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Companies, Courts Differ on Harassment

By Amy Goldstein and Barbara Vobejda
Washington Post Staff Writers
Sunday, April 5, 1998; Page A16

It is a question that is likely to have arisen in workplaces around the country this past week: If a boss lures an employee into a room and exposes himself, is that not sexual harassment?

A federal judge's dismissal of Paula Jones's lawsuit against President Clinton last week could leave the impression that it is not. But judges aren't the only ones crafting the definition of sexual harassment. And the outcome of the Jones case has underscored a surprising truth: Women who believe they have been harassed will find greater sympathy in parts of corporate America than in the nation's courts.

The majority of companies in the United States have adopted written policies that generally ban the type of alleged behavior that, according to U.S. District Judge Susan Webber Wright, did not meet the legal definition of sexual harassment. Those corporate policies differ, but typically prohibit unwanted lewd remarks, touching, suggestive gestures, threats or demands for sex.

Businesses have developed that tougher attitude as much from self-interest as from altruism. Their approach has been shaped by a combination of forces: the 1991 Anita Hill testimony in the Clarence Thomas hearings; strengthened federal civil rights law; and the object lessons offered by a few high-profile cases, when companies were forced to pay huge sums to employees who had been harassed.

But experts in sexual harassment warn that a stringent policy doesn't always translate into scrupulous enforcement.

"What happens in the workplace is all over the map -- the good and the terrible," said Ellen Bravo, co-director of 9to5, a national advocacy group for working women. Some companies are sponsoring employee training and have rigorous procedures for investigating complaints and meting out punishment, Bravo said. Others "do only a quick fix, which means a brief policy statement."

A written policy was of little help to Debra Tudor, who worked a dozen years building and repairing elevators in San Francisco. From the time she was hired in 1981, Tudor said a group of her male co-workers called her insulting sexual names and tried to touch her. Once, her boss grabbed her and kissed her on the mouth.

She waited years, but eventually filed an official complaint. Six months later, she was laid off, she said. She challenged the company in a lawsuit and a labor grievance and won a settlement late last year for an undisclosed amount.

"It was on paper, but not in practice," Tudor said of the company policy. "They were just things to be posted."

Several management consultants and lawyers also said that managers tend to go easier on employees accused of sexual harassment who rank high in the company, or who bring in important income, especially when the victim is a lower-rung worker.

Freada Klein, a Massachusetts consultant on sexual harassment, said one of her clients, a pharmaceutical company, chose not to fire a research physician whose inappropriate sexual conduct has forced the company to pay settlements to his accusers on seven occasions. The most recent award was for $250,000.

The firm's CEO, Klein said, told her the choice was a "no brainer." The physician raises millions of dollars a year in grant money for the company, and it is cheaper to pay harassment settlements than to fire him.

The attention of companies and the public to the matter of sexual harassment has soared since 1991, when Congress held televised hearings before confirming Clarence Thomas as a Supreme Court justice. The hearing's star witness was Anita Hill, a poised and articulate Oklahoma law professor, who made the sensational claim that she had been harassed by Thomas while he was chairman of the federal Equal Employment Opportunity Commission, the agency responsible for investigating sexual harassment complaints.

The same year, Congress amended the Civil Rights Act to allow victims to claim monetary damages in cases involving all kinds of intentional discrimination, including sexual harassment. As a result, the financial stakes in harassment cases rose dramatically.

Three years later, for example, a California court ordered Baker & McKenzie, the nation's largest law firm, to pay $6.9 million -- later reduced to $3.5 million -- to a former legal secretary who claimed that a lawyer had dumped candies in a breast pocket of her blouse, groped her breasts, and pressed against her from behind.

Last August, Mitsubishi Motor Manufacturing of America Inc. agreed to pay $9.5 million to settle a harassment suit by 27 female employees. The company still faces trial in a lawsuit brought by the EEOC on behalf of some 350 women whom the commission alleges were groped, grabbed, threatened, or pressured for sex at the company's plant in Normal, Ill.

"When you get verdicts in the millions of dollars, it certainly gets everyone's attention," said Carolyn Wheeler, an assistant general counsel at EEOC.

These sensational cases are part of a broad pattern in which both employers and employees are showing a willingness to recognize and act on sexual harassment.

The proportion of companies with sexual harassment policies increased from 75 percent in 1991 to 89 percent in 1996, according to a survey by the American Management Association.

And since 1991, the number of sexual harassment complaints filed by employees with the EEOC has more than doubled, from 6,900 to nearly 16,000 last year.

These numbers almost certainly underestimate the extent of the problem because not all victims file with the EEOC and because employees tend to wait until the harassment has persisted before lodging a complaint.

In that respect, Jones's 1994 lawsuit is somewhat unusual. It was based on a single alleged incident, in 1991. Jones claimed that, when Clinton was governor of Arkansas, he used a state trooper to lure her to a hotel room, exposed himself, and asked her to "kiss it."

In dismissing the case, Wright concluded that Jones had not demonstrated that the behavior, even if it occurred, would have amounted to the "pervasive or severe" unwanted sexual conduct that the Supreme Court has said is needed to meet the legal definition of a hostile work environment.

In practice, most harassment complaints are based on repeated incidents, often involving more than one victim.

Even among companies that are considered vigilant, a single episode of the behavior alleged by Jones might be grounds for discipline, but wouldn't necessarily get the accused fired.

"If somebody had exposed himself, we would obviously take that very seriously. A verbal warning would not be appropriate," said Robin Shaffert, associate general counsel for Booz-Allen & Hamilton Inc., a McLean-based consulting firm. Shaffert said an employee would likely be punished for a single act, but probably would not be fired unless the one incident were as severe as a rape.

Booz-Allen is one of many companies that has responded to the changing climate. Three and a half years ago, it sponsored half-day training sessions for all 8,000 of its employees. They were taught about the law and company policy and were asked to evaluate different workplace situations portrayed in a videotape. All new employees now get the same training.

Shaffert said that, in addition to providing a better work environment for employees, such efforts "have the very real effect of preventing liability, of giving people a place to go before they feel so frustrated that they sue."

"Obviously, the legal liability is certainly something you have to be cognizant about," added Jim Heinz, executive vice president of Colle & McVoy, a marketing communications firm in Minneapolis that last year began bringing in outside trainers to teach its 210 employees about harassment.

More important, Heinz said, the company, which is owned by its employees, wants to maintain a comfortable workplace that will attract talented newcomers -- and wants to be in step with the harassment policies of its major clients.

Among the new cadre of sexual harassment trainers is Debra Tudor, who has abandoned her career as an elevator mechanic. She said she counsels her students to do everything they can to stop harassing behavior the moment they suspect it.

As for women who have been victimized, she has this advice: "If somebody does it, turn around and scream at the top of your lungs. Try to embarrass him. Take all the risks at the moment," she said, to deal with the situation on the spot.

And don't rely solely on a written policy for protection: "Pieces of paper that say things," she said, "do not change the culture."

© Copyright 1998 The Washington Post Company

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