Permanente in Southern California.
Like most organizations, Kaiser refused to disclose statistics on harassment allegations filed internally. But records at the state employment agency indicate that Kaiser’s operations statewide faced 15 formal sexual harassment complaints in the last fiscal year, down from 25 and 27 in the preceding two years.
(As is typical, most of the Kaiser workers who filed complaints asked the state agency for a right-to-sue letter, which is automatic, so it is difficult to assess their claims unless settlements are made public or suits are filed.)
Frank Cronin, an Irvine labor attorney who represents management and has tracked sexual harassment cases, sees the number of such lawsuits stabilizing.
“It seems to be flattening out,” he said.
Some lawyers suggest that is partly because California juries have become more stingy in awarding large punitive damages in sexual harassment and other employment discrimination cases. That could be discouraging some people from filing, and attorneys from taking on cases.
In the last year, for example, median punitive damages in employment cases dropped to $67,500, down sharply from $400,000 or more during most of the ‘90s, according to Orrick, Herrington & Sutcliffe, a San Francisco firm.
In addition, courts in California have moved to expand liability for sexual harassment beyond companies to individual managers. Perhaps the most noteworthy example was the 1994 jury verdict involving Rena Weeks, a secretary for the law firm Baker & McKenzie.
After Weeks alleged that her boss repeatedly harassed her and once grabbed her breast while pouring M&Ms; down her blouse pocket, the firm was hit with $7 million in punitive damages. But the jury also found her boss, lawyer Martin Greenstein, personally liable for $225,000. The case is currently on appeal, but other subsequent, less-publicized cases and appellate decisions have made it clear that harassment claims present personal financial risk to managers.
That is significant because most accusations of sexual harassment are filed by women against male supervisors. Bosses can be liable for making outright demands for sex or if they create a hostile environment by repeatedly making offensive remarks or jokes, by illicit touching or by leering.
Employers also can be held responsible if they do not immediately deal with employee complaints about harassment by co-workers or even vendors.
“Employers’ sensitivity to sexual harassment is clearly at an all-time high,” said Jeff Wohl, a labor specialist at Orrick, Herrington & Sutcliffe.
While agreeing that employers have made strides, Dona Bertain, a Chico consultant who has been investigating sexual harassment complaints for companies since 1990, offered a different explanation for the complaint drop.
“Many women have found that it’s just not worth it to file a complaint,” she said. First, they face delays before government investigators can get to their cases. And in the meantime, she said, some employees have been ostracized in the workplace or passed over for promotions because they are immersed in controversy.
Gina de Mirando, 43, a former employee at Ingram Micro, a major computer products distributor in Santa Ana, said that is what happened after she complained about a male worker who allegedly made bawdy remarks and kept nude female photographs.
“The more I sought help, the worse it got,” she said in an interview. “The company didn’t like ‘difficult’ people or people making waves.”
In June, de Mirando filed a sexual harassment and wrongful termination lawsuit against Ingram, naming the male worker, an outside contractor and two senior managers as defendants. “This has been a horrifying experience for me,” she said.
David Dukes, co-chairman of Ingram Micro, declined to comment on de Mirando’s case or two other pending sexual harassment lawsuits--which he said are the only ones the firm has had in three years, even though the company has nearly doubled its employment during that time, to 2,700.
However, Dukes said that over the last two years, the company has sent its managers to a four-hour sexual harassment workshop that includes video instruction, role playing and group exercises on recognizing subtle forms of the problem and how to confront and manage it.
Dukes said there is no formal training program for non-managers, though the issue is discussed during orientation and made clear in the employee handbook.
“We take sexual harassment very, very seriously here,” Dukes said.
Like many other companies, Pacific Gas & Electric saw an upsurge of sexual harassment complaints in the early 1990s. Last year, the firm launched a voluntary training program on harassment. So far, some 3,000 of its 21,000 employees have taken the training, which is a full day for supervisors and four hours for other employees.
The company would not talk about harassment grievances filed internally, except to say that it was “down slightly.” Records with the state show that only one employee lodged a formal complaint against Pacific Gas in the 12 months ended June 30, compared with more than a half-dozen cases in each of the preceding three years.
But that one complaint may have been a costly one to Pacific Gas. A female instrument technician alleged that she had faced a constant barrage of crude sexual remarks and verbal abuse over several years from managers and male co-workers. Pacific Gas declined to comment but confirmed that the case was settled recently for an undisclosed sum.
Fred Ashley, a Laguna Niguel mediator, says he still sees a large volume of sexual harassment cases. But what has changed, he says, is how employers generally are reacting to them, which could be helping to turn the tide.
“If anything, I see employers are becoming better educated and more inclined to take prompt action,” Ashley said. “They’re addressing the problem of sexual harassment before it blows up.”
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Complaints Level Off
Sexual harassment became the workplace problem of the ‘90s. But with employers providing more training to managers, the caseload has hit a plateau. Below are the numbers of sexual harassment allegations filed with state and their percentage of all employment discrimination cases:
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Allegations % of all cases 1989-90 1,469 17.7% 1990-91 1,745 16.5% 1991-92 2,255 18.3% 1992-93 2,776 21.0% 1993-94 3,513 22.6% 1994-95 4,684 29.2% 1995-96 4,530 26.7%
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Lower Jury Awards
The days of whopping punitive damages in sexual harassment and other employment discrimination cases appear to be over. Median punitive damages in all employment discrimination verdicts in California:
1996*: $67,500
*Through September
Sources: California Dept. of Fair Employment and Housing; Orrick, Herrington & Sutcliffe LLP
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Fewer Harassment Complaints
In 1995/96, sexual harassment complaints declined 23% and 6% in Orange and Los Angeles counties, respectively. The trend in complaints filed:
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Orange Los Angeles 1991/92 196 443 1994/95 489 1,233 1995/96 375 1,161
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Source: California Department of Fair Employment and Housing
