That's What She Said
The price of sexual harassment is steep and painful!

by Stephanie Woodhead

If you are like me and zealously guard against any intrusion at 8:30 on Thursday night, you recognize the title of this article as a running joke on The Office. For those of you who haven't been introduced to this hilariously un-PC show, it centers around a group of dysfunctional office employees and their completely clueless boss, played with sincere delusion by Steve Carell. An investigator friend of mine, who has never worked in an office, doesn't understand the show and thinks Mr. Carell's portrayal of Michael Scott is over the top. I cut him some slack because in his previous job as a law enforcement officer, he had bigger life-and-death issues to deal with than identifying who immersed a stapler in Jello. But for those of us with more corporate professions, I urge you to watch The Office for some witty entertainment (and, no, NBC is not paying me to say this).

Ok, the point I'm taking so long to make is that, sometimes, the networks produce an episode that is so iconic that it is discussed for years. Remember "Chuckles Bites the Dust" from the Mary Tyler Moore Show, "Who Shot JR?" on Dallas, or "Who Killed Laura Palmer' on Twin Peaks? The Office's episode on sexual harassment training sparked such a watercooler discussion. Instead of polarizing the debate, The Office's episode explored the issues from the idiosyncratic viewpoints of its characters, making the subject accessible and topical at the same time. Having said this, The Office is, of course, still a television show. And in TV-land, the consequences of a character's actions are solely within the purview of the writers (Tony Soprano, anyone?).

Not so in the real world, where the price for sexual harassment violations is steep and painful—for everyone. Unfortunately, an allegation cannot be neatly resolved in 21 minutes. Despite the difficulties, reporting, investigating and resolving complaints is critical to the health of a company and the morale of its employees.
Accordingly, I was disturbed to read a recent blog, "The Five Biggest Workplace Myths" by Ms. Penelope Trunk (you can view it at http://finance.yahoo.com…) in which she claims "if you report sexual harassment it'll probably hurt your career. The law protects companies from getting sued for sexual harassment….when you do report harassment, the most likely thing to happen is that you'll lose your job because of retaliation." Ms. Trunk often provides a refreshing perspective about how to get ahead in the corporate jungle; however, in this case, I must respectfully disagree with her position. Since the passage of Title VII of the Civil Rights Act in 1964, it has been an uphill battle to carve out the protections against inappropriate conduct that Ms. Trunk herself estimates as "80% in some sectors."

According to Ms. Trunk, it is difficult to successfully prevail in court because the harassment must be proven to be "severe and pervasive." While it is true that it can be difficult to win a court case without strong evidence unless the harasser has chased you around his (or her) desk like Dabney Coleman in 9 to 5, there are a multitude of events that need to occur before a court case is even contemplated. The insidious thing about sexual harassment is that it has grown subtler over the years. Quid Pro Quo harassment—such as that exhibited by the quintessential sexist, sleazy salesman Todd Packer on The Office - is easily recognizable but has arguably been eclipsed by conduct that falls within the classification of creating a hostile work environment.

For the record, the Equal Employment Opportunity Commission (EEOC) defines sexual harassment as
"Unwelcome sexual advances, requests for sexual favors and other verbal or physical conduct of a sexual nature when:

It is true that, unless there is physical contact in conjunction with a verbal comment, an isolated comment will not rise to the level of "severe and pervasive" to sustain an actionable claim. But, in my experience, people don't report isolated incidents; instead, they wait until the conduct is intolerable. This could mean a variety of things, such as multiple verbal comments, inappropriate cartoons or other illustrations, emails, and physical contact up to and including rape. This behavior is unacceptable in the workplace and it is the duty of every employee to help keep the environment free from discrimination.

Under both federal and California law, retaliation by an employer against an employee for filing a claim of harassment is illegal and subject to punitive damages. During my investigations, I have found most employers are well aware of the consequences of retaliation and do their best to avoid putting themselves in the position of defending a retaliation claim in addition to the original harassment allegations. The last thing an employer wants to do is aggravate the situation.

