Ending Sexual Harassment: Business Is Getting The MessageMichele Galen
American National Can Corp. was making an effort to put more women in a traditionally male area when it hired Jacquelyn L. Morris in 1981. Morris worked as a machinist in its Pevely (Mo.) bottle-making plant. By the time she resigned in 1987, she had the top seniority in a unit with 12 men. Her performance ratings were "good" or "excellent." But she was miserable. Her male bosses and co-workers wouldn't leave her alone.
"You have a nice ass," the unit manager told Morris several times as he patted her buttocks. She'd find photos of scantily clad women at her workbench. At first, Morris was too embarrassed to complain. But on July 16, 1986, three months after the other female in the unit had quit over harassment and two days after Morris found a photo of an erect penis on her toolbox, she went to the Equal Employment Opportunity Commission (EEOC), and then to court. "All I wanted was for the harassment to stop. After I filed a complaint, however, the harassment escalated," she said.
PUNITIVE DAMAGES? The company argued that Morris had provoked the treatment she got. Her boss told the court that Morris should have done more to stop the incidents. While American National Can rehired Morris in late 1987, the judge faulted it for not taking her complaints seriously enough: The company's supervisors "apparently expected that occasional, mild rebukes of employees about `horseplay' and `pranks' would put a stop to what, in fact and law, was serious sexual harassment." He awarded Morris $16,000 in back pay and interest. And he ordered the company to set up a training program and complaint system, which it says it did.
The ruling is one in a wave of decisions that are rewriting the rules governing conduct between the sexes in the workplace. Unlike other sectors of corporate life, where standards were relaxed in the Reagan era, the rules governing sexual harassment grew tougher in the `80s. Now, courts are stretching the definition of sexual harassment. And they're raising the stakes.
So some employers are stepping up their efforts to fight sexual harassment--which is almost always directed at women. "It's a very definite trend: Companies take sexual harassment more seriously," says Donna L. Harper, a senior attorney in the EEOC's St. Louis office, speaking of her experience.
This emerging concern largely reflects the growing ranks of female employees, particularly in nontraditional work environments, say observers such as Michael J. Hoare, Jackie Morris' lawyer: "Women are getting more and more aggressive about asserting these rights."
Congress may also step in. A Democrat-sponsored civil rights bill pending in the House would amend the federal antidiscrimination law to give workers the right to jury trials and to punitive damages for sexual harassment. A Bush Administration counterproposal would do the same but would cap punitive awards at $150,000. The current law entitles victims only to back pay or reinstatement if they leave the job or are fired.
"No longer can there be a boy's atmosphere," says Susan M. Benton-Powers, a Chicago lawyer who advises companies on employment issues. "No longer can the wary employer get away with saying `Be tough. That's not a big deal.' They have to investigate complaints. Otherwise, they can be held liable."
UNWELCOME CONDUCT. Companies seeking to avoid suits may have to redress behavior many males never notice. The influential U. S. Court of Appeals for the Ninth Circuit in San Francisco recently ruled that sexual harassment has to be judged, not by the prototypical "reasonable man" rule, but by the standards of a "reasonable woman." If upheld, the change won't be just semantic. "Conduct that many men consider unobjectionable may offend many women," wrote Judge Robert R. Beezer in an opinion with Judge Alex Kozinski. Noted the Reagan appointees: "Because women are disproportionately victims of rape and sexual assault, women have a stronger incentive to be concerned with sexual behavior. Men, who are rarely victims of sexual assault, may view sexual conduct in a vacuum."
In the case, the alleged harasser, Sterling Gray, apparently became smitten with an IRS co-worker, Kerry Ellison. After she declined his lunch invitations, Gray wrote her a barrage of love letters. She reacted with fear about "what he would do next." The trial judge threw out her complaint. He called Gray's conduct "isolated and trivial." But the appeals court refused to call Ellison's behavior hypersensitive for a reasonable woman. Instead, it ordered a new trial. The IRS may appeal.
Some companies have long been concerned about such behavior. But now, they're doing more. They are printing booklets that spell out subtle but inappropriate conduct. They're holding role-playing sessions. Some are even hiring consultants or auditing work areas for girlie pin-ups (table).
Honeywell Inc., where women make up nearly 40% of the work force, is actively taking steps to avoid the problem. Last year, its in-house art gallery featured a photo show with shots of nude women. But women were made uneasy by men giggling at the photos. "We had to take the whole exhibit down," says lawyer Barbara A. Jerich, work-force diversity director. "It was not racy. It was art. But the context in which it was viewed was not appropriate."
