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  READ THE CHAT
Employment-law attorney and author Anne Covey joined us for a CNN.com/career chat, talking about sexual harassment in the workplace -- how to try to prevent it and how prevalent it is today.
Read the transcript.

State of the workplace

Sexual harassment: Serious, subtle, stubborn


In this story:

Level but persistent

Immigrant complaints rising

Troubling definitions

Conduct unbecoming

Channels of communication

Eye of the beholder

Accused who feel abused

The dating game

RELATED STORIES, SITES icon



(CNN) -- "He'd say, 'Why don't you come join me in the back of my truck?' He'd insinuate things. In the morning meetings: 'It's a 40-percent chance of rain today, so that means a 40-percent chance I'll get (oral sex) in the back of my truck.'"

Thirteen years after Beth Ann Faragher says she heard those lines as a beach lifeguard from a supervisor, they played a part in a landmark Supreme Court decision -- one that says employers always are potentially liable for supervisors' sexual misconduct toward an employee.

  CORPORATES COPING
A survey of human resources professionals indicates that larger companies are likely to do more to prevent sexual harassment -- and to deal with it when it happens -- than small companies.
Click here.

But two years after that decision -- and nine years after the Clarence Thomas-Anita Hill hearings focused unprecedented attention on the subject -- sexual harassment remains a potent concern in the American workplace.

•  August 4: The United States Equal Employment Opportunity Commission (EEOC) announces the $500,000 settlement of a sexual harassment lawsuit against Burt Chevrolet and LGC Management of Colorado. The suit was brought on behalf of 10 former salesmen who alleged persistent same-gender sexual harassment by male managers.

•  July 28: A secretary is awarded $235,000 by a Miami jury that decides she was fired in retaliation for bringing sexual harassment charges. Sherry Rossbach accused Michael Band, former chief of the major crimes unit in the Miami-Dade prosecutor's office, of a decade of harassment, including grabbing her breasts after a Christmas party.

•  July 21: A federal jury orders a Hooters restaurant in Newport, Kentucky, to pay $275,000 to a former waitress who says she was the target of her managers' unwanted sexual advances and was threatened with being tied up. The owner of the Hooters, Upriver Restaurant Joint Venture, says the company will appeal.

One of the supervisors "made comments about me almost immediately. About body parts, wanting to date me."
— Beth Ann Faragher, former Boca Raton lifeguard

Some say progress is being made. "We're finding that more of these cases have merit," says David Grinberg, a spokesman for the United States Equal Employment Opportunity Commission (EEOC). "We're collecting more money for victims of discrimination."

But others say the perception is greater than the problem: "The fear is much worse than the reality," says Dennis M. Powers.

He's the author of "The Office Romance: Playing With Fire Without Getting Burned" (AMACOM, 1998). Powers teaches business law at Southern Oregon University in Ashland. "All the statistics," he says, "show that men and women are getting along much better in the work force."

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Level but persistent

The rate of sexual harassment complaints filed with the EEOC has remained almost constant in each of the past five years, with 15,549 filed in fiscal 1995 and 15,222 last year -- a 1.5-percent decline.

"He would make comments about the size of my breasts. He would make comments about my legs. He would invite me to shower with him after a morning workout."
— Beth Ann Faragher, former Boca Raton lifeguard

The EEOC was established by Title VII of the Civil Rights Act of 1964, which establishes federal laws prohibiting employment discrimination "based on race, color, religion, sex, or national origin."

A leveling-off of EEOC sexual harassment complaints must be considered in the context of nearly full employment in the United States, Powers says. "We're starting to move away from the reign of fear that was clearly evident five years ago."

But bigger-than-ever payments in sexual harassment settlements and court cases still have many employers and employees worried about workplace behavior.

In 1995, the EEOC obtained $24.3 million in settlements. That figure more than doubled last year to $50.3 million, even with the slight decline in cases filed.

Defendants on the losing end of cases that go to trial are paying more because a 1991 amendment to the Civil Rights Act allows plaintiffs to collect punitive and compensatory damages of up to $300,000. Previously, they could only collect back pay, Grinberg says.

