By Kirstin Downey Grimsley
Washington Post Staff Writer
Monday, December 23, 1996; Page A1

Social worker Hank McGovern loves David Letterman and his flippant late-night talk-show style. One day at work last March, he found himself trying to emulate what he thought was the host's offbeat conversational manner with a new female co-worker at the Cleveland Center counseling facility in Shelby, N.C.

"I'm gonna flirt with ya," he told the woman one afternoon. About a week later, he repeated the same thing. She told him she didn't like it. Then accounts differ. She alleges that he said it a third time; he says he told her he wouldn't say it again.

One month later McGovern, 42, was fired. According to the letter of dismissal McGovern received from his supervisors at the Cleveland Center, the triggering event was the woman's charge of sexual harassment.

"I was shocked," McGovern said. "I feel the person victimized the most was me. I was the person fired from the job. It was traumatic."

McGovern has joined a small but growing fraternity of people who claim they were punished unduly harshly or fired for minor incidents that seem to them and some experts as relatively trivial, compared with the egregious behavior that is documented in sexual harassment cases that have emerged elsewhere.

How to react to allegations of sexual harassment is one of the trickiest questions facing corporate managers today. Many consultants, lawyers and other experts in sexual harassment say that as companies grow more aware of the issues and potential legal liabilities, many managers are stumbling in their responses. Some under-react by denying, deferring or ignoring serious charges. Others overreact by firing or severely punishing employees for lesser allegations.

"There's a dichotomy in our economy," said employment attorney Rita Risser, a principal in Fair Measures, a workplace training and advisory firm in Santa Cruz, Calif. "Some organizations will tolerate gross harassment – rape, stalking, attempted murder – and won't do anything, but other organizations will fire someone for doing something minor that is not illegal but is a violation of the [zero-tolerance] harassment policy."

In some cases, the overreaction appears to stem from corporate concerns about the potentially large damage claims or bad publicity that can result from ignoring sexual harassment. In other situations, supervisors are using sexual harassment claims as an easy excuse for supervisors to fire unpopular people.

Nobody knows how many employees have been hurt by this kind of corporate overreaction. Risser, who has been tracking the phenomenon, said she has seen at least a dozen examples in the past 18 months among her 50 corporate clients.

Those numbers are dwarfed by the thousands of individuals who bring complaints of sexual harassment to government agencies because they believe their employers failed to respond appropriately. These numbers are growing rapidly: There were 15,549 sexual harassment complaints made to the U.S. Equal Employment Opportunity Commission and state human rights organizations last year, up from 6,127 in 1990.

Yet in a handful of cases, it's clear that corporate or organizational bureaucracies have bungled or manipulated investigations of complaints in ways that may damage people's careers unfairly. These cases of overreaction are caused partly by lawyers and human resources consultants, who sometimes counsel companies to avoid litigation by quickly firing people who are accused – with or without completing a full investigation.

"The thinking and teaching is that you are better off firing them, because the second [incident] will hit you really hard," employment attorney Mike Neill said. "They are branded for life."

The right approach, experts said, is to conduct a careful investigation and respond quickly with appropriate disciplinary action, such as an official warning, suspension or transfer. If the behavior continues, a company may have no choice but to dismiss the worker or face an eventual lawsuit.

Complicating matters is the fact that most harassers deny the allegations against them. Even people charged with repeated, serious misconduct, where there is ample evidence of wrongdoing, will refuse to acknowledge the effects of their behavior. And harassers typically contend that their accusers are overreacting.

The best guide for corporate managers in this new area of the law is to assess whether an employee's actions would bother a "reasonable" person. That is the standard used by the courts, which have generally defined sexual harassment as conduct that is repeated, unwelcome, creates a hostile work environment and would offend a "reasonable" woman or man.

An analysis by Risser of 13 federal sexual harassment cases from 1994 to 1996 found that those won by the plaintiffs generally involved menacing actions, such as rape, stalking, attempted murder, extremely vulgar language and repeated propositions, particularly by supervisors.

How Far Is Too Far?
But what about less-extreme behavior, where reasonable people might disagree? McGovern, the therapist who was fired after saying he wanted to flirt with a co-worker, contends that his behavior wasn't sexual harassment. "It's an insult to me, because I would not say anything to someone if I knew it was unwanted," he said in an interview.

Support for McGovern's contention that he was fired unfairly comes from the North Carolina Employment Security Commission, which reviewed the facts in the case and ruled last July that he was eligible for unemployment compensation because he hadn't been discharged from his job for "substantial fault or misconduct connected with the work."

Yet in dismissing McGovern on April 29, Cleveland Center area director D.S. Brenneman and outpatient treatment services director Chris von Stade, said he was being fired because of a "failure in personal conduct."

In the memorandum, Brenneman and von Stade said McGovern had failed to take full responsibility for the negative consequences of his "gonna flirt with ya" comments. They said it indicated a pattern of poor judgment, and that he had been argumentative about the significance of his words. They said he had attended sexual harassment training when he was hired by the agency and had been told that a sexual harassment charge could cause an employee to lose his job.

"Cleveland County government and Cleveland Center cannot afford a reputation of excusing this kind of behavior," they wrote.

Brenneman and von Stade each were contacted twice, but both declined to comment on the dismissal and referred calls to Cleveland County attorney Julian Wray. Wray said that by law, county officials are not permitted to comment publicly on personnel matters.

