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Two years after the U.S. Supreme Court’s landmark rulings clarifying employer liability in sexual harassment cases — and with millions in corporate dollars spent training workers about the hazards of perpetrating or condoning such conduct — experts say that the problem has remained stubbornly persistent. More ominous, says the U.S. Equal Employment Opportunity Commission, is an apparent rise in cases involving the most vulnerable women in the workplace: those filling blue-collar and factory jobs, especially immigrants. “The commission is deeply concerned by an alarming trend in the rise of employment discrimination and retaliation against immigrant workers in low-wage jobs,” says EEOC Chairwoman Ida L. Castro, who is also the commission’s first Latina chair. Castro called such workers “prime targets for abuse and exploitation because they are relatively powerless and work under dire conditions. Moreover, they often speak little or no English and have limited mobility.” EEOC spokesman David B. Grinberg says that such cases of sex harassment are also significant because low-wage jobs are showing the largest increase as a percentage of the national work force. Consider: � On June 1, the EEOC announced a $1 million settlement of a class action against Grace Culinary Systems Inc. and Townsends Culinary Inc. involving allegations of sexual harassment against 22 Hispanic women who worked at a food processing plant in Laurel, Md. The workers, all recent immigrants from Central America who speak little English, claimed that they were subjected to sexual groping and requests for sex from male managers and co-workers over a period of several years. Those women who rejected sexual advances were given menial or more difficult assignments; two pregnant women who refused were demoted and then fired; another woman was locked in a walk-in freezer by her supervisor after she rejected his advances. Grace Culinary, a subsidiary of W.R. Grace & Co., agreed to pay $850,000 to the victims. Townsends Culinary, which bought the Laurel plant from Grace in 1996 and closed it in April, will pay $150,000. � A May 26 ruling by the 6th U.S. Circuit Court of Appeals unanimously affirming an award of damages totaling $407,364 to Sharon Pollard, the control room operator of a DuPont hydrogen peroxide plant in Tennessee, and $252,997 to her attorneys. Pollard v. E.I. DuPont de Nemours Co., No. 98-6317. U.S. District Judge Jon Phipps McCalla, of the Western District of Tennessee, found that Pollard was subjected to continuing sexual harassment by male co-workers since 1987. DuPont supervisors knew of the harassment, the judge determined, but did not take adequate steps to stop it, even after Pollard was forced to take medical leave to seek psychological assistance. McCalla called it a “case of wretched indifference to an employee who was slowly drowning in an environment that was completely unacceptable, while her employer sat by and watched.” � Last year’s $1.9 million settlement between the EEOC and Tanimura & Antle, of Salinas, Calif., one of the largest U.S. lettuce growers and distributors, on behalf of a class of Latino agricultural workers who were required to give sexual favors for continued employment and job benefits at Tanimura & Antle plants in Salinas and in Yuma, Ariz. AN OUTREACH EFFORT Grinberg says that agency officials are concerned enough about the trend that since last year, they have been conducting outreach programs in Chicago, Houston and Philadelphia and other areas that have large immigrant populations. “Many of these people don’t know they have these rights until we make them aware of them,” Grinberg says. The legal landscape for surveying sexual harassment cases was reformed in June 1998, when the Supreme Court ruled simultaneously in two cases: Burlington Industries Inc. v. Ellerth, 118 S. Ct. 2257, and Faragher v. City of Boca Raton, 118 S. Ct. 2275. The two rulings cleared up more than 10 years of contradictory rulings from the federal circuit courts about when a company can be found liable for sexual harassment committed against an employee by a supervisor. The high court ruled that a company can be held liable for an employee’s sexual harassment by a supervisor — even when a corporate sexual harassment policy is in place — if the victimized worker suffered a “tangible employment action” such as firing or demotion. If the employee does not experience any tangible adverse action from being sexually harassed, the Supreme Court says, the company can escape liability with a two-pronged affirmative defense: the existence of an effective sexual harassment policy and both a prompt action by the company to correct the problem and a failure by the complaining employee to use the remedial process provided by the company. The two Supreme Court rulings prompted a rush to attorneys and consultants who specialized in providing model sexual harassment policies and training for companies. Statistically, it may be too soon to tell whether the two rulings and the burst of corporate training have made a difference. According to EEOC data, for example, the number of claims involving sexual harassment rose from 5.7 percent of complaints received in the 1997 fiscal year, to just 6.2 percent in fiscal year 1999. Nevertheless, EEOC data show the cost to employers of sexual harassment cases has become steadily greater: from $12.7 million in EEOC settlements in fiscal year 1992, to $50.3 million in the 1999 fiscal year. Those specializing in sexual discrimination and harassment litigation say that they are not surprised by the persistence of the problem, despite all the money spent by companies trying to armor themselves against such claims. “I have to believe it has made a dent in the situation,” says Nancy O’Mara Ezold, a Philadelphia-area litigator who is also chair of the Women’s Law Project in Philadelphia. “Has it made the kind of difference the public thinks it has made? My response would be no.” Ezold, whose own sex discrimination lawsuit against the venerable Philadelphia firm of Wolf, Block, Schorr and Solis-Cohen rocked the city’s legal community in 1990, now has three lawyers working for her in her 9-year-old firm, which, she says, earns the bulk of its money from employment discrimination cases. “I think employers today are much more savvy than ever before,” Ezold says. “I know they are postering the walls and filing e-mails. My concern is that they are concentrating on the policy and not following up with action. “I think that the money being spent on establishing policies far outweighs the kind of money being spent to see that anyone complies with them,” she adds. Garry Mathiason, a senior partner at Littler Mendelson, in San Francisco, the country’s largest employment and labor law firm, says he believes it is logical that sex harassment litigation appears to be moving into the ranks of blue-collar and minimum-wage employees. The reason, Mathiason says, is that the Supreme Court’s 1998 decisions, in putting a new emphasis on the effectiveness of company policies and corrective actions, have made such blue-collar cases more likely to be financially viable for plaintiffs’ attorneys. LAWYER-DRIVEN INCREASE? “When you take one of these cases alone, you’re looking at very small damages because you have a low-paying job,” Mathiason explains. “Now, when you focus instead on what the company did in response, you have something an attorney can use to enrage the jury and argue for punitive damages.” As a result, Mathiason adds, there has been an increase not only in low-wage sex harassment cases, but also in cases of harassment based on race, gender, ethnic origin and other reasons. Like Ezold, Mathiason believes that companies are still in the middle of the learning curve in dealing with workplace harassment and discrimination cases. The first phase, the rush to adopt corporate harassment policies and procedures, occurred in the first two years after the Supreme Court rulings, he says. Mathiason says that most companies are now in the second phase: training managers to investigate and document harassment complaints properly. He notes that three years ago, his firm’s investigation-training seminar for human resources professionals attracted five people. Last year, he says, there were 25, and this year, there were 35 and a waiting list of 25 more.

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