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Immigrant complaints rising

One exception to the generally flat incidence of complaints is in allegations of harassment of immigrant women. Grinberg says that in 1991, the EEOC reviewed 157 charges based on national origin. In 1999, there were 382 such complaints.

Indeed, in June, the EEOC announced the $1 million settlement of a class-action lawsuit brought on behalf of 22 Hispanic women against Grace Culinary Systems Inc. (a wholly owned subsidiary of W.R. Grace & Co.) and Townsend Culinary Inc.

"These women often don't know where to go, speak little English, fear retaliation if they do file a complaint and are supporting entire families. It's the most vulnerable section of the workplace."
— David Grinberg, U.S. Equal Employment Opportunity Commission

It was alleged that the women, working at a food-processing plant in Laurel, Maryland, were groped and pressured for sex. When they refused to comply with explicit requests for sexual favors, managers and male co-workers allegedly assigned the women menial and difficult jobs, demoted or fired them, and in one case locked a woman in a freezer. Grace operated the plant until March 1996. Townsend then bought it and operated it until it closed in April.

"There are some really bad employers out there taking advantage of these women," Grinberg says. "These women often don't know where to go, speak little English, fear retaliation if they do file a complaint and are supporting entire families. It's the most vulnerable section of the workplace."

graphic

Troubling definitions

In cases like that of the Maryland food-processing workers, it's hard to think that the alleged offenses wouldn't be recognized as inappropriate behavior, even by those said to have perpetrated them. But in the arena of sexual harassment, a lot of complaints aren't so cut and dried.

"I tried to avoid him. Basically, I'd wrap up in a towel and wear an old, smelly T-shirt. I thought maybe if I cover up, I can avoid this type of thing. I'd back myself into a corner at the morning meetings to avoid him being able to get around the back of me."
— Beth Ann Faragher, former Boca Raton lifeguard

What's considered innocuous or amusing by one person may be perceived as harassment by another. That leaves some workers wondering if they risk professional suicide if they compliment a co-worker, flirt or ask for a date.

"This is probably one of the most difficult areas of the law because we all come from different backgrounds," says Anne Covey, an attorney in Pennington, New Jersey. Covey represents management on a national basis in labor and employment law. Her new book, "The Workplace Law Advisor," is scheduled to be released in November by Perseus Publishing.

"You've got people who communicate by touching," Covey says. "We don't look at that as bad except for those people who say, 'This is an invasion of my privacy and space and I'm very offended.' We really have to keep looking at the world through somebody else's perspective."

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Conduct unbecoming

The law recognizes two types of sexual harassment.

  WHEN MEN FILE CLAIMS
Complaints of harassment filed by men are on the rise. And in one high-profile case, the issue was male-on-male discrimination.
Click here.

•  The first falls under the category of quid pro quo, or one thing in exchange for another. A person in authority demands sexual favors of a subordinate as a condition of getting or keeping a job or benefit. Allegations of such incidents account for only 5 percent of sexual harassment complaints filed with the EEOC in recent years, Powers says in his book.

•  The second type, normally referred to as a "hostile environment" scenario, occurs when verbal and/or physical conduct creates an intimidating or offensive atmosphere. Covey says the behavior in question must be shown to be not only sexual, but also severe and pervasive, offensive and unwelcome -- the last criterion being a subjective consideration on the part of the person on the receiving end.

Indirect harassment can be alleged. If employees are talking to each other in crude terms and within earshot of somebody who's offended, that person could make a complaint of sexual harassment, Covey says.

"An employee does not have an obligation to walk up to you and educate you about your behavior that they find to be inappropriate."
— Anne Covey, employment law attorney

And it's incorrect to think that someone offended by certain behavior must confront the perpetrator in order to mount a viable complaint. Covey says the offended worker need only tell a supervisor or manager.

"An employee does not have an obligation to walk up to you and educate you about your behavior that they find to be inappropriate," she says.

