Employing New Standards on Harassment

Mary Cummings, the lone woman on a maintenance crew at a South San Francisco hospital, filed a sexual harassment complaint after enduring what she described as 15 years of unwanted sexual advances, verbal abuse and even sexual assault at the hands of her boss.

The payback? Cummings’ boss assigned her to menial tasks, colleagues refused to work with her and, she said, almost every day somebody went to management to bad-mouth her performance.

Cummings’ story reflects why so many targets of alleged sexual harassment balk at coming forward with their grievances while still on the job: They fear retaliation. Experts say these workers often are ostracized, demoted or fired.

Two sweeping U.S. Supreme Court decisions handed down June 26 challenge that sorry fact of workplace life. Legal authorities say the high court’s decisions now place an added burden on employers to try to prevent sexual harassment by, among other things, allowing workers to file complaints without the threat of retaliation.

At the same time, the justices raised the stakes for victims of sexual harassment who fail to complain. The court ruled that employers can shoot down sexual harassment lawsuits if the workers had fair opportunity to alert their supervisors of the problems but never did.

The justices’ instructions aim to resolve sexual harassment problems in the workplace instead of the courtroom. But the history of sexual harassment litigation demonstrates there are enormous obstacles to achieving the high court’s goal.

Employers have wrestled with the problem for years, trying to devise systems that encourage harassment victims to come forward and protect them when they do. The results have been imperfect at best.

The obstacles are painfully evident even in California, a state that could serve as a laboratory for the rest of the nation. Since 1984, California law has explicitly required that employers establish effective harassment-prevention programs and complaint systems.

Yet Californians who complain “are still ignored, retaliated against and forced out of their jobs,” said Phil Horowitz, a labor attorney in San Francisco.

Horowitz said the high court’s decisions will make employers more vigilant in policing sexual harassment, but they do not provide “a quick fix.”

Some management lawyers and corporate executives express a very different concern: They fear that the Supreme Court rulings will trigger an avalanche of new complaints and lawsuits, including bogus claims that will unfairly tarnish the reputations of those accused. Still, women’s advocates point to research showing that a far bigger problem has been that so many victims of harassment must suffer in silence.

In one study, the National Organization for Women found that 90% of women who said they suffered sexual harassment on the job did not report it.

Likewise, roughly 90% of all female police officers experience some form of harassment, yet just a fraction lodge complaints, said Penny Harrington, a former Portland, Ore., police chief and now director of the National Center for Women in Policing.

Recently, advocates for women at the Los Angeles Police Department claimed that female officers who complain about sexual harassment are subjected to a range of retaliation--including death threats from fellow officers.

The calculation that many targets of harassment apparently make is that filing a complaint just isn’t worth the consequences. “The fear factor is always there,” said Carla Barboza, a Los Angeles lawyer who represents workers in employment disputes.

Patricia Shiu, an attorney with the Employment Law Center in San Francisco, a group that represents low-income women in harassment suits, said some women find it more “prudent” to tolerate the harassment than risk losing their jobs.

“For some women, it’s a bread-and-butter issue,” Shiu said. “If they complain and they’re out of a job, they cannot feed their families.”

Debra Tudor, 45, of San Francisco said she found herself facing that dilemma while employed in a male-dominated workplace for 12 years. The job was with a Bay Area elevator company where she worked as a $40-an-hour mechanic.

Tudor said she encountered lewd remarks, received undesirable job assignments and, on one occasion, was grabbed and kissed by her boss in front of co-workers.

Not until the company laid her off in 1992 did Tudor feel comfortable filing a federal discrimination suit, alleging years of harassment. Tudor, a single mother, said she didn’t want to file a suit before then because she feared retaliation.

“I needed a job to support two teenage daughters in high school,” she said. “I didn’t want to rock the boat and lose my job.”

The case was settled when her former employer agreed to pay an undisclosed sum.

Cummings, the South San Francisco hospital worker, received a confidential settlement too. But her old employer, Kaiser Foundation, maintains it always treated her fairly.

Donna Rutter, a San Francisco attorney who represented Kaiser, said the hospital “responded quickly” after Cummings, whose duties ranged from changing lightbulbs to unclogging toilets, complained in the mid-1980s that her co-workers were “telling off-color jokes and hanging offensive pictures.”

