Sexual Harassment Video Program

Judy Langevin, a principal at Gray Plant Mooty who practices employment law. She defends employers in discrimination and wrongful termination litigation, including sexual harassment cases. She was also named a Minnesota Super Lawyer by Minnesota Law & Politics from 2003 to 2007.

Nicholas May, a partner with the law firm of May & O'Brien. He represents clients in their claims for discrimination, retaliation, failure to pay wages, whistle-blower violations, and sexual harassment.

Fran Sepler, President of Sepler & Associates. Her organization provides customized training on appropriate employer responses to employee claims of discrimination and harassment, and she has also served as a neutral fact finder in over 100 complex complaints of harassment and discrimination.

William Robiner, Chair of the Psychology Standards Committee at Fairview-University Medical Center and former chair of the Psychology Standards Committee at the University of Minnesota Medical Center. He is a board-certified clinical health psychologist whose professional experience includes counseling individ

The program was hosted by freelance journalist Rondah Kinchlow and produced by the Department of Human Rights in collaboration with SPNN. Check SPNN’s web site for the latest airtimes.

Introduction

Introductory comments -- Rondah Kinchlow: Sexual harassment: it's not supposed to be happening, not anymore. We all know better, don't we? I'm Rondah Kinchlow. In this edition of The Right Focus, produced by the Minnesota Department of Human Rights, we're going to be talking about sexual harassment. It's a subject people have been talking about since the 1970s, and in 1980, the federal Equal Employment Opportunity Commission defined it and determined that it was prohibited by the Civil Rights Act of 1964. That same year, the comedy 9 to 5 became one of the highest grossing movies of 1980, in which Jane Fonda, Lily Tomlin, and Dolly Parton fought off the attentions of their sexist boss. Then in 1991, Anita Hill set off a nationwide debate by charging that Supreme Court nominee Clarence Thomas had sexually harassed her.

Sexual harassment: been there, done that, in the past, and now we know better. Then how come in 2006, more than 12,000 charges of sexual harassment were filed with the Equal Employment Opportunity Commission and companies paid out more than $48 million to settle them? That's more than they paid out the year before and the year before that. And why do government and media surveys continue to show that between 40% and 60% of female employees have been, at one time or another, sexually harassed at work?

We don't know, but we're here to ask those questions, and we're going to talk about what sexual harassment is, what it is not, and why it's still happening, and why it matters to all of us. We're going to do this by looking at a number of actual charges that were filed with the Minnesota Department of Human Rights. We're not going to use the real names of those who were accused or those who brought the accusations, but we're going to get the details. And let me warn you that sometimes those details are graphic.

Note that in all of these cases we'll be looking at, these are not the actual individuals who filed or responded to the charges, but these are their accounts of what happened.

Case 1: At a Collection Agency

"I worked at a collection agency for more than a year and a half, and there was ongoing harassment. I was at a company golf function, and the president and owner kept putting his arms around me and calling me "love" and "babe." That same night, a male coworker told me that the owner told him he fantasizes about locking me and my coworker in his basement and not letting us out.

"Later that month, the owner followed me to my office, and I suddenly felt his hands around my midsection as he tried to tickle me. I yelled, "Don't!" During business meetings, he would ask what I wore to bed. He made comments about my body. He said my breasts were, "So big, you're making me think bad thoughts. ”Did you dress like that for me? I can't help but stare at them." He kept telephoning me constantly, at night, over the weekends. I had to turn my phone off.

"At work, he would say he was angry at me for not returning his calls, telling me, "I need to talk to you. I need to hear your voice. I love you." Several times, he threatened to fire me if I didn't answer his calls. And one day in November, he asked me if I was up all night sexing. I ignored him. Then he asked how many guys I had had sex with the last night and how many were coworkers. I complained about this treatment, but nothing was done to stop it. I couldn't tolerate this hostile environment any longer. I resigned. I believe that I was subjected to sexual harassment and reprisal in violation of the Human Rights Act."

Kinchlow: A person or organization accused in a charge of sexual harassment is called the respondent. In this case, here's how the respondent answered the charge:

"The respondent did not sexually harass the charging party. He said something inappropriate once when he was drunk, but except for that one incident, he never did or said anything that he considered inappropriate. He didn't touch her or make sexual comments. There is no truth to these allegations, and the respondent is not liable to the charging party for sexual harassment."

Kinchlow: In its investigation, the Department found witnesses to corroborate that the owner of the business made comments about the charging party's breast and said she was hot; he called her babe and asked if she had been up all night sexing. The Department decided that in the circumstances in this case, the behavior that the charging party was subjected to was indeed sexual harassment. The Department did not find that the charging party had been subjected to reprisal for complaining about sexual harassment. But what do you think?