Many companies still find plenty of reasons not to spend the time or the cash to deal with the issue--until faced with an embarrassing suit or high turnover rate. Freada Klein, a Cambridge (Mass.) consultant, explains that all but the most offensive behavior is tough for companies to sort out. Often, the harassment follows an office romance gone sour. Or complaints aren't effectively communicated. Companies also fear, with some justification, says Honeywell's Jerich, that education spurs claims: Workers know their rights.
One situation where men and women often differ markedly in judging whether sexual harassment is taking place involves comments on clothing, says Trisha Brinkman, a San Francisco-based consultant on sexual harassment. "The question is always `Is it harassment or a compliment?' " says Brinkman. "People know the difference between saying that's a nice dress, and that's a nice dress. One of the myths is that women cause these comments by wearing certain types of clothes. But this is not about sexual attractiveness, it's about abuse of power."
QUID PRO QUO. Not too long ago, sexual harassment wasn't even recognized as a problem for the courts. A few cases appeared in the mid-1970s. In 1980, the EEOC put out guidelines that identified two types of sexual harassment. The more obvious is "quid pro quo"--sleep with me or you're fired. The second type, which doesn't include direct sexual overtures, is hostile-environment harassment. The scary part for companies is that in environment cases, the behavior can be cumulative. Thus, raunchy jokes, lewd graffiti, and repeated sexual advances add up. The critical determinant query for all harassment is: Was the conduct "unwelcome?"
The turning point for employers came in 1986. In its first and only ruling on the subject, the Supreme Court "pretty much told companies they'd better get out there," says attorney Benton-Powers. In the case, Meritor Savings Bank vs. Vinson, the court held unanimously that sexual harassment violates Title VII of the 1964 Civil Rights Act if it is unwelcome and "sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment."
Many companies responded to Meritor and the EEOC with a one-shot policy approach. They inserted sexual harassment policies into personnel handbooks or updated existing ones. Typically, they lifted the lawyerly language of the EEOC guidelines. But courts kept finding that they failed to publicize such policies or circumvented them.
The companies also got more serious at policing blatant misconduct. And the number of quid pro quo cases leveled off, lawyers say. But environmental-harassment cases increased steadily. Overall, EEOC sexual-harassment complaints grew from about 4,400 in 1986 to about 5,600 in 1990. The more liberal state courts, meanwhile, have had a surge of harassment-based claims because of the potential for greater damages and punitive awards.
To help companies sort through the rulings, the EEOC last spring published what it calls "guidance." In determining liability, the agency said, key factors are whether the employer has an effective internal grievance procedure that allows employees to bypass immediate supervisors--often the offenders.
In January, a federal judge in Florida took on a fixture in many male-dominated shops: cheesecake calendars and girlie posters. Judge Howell Melton called them a "visual assault on the sensibilities of women." The case involved a female welder, Lois Robinson, at Jacksonville Shipyards Inc. After she had complained about "pornography" in the shop, her male co-workers cracked dirty jokes and brought in more X-rated stuff--evidence, the judge concluded, of an illegal hostile environment. While President Roger Palmer refuses to discuss the case, which involves events before he took over, he says the yard will abide by whatever the judge eventually orders it to do.
To be sure, plenty of pin-up posters remain on the walls of American companies and are used as marketing tools (box). Indeed, many corporate leaders consider problems of sexual harassment to be exaggerated, especially by plaintiffs' lawyers and consultants who have an interest in doing so. And, despite strong evidence, alleged offenders sometimes get sympathy from the courts. On Feb. 6, a federal judge in Arlington, Va., ruled that a former secretary at USLICO Corp. was not sexually harassed even though her boss repeatedly massaged her back and followed her to the bathroom. Judge James C. Cacheris compared the newly divorced defendant to a "faithful dog, constantly expressing his affection and hoping to receive more of the same." The plaintiff has appealed.As more companies learn to deal with traditional types of offensive conduct, new forms of harassment keep appearing. Women say they now are receiving sexually provocative electronic mail and finding obscene messages on answering machines. Some are even complaining about X-rated software on company computers. With the possible ways of sexually harassing a co-worker almost limitless, what constitutes unacceptable behavior in the workplace may continue to outpace companies' efforts to stop it.
Here is a sampling of what some companies are doing to combat sexual harass- ment on the job: CORNING: Sends workers to a four-hour orien- tation that deals with a diversity of issues, including sexual harassment. Guidelines--dating back to 1976--bar pin-up calendars CBS: CEO Laurence A. Tisch sends a yearly memo to workers saying the company won't tolerate harassment DEC: The New Software Group hired a sexual-harassment consultant to lead a series of one-day programs for management HONEYWELL: Last May it instituted a sexual-harassment education program with role-playing and films. Company also makes visual inspections of plants and offices and gives workers its handbook (excerpt above) DATA: BW