Gail Derr of Sterling has written President Bush a letter. In it, she told him how Gulf Mineral Resources, a division of Gulf Oil Corp., had discriminated against her because she is a woman. She told Bush that a judge found in her favor, and she lost a year of work, but Gulf did not have to compensate her for any of the mental depression or career setbacks she had sufferred.
Discrimination against a woman is illegal, but it's a low-cost crime.
Which, of course, is why it continues to be standard operating procedure in businesses and other institutions. A series of 1989 Supreme Court rulings have made it increasingly difficult for blacks and women to prove that they have been discriminated against on the job. The 1990 Civil Rights Act is designed to repair the damage that the court inflicted on the fabric of civil rights laws. In addition, it provides for the first time that women who have been discriminated against intentionally can collect punitive damages from their employers.
The cost of business as usual may be about to go up. And, understandably, the punitive damage clause, which has aroused strong opposition from powerful business lobbies, has become the most controversial part of the new civil rights bill.
The controversy puts in stark relief the fact that we have two kinds of discrimination in the country: the kind that we won't tolerate and the kind we will. Currently, only victims of racial discrimination can collect compensatory and punitive damages. People who are victims of discrimination based on age, sex, disability or national origin can collect attorney's fees, back pay and a court order that reverses the discriminatory action, but they have little hope of ever being made whole. Thus, if a woman has been fired as a result of sex discrimination, the court cannot order the employer to pay her punitive damages for the mental anguish she has suffered. If a black woman can prove that she was fired because of racial discrimination, however, the court can order her employer to pay a hefty sum in punitive damages for her ordeal.
Women's rights groups are pushing hard to broaden the punitive damages remedy to include women and other victims of on-the-job discrimination. They have released letters to Bush from five women to illustrate their case. Marcia Greenberger of the National Women's Law Center makes the point succinctly: "Victims of discrimination should be treated fairly."
One of the most compelling stories that backers of the provision are pointing to comes from Carol Zabkowicz of Racine, Wis., who sufferred five years of what she called extreme sexual harassment while she worked in a warehouse in Oak Creek, Wis. Extreme may be the understatement of this entire debate.
"My co-workers would constantly pull at my bra straps," she wrote in her letter to Bush. "One of them left a handwritten poem on my desk regarding my sex life with my husband. Another man exposed his buttocks to me, and on occasion would lift up the leg of the cut-off shorts he was wearing, call my name, and expose his testicles to me.
"Yet another co-worker would post caricatures of me. These drawings would depict me naked, often performing sexual acts with either a human being or an animal." She repeatedly brought the harassment to the attention of management, which told her co-workers not to post things on the walls but took no further action. She wrote that she did not think she could quit because her family needed the money. Finally, her obstetrician ordered her to take medical leave because her health was declining.
A federal judge in Milwaukee found that she had been the victim of "sustained, vicious, and brutal harassment" that harmed her health and he awarded her $2,700 in back pay for the leave she had to take. "But," she wrote in her leter to Bush, "he also told me that I could not get reimbursed for my medical bills, emotional stress or harm to my family."
She was not made whole.
The U.S. Chamber of Commerce has put the punitive damage clause at the top of its hit list of things it wants out of the civil rights bill. Businesses afraid of punitive damages can do the obvious: They can take the appropriate steps to make sure that women and others are not discriminated against on the job.
We will never have an economically just society until sexism is treated as a malignant evil that must be excised with the same radical precision with which we excise racism. To give punitive damages only to those who are victims of racial discrimination perpetuates the pernicious notion that sexism is a more benign behavior than racism and therefore requires a less aggressive form of treatment.
No civil rights bill should ever send such a message.