Thousands of sexual harassment lawsuits in California could be in jeopardy under an imminent ruling that may protect employers whose supervisors prey on subordinates.
Business groups have asked the California Supreme Court to change the state's sexual harassment law and shield conscientious employers who were unaware of a supervisor's misconduct because the victim failed to follow company procedures and complain.
California now has one of the strongest sexual harassment laws in the nation. Any employer, no matter how small, is automatically liable for monetary damages if a supervisor harasses an employee.
Employer groups complain that the law fails to distinguish between employers who have strong policies to deter sexual harassment and those who ignore the problem.
"In my experience, the run-of-the-mill case is that the employer does not know that someone is being harassed by some rogue supervisor," said Greg Richardson, a lawyer who represents employers in the case.
The state high court will hand down its ruling in the next few weeks in a lawsuit brought by a woman who said she endured two years of leering, touching and propositioning from her boss before hiring a lawyer and reporting the problem to her employer, the state Department of Health Services. The state argues that it could have stopped the harassment sooner if the employee had followed internal procedures and complained.
But Theresa McGinnis, 37, said she wanted to try to handle the situation herself. She said she assumed nothing would be done because another female worker had complained about the supervisor previously, and he was not disciplined.
Taking matters into her own hands, she would warn her boss to "knock it off" or watch his hands, she said. She complained to a co-worker and to her husband. At one point, her husband even confronted her boss.
"I knew it wasn't right, but I just expected it to stop," said McGinnis, who was a contract manager in a fiscal management unit. "I would dodge him as much as I could outside scheduled meetings."
Employer groups are calling on the state high court to adopt a rule that has been followed in federal cases since 1998. It protects employers who maintain strong policies against sexual harassment from lawsuits by employees who failed to report a supervisor's misconduct promptly.
But surveys and laboratory studies of sexual harassment victims have found that filing a formal complaint is what a victim is least likely to do.
Harassed workers are reluctant to come forward because they fear ostracism by co-workers or retaliation, the studies show. Two federal surveys in 1988 and 1995 found that only 5% of victims filed an internal complaint with their employer.
"It is very uncommon for people to complain immediately, even if they are raped or assaulted," said Hofstra University law professor Joanna L. Grossman, an expert on sexual harassment and the law.
By making employers automatically liable for their supervisors' actions, state law now gives companies an incentive to deny that harassment occurred, employers argue. They also contend that new rules are needed to prod victims to come forward before misconduct rises to the level of harassment. They complain that victims now have an economic incentive for not reporting promptly: The longer the harassment, the greater damages the victim may eventually recover in court.
Suits filed under the state law typically name both the harasser and the employer, but the employer usually winds up paying most of the monetary damages.
"Everywhere, sexual harassment should be eradicated," said Deborah Saxe, a Los Angeles lawyer who defends employers. "That is the goal. The goal is not to provide opportunities for lawsuits."
The federal rule that protects employers applies only when the worker has suffered no loss in job status. To win on federal claims, the employer must show that it took care to prevent and correct harassment, and that the victim failed to take advantage of a complaint system or other corrective opportunities.
The rule, crafted by the U.S. Supreme Court, already has led to the demise of many federal sexual harassment suits.
In a decision last month, a federal appeals court in Atlanta ruled that an employer could not be sued by a woman who claimed her supervisor had raped her because she had waited two months to report it and had not taken enough actions to avoid him. The company fired the supervisor after learning of the allegation.
A federal district court in Illinois also relied on the 1998 precedent when the court threw out a workplace lawsuit because the worker waited eight days to report the harassment.
The woman contended that her supervisor had harassed her from the day she was hired until she quit eight days later. The company had in force a strong policy against harassment and a formal complaint procedure.
On the day before she quit, the executive director of the company asked how she was doing. She had replied, "Fine." The court reasoned she should have spoken up then.
Sexual harassment lawsuits are commonplace in employment law. Their numbers rose sharply after Anita Hill testified in 1991 that Clarence Thomas, now a U.S. Supreme Court justice, made inappropriate sexual comments to her in the federal agency where they worked.
From 1992 to 2000, sexual harassment complaints to a federal anti-discrimination agency, a prerequisite before filing suit under federal law, rose by 50%, to 15,000. Complaints of other kinds of discrimination, such as that based on race or religion, increased only 3% during that period.
Claims vary widely, from complaints about a supervisor who looks at pornography on his computer in view of his secretary to charges of rape.
"I do only employment law," said Richardson, whose firm handles employment cases across the nation, "and it seems about a third to half the cases that cross my desk are some type of harassment case."
The case before the California Supreme Court stems from two lawsuits filed against the state Department of Health Services by McGinnis and another woman who alleged they were harassed by their boss from 1995 to 1997.
Cary Hall, the women's supervisor, had worked for the state for 22 years. He retired as a supervisor in the fiscal management unit after the department investigated the women's allegations and found them to be truthful. A lawyer for Hall declined to comment on the case or to make her client available for an interview. Hall denied wrongdoing during the investigation.
McGinnis said Hall would tell her, "Good morning. You look gorgeous today." Or, "Come here and let me spank your tush." Or, "Let me touch it," "Let me see it," "Let me feel it," referring to her crotch.
She said that one evening when she was working late, Hall called her into his office. He told her he would excuse her absences and tardiness if she would let him touch her, she said.
She said he then blocked the door so she could not get out and grabbed her crotch. She pushed him away and ran out, she said.
Denise Cervin, 45, an account clerk who shared the same supervisor, reported similar conduct, but also failed to report him for two years. In the fall of 1997, Cervin said, she decided she could no longer work for Hall.
Cervin complained that Hall would look at her from the chest down during meetings, at times gazing at her crotch. She said she would tell him, "Cary, I am up here, not down there."
During their last meeting in his office, she said, she had reached down and scratched her leg. Hall asked if he could scratch it for her, she said.
"I just had it with him," Cervin said. "He wouldn't let me leave his office. I told him I had to go to the ladies room, and he wouldn't let me."
She went home and told her husband she would not go back. She saw her physician the next day, and she said he told her to contact a lawyer and get some counseling. She then called McGinnis and asked her also to come forward.
Represented by the same lawyer, the two women complained to the agency two years after they say they were first harassed. The agency investigated, concluding that there was "reasonable cause to believe that the accused committed the alleged acts (sexual advances, leering and touching), made the alleged derogatory and sexual comments to the complainants, and sexually harassed at least two other witnesses in a similar office."
Cervin and McGinnis continue to work for the state agency as they pursue their lawsuit. Two lower courts have denied the state's request to present a defense based on its sexual harassment ban and the women's failure to make timely complaints.
Christopher Whelan, who represents McGinnis and Cervin, said he can show that they behaved reasonably in not filing a report earlier: Nothing had been done when a previous employee had complained of being sexually harassed by Hall. The investigation had been dropped when the woman left the department, he said.
McGinnis and Cervin have received psychological counseling, but both bear scars of the experience.
McGinnis appears angry. She said she has a daughter, and doesn't want her daughter one day to experience what she went through.
Cervin said she is no longer the same woman. She doesn't trust men. She is frightened of them, and her fears have affected her relationship with her husband, she said haltingly.
She said her doctor told her: "You have to get beyond that, because men are going to look." But she expressed uncertainty on whether she will ever recover.
"You're never the same," she said, her face wet with tears and streaked with mascara.