Overturning a Dismissal
An example of an accused harasser who won back his job is Richard Dinsmore, a professor of European history at the University of Maine at Fort Kent. Many accused harassers take to the courts to try to avenge themselves, but he is one of a handful who have succeeded.

In early 1992, one of the women students in Dinsmore's History of Ideas class complained to school administrators that he had sexually harassed her by touching her shoulder during a viewing of a film, by helping her put on her coat and by acting overly friendly while taking her out for coffee.

An investigation was conducted by Myrna Cassel, the campus's vice president for academic affairs and student services. In addition to supporting the student's claims, she also said Dinsmore was "guilty of using inappropriate academic content" by requiring students to read a book by psychologist John Bradshaw called "Homecoming," which Cassel said could be "dangerous to students who might not be sufficiently mature." She recommended that Dinsmore, who had been suspended, should be terminated.

He was fired from his tenured position in May 1992.

Dinsmore sued, charging that his rights to free speech and due process had been violated and that he had been defamed. He won nearly $1 million in damages and attorneys fees in a jury verdict last year. His case was later resolved in a mediated settlement for $500,000 and he was reinstated to his previous job. He returned to work at the college campus this fall.

Dinsmore said in an interview that the charges were "preposterous," and that he had become a victim of "man-hating feminists." He said he did not blame the young woman who had made the complaint because he believed she was a pawn in an ongoing dispute he had with administrators.

Dinsmore's attorney David G. Webbert said Dinsmore had become a controversial figure on the campus by espousing unpopular views on gender issues. "In a university setting, sexual harassment is a weapon people can use to get people fired," Webbert said.

Vendean Vafiades, counsel for the University of Maine System, confirmed that the university had settled the case and reinstated Dinsmore. But she said the university's views about Dinsmore's conduct had not changed, despite the jury's verdict.

"Professor Dinsmore's conduct caused us great concern," Vafiades said. "We feel we have an institutional obligation to protect our students."

Group dynamics appear to play an important role in these cases, experts said, as people join in denouncing those they mistrust. Particularly vulnerable are African-American men, especially if the alleged victim is white, or highly-paid older white men in a era of salary cutbacks, experts said.

In a relatively small number of cases, alleged victims have invented harassment stories, experts said. These rare instances of false accusations stem from psychological problems, a desire to earn money in a lawsuit, or an attempt to protect their jobs if they are performing badly and fear they may be fired, according to attorneys who specialize in handling sexual harassment cases.

One case cited by sexual harassment prevention trainer Monica Ballard involves a woman teacher was coming to work late and leaving early; she was confronted about it by the male principal, who told her he had been tracking her schedule of missed work. The next day, the woman falsely charged he had sexually harassed her, and the school district fired him immediately to avoid negative publicity.

Corporate Weapon
Sexual harassment charges can sometimes become weapons in corporate competition.

Employment attorney Risser said at one company she advises, two competing sales managers, both men, were drinking at a bar and exchanging war stories about their staffs and their strengths and weaknesses. One of the men described a woman salesperson as "hot," referring to the blizzard of business she brought the firm.

His drinking buddy returned to the office and reported his competitor for sexual harassment. The man who had made the "hot" comment was written up for a disciplinary infraction, Risser said.

Sometimes companies treat accused harassers differently, depending on who they are, Risser said. At one high-tech Silicon Valley company she advises, a fast-track, up-and-coming engineer jokingly patted a woman subordinate on the rear one day. The woman complained, but the company wanted to do nothing, hoping to protect the rising star. Risser disagreed, saying they were required to enter it in his record.

But at the same company, Risser was brought in to provide last-chance counseling to a service manager who had been issued a final written warning about another one-time incident. This male service manager had complained to a female colleague, after she chewed him out in public, that she had "raped" him. The woman then complained his use of the term was sexual harassment.

The company agreed and sanctioned the man severely. But in her counseling session with the man, Risser said the service manager had documented 12 uses of the word "rape" at their office, by both men and women, as a verb meaning to take advantage, abuse or overwhelm another worker. He believed he had been unfairly singled out for punishment. "He said, `This is political,' " Risser said. "And I said, `You're right. This is what they are doing to get you on the way out. They want to get rid of you.' " Not surprisingly, such overly harsh policies can have the same chilling effect on the workplace as sexual harassment that goes ignored. It can also boomerang on woman complainants because other co-workers will blame them if someone is fired for what appears to be a minor issue. Male workers may also start avoiding working with women because they fear that some small misstatement will result in their dismissal.

Glenn Ricketts, a spokesman for the Princeton-based National Association of Scholars, who reviewed Prof. Dinsmore's case and believes it is not unique, said he thinks that women may ultimately suffer because of men's fears of false accusations or unjust punishment.

"The sad situation is a number of my male colleagues won't ever meet with a female student without the door to their office open, and without a colleague present," Ricketts said.

"When you go nuts and fire somebody for something minor, then you have a whole new set of problems," said Susan Webb, president of Seattle-based Pacific Resource Development Group, a pioneer in the field of sexual harassment prevention training and an expert witness on the topic for the past decade.

"If you under-react and punish people too lightly, it shows you don't care," she said. "If you overreact, a lot of women will be impacted, too."