Langevin: If she was able to establish that all of the things that she described really happened, it was intolerable. And it's not something that anyone should have to put up with in the workplace. It's unclear what other people were able to corroborate, and that's very important, and it matters not at all what the motivation of the owner was in making the comments that he made. So if I were the lawyer defending the company in this case, I'd be significantly worried, and I'd tell the company that they might want to think about some early resolution of the case that would keep the case from going into litigation.

Kinchlow: To some people, it may be an open-and-shut case. What is sexual harassment? How would we define it? Because could he argue that he doesn't even know what it is?

Sepler: Well, knowing what sexual harassment is, is really not a requirement for sexually harassing someone. I think that in this day and age, employers generally recognize that the kind of behavior that was being described in this particular scenario isn't considered acceptable in the workplace. I think what's more interesting is that I think the general public might react to her and say, "Why didn't she stop it? Why didn't she do something? Why didn't she quit her job?" And that really speaks to the, I think, pervasive reality that people face that when they're in their job, very often, they don't have the option of simply walking away from it. They feel as though if they say something about it or do something about, as she clearly tried to do, they could jeopardize their ability to support themselves and their family, and people do sit still for a good deal of bad behavior for a long period of time before they finally decide that the -- whatever the cost of reporting it is going to be, it's a better cost than the cost of continuing to tolerate it.

Kinchlow: Which kind of raises that whole issue. It's kind of psychological. It does have some psychological impact on you when you are being treated or spoken to in this manner. Do you agree, Nick?

May: I do. When people come to see me about being sexually harassed in the workplace, a lot of times, they do express, you know, the fear, the concern. A lot of times, I get people who are still working at a job, and, you know, you explain to them what their rights and obligations are and what the employer's obligations are, and they still sometimes choose, "Jeez, I've got a family to support. I've got all these other financial obligations. I can't afford to lose my job," even though if the employer were to retaliate and terminate them for reporting the sexual harassment, that in and of itself would also be illegal. But, you know, people get really put on the horns of the dilemma, because the employer has a lot of power, provides them with their income. And in this day and age, it's sometimes difficult to go out and find another job.

Kinchlow: And I've also heard that to successfully prosecute one of these cases, one of the things is that there has to be a pattern, and that takes some time to develop that pattern.

Robiner: Well, I don't know that there has to be more than one incident typically. It's my understanding of it that -- you know, that the person can then tell the person, "No, you shouldn't be doing this to me. I don't want to hear this anymore." But the other part of it is that oftentimes people don't know what to do. Not everybody's taken course about what to do if you are sexually harassed. And beyond that, people often don't know what to do in terms of communicating about conflicts. A lot of people try to avoid conflicts. They're reluctant to assert themselves. And so they may not have the skill set to know how to deal with it, even if they might see that, you know, there's a policy about how this shouldn't be happening in the workplace. They may not still feel like they know how to start talking to people about that.

Sepler: You know, one of the most interesting things -- our firm did some research, and we asked people who were litigants in harassment cases, "Why didn't you just tell the person to stop?" And the number three reason was, "I was afraid I'd lose my job." And the number two reason was, "I thought that they'd retaliate, "that something bad would happen to me.” They might not fire me, but they'd make my life miserable." But the number one reason was, "I didn't want to make the person feel bad.”I didn't want to hurt their feelings. I didn't want to wreck the relationship." And that really goes to the fact that people get very afraid of making a conflict and risking having somebody be hostile towards them. And that is really a fundamental kind of skill that employers really, by providing good sexual harassment training, could be initiating with their employees.

Robiner: Well, oftentimes, people have complex relationships. You know, it's not just unitary that it's just one thing. The harasser might have done some very nice things for the person, some things that they really appreciated that really helped them out. And so trying to then figure out, well, how do you speak about the things that are concerning to you, at the same time appreciating the things that they do? And a lot of people are very not -- you know, are really lacking in those skills.

Langevin: I think it's important to remember that the courts have recognized how -- that it can be very hard for people to say no, that you aren't going to like -- going to be likely to say "Cut it out," to the boss, to the person who writes your check. And the courts have concluded that if a reasonable person would recognize that this is unwelcome, then it is, from a legal standpoint, unwelcome. And a person can be successful. Don't you hear, though, Fran, another reason, and that is, "I thought there must be something I was doing w?"

Sepler: Well, in particular, we find that in many cases, the personal history of the individuals who get targeted are consistent with that, that they have other places in their lives where perhaps they've been victimized or felt vulnerable, and they start thinking, "Gee, this has happened to me before. There must be something I'm doing." And that, the shame of that, keeps them from being willing to speak up. And actually, in my experience, very skilled harassers will instill that in them. You know, "I saw the way you were looking at me." You know, "You came to my office, didn't you?" And it's very easy to set that up. So that's a very good point.

Kinchlow: We've got some other cases. Why don't we take a look at the second case.