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Channels of communication

Office e-mail is a relatively new form of work communication that companies and employees must use carefully.

"Have a separate electronic communications policy," Covey advises employers. "Let your employees know what you expect for company purposes."

Sexual harassment complaints often occur because a company's managers don't resolve a problem when it first arises, Covey says. Sometimes those managers are uneasy because they once were peers of the people they now supervise.

"They still don't feel comfortable, and they haven't been given the tools to know how to direct the employees," Covey says. "When they don't take any corrective stance, that's when inappropriate behavior rises to sexual harassment."

graphic

Eye of the beholder

Reasonable people can honestly disagree, of course -- and often they do -- on what's sexually offensive behavior.

And it's not just employees who disagree. Attorneys and judges do, too.

"Other than these two men, it was a great job. I didn't think I should let these two people control my life to the extent that I quit."
— Beth Ann Faragher, former Boca Raton lifeguard

Two recent federal courts reached opposite conclusions despite similar circumstances, Covey says. One decision said that in a blue-collar environment, a certain amount of vulgar language is to be expected, so the standard for finding harassment should be different than that applied in a white-collar setting. The second court's decision said the standard should be the same, no matter where one works.

Covey says having a racy magazine or even a photo on a desk of a girlfriend or wife in a bikini could be grounds for sexual harassment. "You wouldn't allow somebody in a bathing suit to be in the office. So I don't think the picture is appropriate either," Covey says. Sexy computer screen savers, she says, can also pose problems.

Powers, however, sees it differently. Looking at a risque magazine is not, in and of itself, sexual harassment, he says. But he doesn't recommend making an issue of doing this if a co-worker objects.

  ARE YOU WORRIED?
Can you ask a co-worker out? Can you tell her you like her dress? Can you tell him you like his trousers? Can you tell when admiration becomes adversarial?
Click here.

Sexual harassment law is rife with such gray areas. Powers tells a story related by one of his students. A group of men and women worked together in a real-estate office. They often told ribald jokes. They all enjoyed these jokes. But a new employee joined the group and found the humor offensive. Was this sexual harassment? -- a tough call, Power says.

In such cases, Covey says, litigants can end up saying, "'Just because you think the behavior is OK, we don't look at sexual harassment from your perspective,'" Covey says.

The bottom line is that to understand where problems can arise, we all "really have to keep looking at the world through somebody else's perspective."

"Men who have been unlawfully terminated have filed so many wrongful-termination lawsuits that companies being besieged from both sides are being forced to be more accommodating to both sides."
— Dennis M. Powers, author, "The Office Romance"

And that's easier said than done. At harassment seminars she presents around the country, Covey says she finds that some workers resist her.

"There's a real strong stance to say, 'I don't want to be told what to do,'" she says. "'I don't care what you tell me. I'm still going to do it.'

"They know the difference between right and wrong and what's acceptable and not acceptable, and they just choose to do otherwise," Covey says.

graphic

Accused who feel abused

What Covey is describing is a kind of backlash that she and Powers say has spilled over into courthouses.

"Men who have been unlawfully terminated have filed so many wrongful-termination lawsuits that companies being besieged from both sides are being forced to be more accommodating to both sides," Power says.

  RUNNING A CLEAN SHOP
Employers can be held liable for sexual harassment in their workplace. Specialists say employee education is the key to avoiding problems.
Click here.

One of the best known of these cases involved a Miller Brewing Company executive, Jerold J. Mackenzie, who was fired in 1993 from his $95,000-per-year job after he discussed a "Seinfeld" episode with a female co-worker. The episode dealt with Jerry Seinfeld's on-air character's inability to remember a woman's name he dated. He knew it rhymed with a female body part. It turned out her name was Dolores.

When dismissed by Miller Brewing for "poor managerial judgment," Mackenzie sued, and a jury in Milwaukee awarded him $26.6 million in 1997. The beer maker appealed, and the judgment was reversed. Covey says the executive has appealed to the Supreme Court.