“Human resources went in, did training of employees and managers, and the [misconduct] went away,” Rutter said. “If this was such a hostile environment, then why did she work there for 15 years?”

But a San Francisco jury, while rejecting the sexual assault claim, still found that the hospital discriminated against Cummings and ordered it to pay her $850,000. In effect, the jury found that even a large organization with an official complaint-reporting system could fail to protect a worker who lodges a grievance.

After Kaiser vowed to appeal, Cummings, now 45, agreed to the undisclosed lower amount.

For employers in California and elsewhere, “zero-tolerance policies” that provide explicit complaint procedures were becoming widespread even before the recent Supreme Court rulings.

At Puget Sound Energy in Bellevue, Wash., employees are urged to report any misconduct to a supervisor or the company’s human resources department.

Employees who violate the company’s four-page anti-harassment policy could face dismissal.

“It doesn’t take many examples of [employees] losing their jobs over harassment for the rest of the organization to believe that we mean what we say,” said Dorothy Graham, a Puget Sound Energy vice president.

She said the company is reviewing its policy and training programs to ensure that they square with the recent court rulings.

Some employers also are establishing hotlines to encourage aggrieved workers to file complaints--and to be able to show the courts, if necessary someday, that they have set up legitimate complaint procedures.

Laguna Niguel-based TR Anton Inc., a human resources consultant and management firm, operates “Harassment Hotline” for its client companies. It’s an 800 number that workers can call to report sexual harassment and other problems.

Calls are taken by an automated system that guides workers through a standard list of questions and records their answers. The information is turned over to the workers’ employers so they can launch investigations.

George E. Howes, president of TR Anton, said the advantage of an outside hotline is that employees prefer talking to a third party “because they feel they have someone in their corner, as opposed to going to a member of management who, in some cases, they feel may be biased.”

Still, Howes acknowledges that the integrity of the system rests on how employers respond after receiving complaints via the hotline.

“If a manager chooses to be intimidating and hostile, or aggressive and angry, there’s no system in the world that’ll stop that,” he said.

Experts say that to be sure of meeting legal requirements, employers should ensure that it is easy for alleged targets of harassment to make complaints. What’s more, they must respond swiftly to them.

The procedures should also allow employees to bring forward witnesses and documents supporting their claims, lawyers say. Employees filing complaints should be told what the company concludes and, if they are dissatisfied, be given an opportunity to appeal without going outside the organization.

Whatever form the emerging complaint procedures take, advocates for victims of sexual harassment say society will benefit if there is a safe way for workers to come forward.

In the long run, “the incidence of harassment goes down when you put in place good policies and you train employees” on such issues as how they can file complaints at their company, said Beth H. Parker, litigation director for Equal Rights Advocates, a public interest law firm specializing in gender issues.

The hope, she added, “is that it will prevent harassment in the first place.”

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Tips for Employers

Handling sexual harassment complaints:

* Make sure the complainant is comfortable with the person handling the case and believes that he or she will be fair.

* If some facts are unknown or in dispute, launch an internal investigation.

* Decide whether the accused should be reassigned or placed on leave during the investigation to avoid retaliation.

* Do not guarantee secrecy to the complainant. Instead, explain your procedures. Those procedures should limit dissemination of the information about the complaint to those with a genuine need to know and also should provide safeguards against retaliation.

* During investigations, ask simple questions to elicit facts (who, what, when, where and why) rather than opinions or guesses.

* Identify witnesses to interview and documents to review. To safeguard confidentiality, limit interviews to those witnesses genuinely needed to corroborate information.

* After conducting your investigation, provide the complainant and witnesses the opportunity to provide more information.

* Remember that it might not always be possible to determine what really happened even after investigating the complaint. Still, make a reasonable conclusion after conducting a fair investigation.

* If you conclude that sexual harassment occurred, take appropriate steps to correct the situation and to discipline the harasser.

* Establish an internal appeals system to give the claimant or the accused the opportunity to have your initial finding reviewed.

Source: Curiale Dellaverson Hirschfeld Kelly & Kraemer, a Los Angeles management law firm