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Suits by Harassed Workers Face Curbs

Court will rule in a case that may shield firms that were unaware of a supervisor's actions.

November 11, 2003|Maura Dolan | Times Staff Writer

Thousands of sexual harassment lawsuits in California could be in jeopardy under an imminent ruling that may protect employers whose supervisors prey on subordinates.

Business groups have asked the California Supreme Court to change the state's sexual harassment law and shield conscientious employers who were unaware of a supervisor's misconduct because the victim failed to follow company procedures and complain.

California now has one of the strongest sexual harassment laws in the nation. Any employer, no matter how small, is automatically liable for monetary damages if a supervisor harasses an employee.

Employer groups complain that the law fails to distinguish between employers who have strong policies to deter sexual harassment and those who ignore the problem.

"In my experience, the run-of-the-mill case is that the employer does not know that someone is being harassed by some rogue supervisor," said Greg Richardson, a lawyer who represents employers in the case.

The state high court will hand down its ruling in the next few weeks in a lawsuit brought by a woman who said she endured two years of leering, touching and propositioning from her boss before hiring a lawyer and reporting the problem to her employer, the state Department of Health Services. The state argues that it could have stopped the harassment sooner if the employee had followed internal procedures and complained.

But Theresa McGinnis, 37, said she wanted to try to handle the situation herself. She said she assumed nothing would be done because another female worker had complained about the supervisor previously, and he was not disciplined.

Taking matters into her own hands, she would warn her boss to "knock it off" or watch his hands, she said. She complained to a co-worker and to her husband. At one point, her husband even confronted her boss.

"I knew it wasn't right, but I just expected it to stop," said McGinnis, who was a contract manager in a fiscal management unit. "I would dodge him as much as I could outside scheduled meetings."

Employer groups are calling on the state high court to adopt a rule that has been followed in federal cases since 1998. It protects employers who maintain strong policies against sexual harassment from lawsuits by employees who failed to report a supervisor's misconduct promptly.

But surveys and laboratory studies of sexual harassment victims have found that filing a formal complaint is what a victim is least likely to do.

Harassed workers are reluctant to come forward because they fear ostracism by co-workers or retaliation, the studies show. Two federal surveys in 1988 and 1995 found that only 5% of victims filed an internal complaint with their employer.

"It is very uncommon for people to complain immediately, even if they are raped or assaulted," said Hofstra University law professor Joanna L. Grossman, an expert on sexual harassment and the law.

By making employers automatically liable for their supervisors' actions, state law now gives companies an incentive to deny that harassment occurred, employers argue. They also contend that new rules are needed to prod victims to come forward before misconduct rises to the level of harassment. They complain that victims now have an economic incentive for not reporting promptly: The longer the harassment, the greater damages the victim may eventually recover in court.

Suits filed under the state law typically name both the harasser and the employer, but the employer usually winds up paying most of the monetary damages.

"Everywhere, sexual harassment should be eradicated," said Deborah Saxe, a Los Angeles lawyer who defends employers. "That is the goal. The goal is not to provide opportunities for lawsuits."

The federal rule that protects employers applies only when the worker has suffered no loss in job status. To win on federal claims, the employer must show that it took care to prevent and correct harassment, and that the victim failed to take advantage of a complaint system or other corrective opportunities.

The rule, crafted by the U.S. Supreme Court, already has led to the demise of many federal sexual harassment suits.

In a decision last month, a federal appeals court in Atlanta ruled that an employer could not be sued by a woman who claimed her supervisor had raped her because she had waited two months to report it and had not taken enough actions to avoid him. The company fired the supervisor after learning of the allegation.

A federal district court in Illinois also relied on the 1998 precedent when the court threw out a workplace lawsuit because the worker waited eight days to report the harassment.

The woman contended that her supervisor had harassed her from the day she was hired until she quit eight days later. The company had in force a strong policy against harassment and a formal complaint procedure.

On the day before she quit, the executive director of the company asked how she was doing. She had replied, "Fine." The court reasoned she should have spoken up then.

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