"It was never about the money for me. It was to prevent it from happening again, and to make a point. Hopefully, it helps employees now who are coming upon the same situation. Hopefully, there are now better policies and procedures in place and people are more clued in as to what's allowed in the workplace and what is not."
— Beth Ann Faragher, former Boca Raton lifeguard

There's been a rising number of sexual harassment complaints in which the EEOC has concluded there was "no reasonable cause" to support charges. In 1995, the finding was issued in 30.4 percent of the cases filed with the agency. By 1999, that figure had risen to 44 percent -- the fourth year "no reasonable cause" findings have gone up.

Nearly one-third of sexual harassment complaints reviewed by the EEOC last year resulted in "administrative closure" -- meaning that complaints were closed for technical reasons, such as the failure of the complainant to respond to EEOC communications.

"It's possible there may be some confusion as to what constitutes sexual harassment and what doesn't," says the EEOC's Grinberg.

Still, he says, if 44 percent of sexual harassment cases reviewed are ruled "no reasonable cause," that's less than the 60 percent of discrimination cases of all types that end in such a finding. And he says that sexual harassment complaints deemed by the agency to have reasonable cause have more than doubled -- from 3.3 percent in 1995 to 7.1 percent in 1999.

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The dating game

Only a small percentage of companies have non-fraternization rules barring employees from dating, although courts have upheld the legality of such policies. Whether it's a good or a bad idea to romance a colleague, however, depends -- again -- on your perspective.

"I don't advise it," Covey says. "You always have to look at what happens down the road with that relationship. If that relationship goes sour, you're going to have a definite problem.

  FARAGHER VS. BOCA
It started as a lifeguard's allegations that two of her supervisors were sexually harassing her. When it reached the Supreme Court, the case drew a landmark decision that says employers always are potentially liable for supervisors' sexual misconduct toward an employee.
Beth Ann Faragher looks back at the case.

"We see more of that in a supervisory relationship than in the co-worker end. They are some of the nastiest cases. They're worse than your divorce cases. You're asked, 'How many gifts? How many dates? Where did you go? How often? Was it voluntary?'

"If you're supervisory, I say it's absolutely off limits, because you've just opened yourself up to the great potential for a lawsuit."

Not so fast, Powers says.

He says a consensual affair, even between a boss and a subordinate, isn't by itself sexual harassment. And supervisors and subordinates aside, he says, it's unrealistic to expect co-workers not to date.

"If we're in our 30s and 40s or even our 50s, and we come home to an empty apartment where we have cold TV dinners and even our dog is lonely and we're working 60 hours a week, we're not going to be hit by that.

"We will assume the risk, even in situations where you have the very rare anti-fraternization policies that say, 'If you date, you're gone.'"

"You look at the Civil Rights Act. It was passed in 1964 and we still have race discrimination. We still have national-origin discrimination. We still have sex discrimination. It just comes down to respect."
— Anne Covey, employment law attorney

And that risk is small, he adds. "There are many more instances of positive relationships than there are of sexual harassment."

Women executives are less apt to impose restrictive office policies governing relationships among workers than are men, Powers says. "The women in high-executive places have a very balanced approach to this. They gave up philosophies like feminism a long time ago because leaders are never victims."

Perhaps, but it may be premature to look for sexual harassment complaints to disappear.

"You look at the Civil Rights Act," Covey says. "It was passed in 1964 and we still have race discrimination. We still have national-origin discrimination. We still have sex discrimination. It just comes down to respect."

 

RELATED STORIES:
Dow to fire up to 40 employees over sexually explicit e-mails
August 24, 2000
Under fire, general denies that he tolerated anti-gay attitudes
June 9, 2000
Pentagon investigates sexual harassment charge filed by top female general
March 31, 2000
Sexual harassment, chapter 999
September 13, 1999
Supreme Court backs same-sex harassment suit
March 4, 1998

RELATED SITES:
Covey & Associates, Counselors at Law
United States Equal Employment Opportunity Commission
Society for Human Resource Management


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