Here's the strange thing about sexual harassment cases: the intent of the harasser makes no difference. Huh? On Law & Order, Jack McCoy is always yelling at Lennie Briscoe to bring him more evidence to establish intent. Ah, to be a television screenwriter… are we back to Tony Soprano? But I digress. For those of you who have watched The Office, you know that Todd Packer routinely makes disgusting, rude comments. As a viewer, you get the idea that this is his personality and he's probably just as inappropriate to his dry cleaner as he is to his colleagues. In the real world, however, being an equal-opportunity harasser does not give you a "Get Out of Jail Free" card. This difference in perception—and the weight given to these perceptions when filing harassment complaints - is the essential core of any investigation. It is critical for these complaints to be addressed in a timely manner and by a neutral, third-party investigator. I have spoken to many an employment attorney who will say, "if only my client had hired an outside investigator immediately, we wouldn't be in this mess right now." (Of course, it is not all Sturm & Drang on their end because the "mess" allows them to rack up additional billing.)

Don't get me wrong: not every case of "he said/she said" requires an investigation on the scale of the Abu Ghraid scandal. The issue actually goes back to training. For example, many supervisors think that if an employee discloses incidents of harassment but begs them not to tell anyone, that they have to honor the employee's request for confidentiality. Wrong! The moment a supervisor has knowledge of possible misconduct, the company is on notice and is legally obligated to start the investigation process. Depending on the allegations, many human resources professionals are fully capable of conducting an impartial internal investigation. When the claims are more egregious—such as physical contact, other forms of discrimination, and/or retaliation—it is time to bring in an outside party. Why? Because the first thing a court will do is scrutinize the timeliness and impartiality of the investigation. Without a thorough and fair investigation, the employer could be liable for punitive damages in addition to compensatories. In California, punitive damages are statutorily set at triple the compensatory damage award. Still not convinced? If you are having problems sleeping, try reading the decision in Fisher vs. San Pedro, 214 Cal. App.3d 590. Too boring? Ok, well, here's the punch line: the California Appellate Court says that the failure to fully investigate and repudiate an employer's conduct may create liability for punitive damages. Recently, for example, Ralph's Grocery Stores were ordered to pay $30 million in punitive damages to 6 female plaintiffs who successfully prevailed on their sexual harassment claims.

But, back to why it is important to report incidents of sexual harassment, or any type of discrimination for that matter. Obviously, as already discussed, employers are liable for big bucks if they don't do anything about the incidents or just pay lip service to a flawed internal investigation. California recognizes 3rd party liability for sexual harassment. This means that an employee can have standing to bring a claim even if he/she is not the target of the harasser. It works like this: say the Overnight Delivery person continually makes sexually explicit comments to the receptionist and one of the employees in the cubicle next to the receptionist overhears them. The Cubicle Employee can legitimately complain to his/her employer even if the Receptionist, who is the object of Overnight Delivery's dubious affections, is not offended. Why did the brilliant minds in Sacramento pass this protection? Well, it's pretty simple: why should any employee be subjected to this type of verbal diarrhea? We all have enough to deal with during the day and it has no place in a business environment.

It has taken decades to obtain the rights and remedies available to victims of sexual harassment. In progressive states like California and Minnesota, for example, protection is extended to encompass transgender and sexual orientation, two classes not currently protected under Title VII. To throw these rights away because they are not expedient to climbing the corporate ladder is myopic and undermines the hard work of women - let's face it, sexual harassment mainly affects women, although, according to the 2002 EEOC statistics, 15% of the sexual harassment cases were filed by men—who have put themselves on the line to fight for them.

So, being the pop culture fanatic that I am, I wonder what would happen if we put Mary Richards from the Mary Tyler Moore show in charge of The Office. I don't think Mary would allow Michael Scott to get away with sending his ridiculous emails and having meetings just to hone his Monty Hall schtick. Instead, I think Mary would let everyone design his or her own bobble head dolls and, to be nice, she would give Dwight a security guard uniform with his own name tag. Maybe he would even sport a shiny badge similar to a sworn police officer's. Of course, Dwight would immediately start goose-stepping and saluting, which would create a whole host of other hostile work environment claims. But let's save that discussion for the next article…

Stephanie Woodhead is the President/CEO of Discovery Resources Group, a private investigation firm located in Los Angeles. She earned her B.S. in Business Administration and J.D. from the University of San Francisco. Although a full service firm, Discovery Resources Group specializes in discrimination cases.

Penelope Trunk Blog, "Don't Report Sexual Harassment (in most cases)," dated 11/02/2006.

Excerpted from "Preventing Sexual Harassment And Other Workplace Harassment" by The Bureau of National Affairs, Inc., 2004 Edition.

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