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One lawyer calls a sexual harassment class action trial “a white buffalo.” So many cases are settled that trials are never seen. Or almost never. A federal court in Chicago is preparing for a white-buffalo sighting. On April 28, the Chicago district office of the Equal Employment Opportunity Commission is scheduled to try its largest case since it settled a sexual harassment complaint against Mitsubishi five years ago for $34 million. Leading employment lawyers say it promises to raise important issues that are rarely explored because so few of these cases are tried. Among the questions: Is sexual harassment too individualized a claim to be amenable to class actions? At what stage should punitive damages be awarded, if they’re warranted? Dozens of women are expected to take the stand to recount their experiences working for the Dial Corp. More than half of the 91 class members still work in Dial’s soap factory in Montgomery, Ill., a blue-collar town 50 miles west of Chicago, where they claim women have been subjected to years of abusive behavior from male co-workers and supervisors. Compensatory and punitive awards are capped at a total of $300,000 for each plaintiff, so the class could recover as much as $27 million. Dial lawyers argue that not all class members are eligible for monetary relief, and the class may ultimately be considerably smaller. EEOC lawyers counter that there is also a chance that the number could expand if a jury finds Dial liable. A PLAINTIFF’S ACCOUNT In an interview, Juanita Flores, who is 47 and has been working at the factory since she was 19, recounted an incident that, she said, still haunts her. It happened in 1992. A pipe insulator, she was on the telephone in a room housing computers. Without warning, she said, a co-worker assaulted her, swinging his arms and grabbing at her breasts. The man’s supervisor walked in, she said, but instead of intervening he laughed. She estimated it continued for 10 minutes. She thought she was about to be raped, she said, while the supervisor watched. Finally, a second supervisor walked in and ordered the man to stop. The fallout: He was suspended with pay, and she needed to take a leave, for which she wasn’t paid. “I had to see a psychiatrist,” she said, because she was afraid to go to work. Flores was one of six women who agreed to discuss their experiences at the factory where five of them still work. Blocks of soap are reduced to bars on its production lines, then packaged and stacked for shipping. Dial lawyers said the factory employs 365 workers; women comprise 45 percent of the work force and about 20 percent of the supervisors, the lawyers said. Dial declined to respond to the specific claims of individual plaintiffs, pointing to a protective order. Though the company disputes some specific allegations, its overall defense is that it took appropriate action when it got complaints. The plaintiffs described an atmosphere akin to a construction site where women are ogled by a gauntlet of men. They said that sexual comments were incessant and that pornographic calendars and magazines were openly displayed above work stations and on desks. They alleged that they were propositioned regularly and subjected to demeaning and hostile treatment. When they complained, they said, the company’s response ran from nonexistent to ineffective. Two of the women directed complaints at a man who, the company says, violated its anti-harassment policy. Ruby Martinez Gordon, 51, has worked in the factory more than half of her life. In 1980, she decided she wanted to be a mechanic — a top-paying job — but her male supervisors told her it wasn’t women’s work, she said. She had seniority, so she signed up for the training anyway. She didn’t know what she was in for. It took eight years to “graduate” from the three-year training program. It was only after she complained to the EEOC — one of the first times a woman there did — that she was certified as the factory’s first female mechanic. During her apprenticeship, she said, a sanitary napkin doused in ketchup was placed in her locker; pictures of naked men and women were rigged to pop out when she opened the locker; and a life-sized penis carved from pink soap was placed beside her tool box. “The message I got,” she said, “was that if I didn’t have that tool, I couldn’t be a mechanic.” The union representative to whom she was supposed to report such incidents was Paul Jones, who, she alleges, was one of the harassers. Patty Daw, 51, also wanted to be a mechanic. She, too, was discouraged from applying. Her supervisor warned that the men she would work with had no respect for women. She applied anyway. But when the man who would have supervised her said the same thing, she gave up. Even so, she was also harassed by Jones, she said. For months he would stop her daily, put his hand on her leg and describe sexual encounters with his girlfriend, she said. Worse, he expressed interest in her daughter. “It just makes shivers go up and down my spine,” she said, fighting tears. She complained often about Jones’ behavior, but nothing was done, she said. She finally took a job she didn’t want in a part of the factory far away from him. Jones retired in 1996 “in the face of imminent discharge for having violated Dial’s no-harassment policy,” said Condon McGlothlen, a partner at Chicago’s Seyfarth Shaw, the outside firm Dial hired to handle the case. Reached by telephone at his home in Aurora, Ill., Jones declined to respond to the allegations. “I’ll leave it alone,” he said, before hanging up. “This is not about the individual allegations of these women,” said Margaret Banas, vice president and senior legal counsel in Dial’s Scottsdale, Ariz., headquarters, who is directing the defense. “The issue is about whether Dial has a standard operating procedure of tolerating sexual harassment. And we strongly deny that.” The company has had a policy against harassment since the 1980s and began training employees in 1991, Banas said. It was recognized by an EEOC “best practices” task force in 1998 for its diversity training. The commendation mentioned a survey the company conducted with former female and minority employees, asking if they’d experienced discrimination at Dial. “The company was pleased to learn that they had not,” it said. “When people have brought forward issues,” said Banas, “we investigate promptly and we discipline. We have a very strong record on our enforcement.” Dial’s lawyers said that even if the EEOC convinces a jury that there was a hostile work environment, that won’t be enough to establish that the company was at fault. Its principal defense, according to Seyfarth’s Michael Warner, who will be lead trial attorney, is that the company got no complaints about many specific incidents alleged in plaintiffs’ depositions. When employees did complain, Dial took action, he said. “There will be evidence that there were terminations and other significant actions in response to sexual harassment allegations that were complained about,” he said. For companies that sell consumer products, the prospect of negative publicity is often sufficient to inspire quick settlements. That’s one reason some observers are surprised Dial has not settled the case. “Dial’s business is marketing to modern American women,” said EEOC lawyer John Hendrickson, expressing surprise that the company hasn’t settled. “They don’t want the reality to be, ‘We were trashing women up and down.’ “ “We are obviously concerned about our consumer base,” Banas acknowledged, “but we have confidence people know what kind of company we are.” When the two sides did discuss settlement, their views of the case’s value were too far apart to bridge, she said. Another deterrent to settlement, said Warner, is that many of the plaintiffs still work for Dial. When a company feels it has no liability, it’s particularly unpalatable to pay employees “money that they don’t deserve.” Barbara Brown who, as managing partner of Paul, Hastings, Janofsky & Walker’s Washington, D.C., office, represents employers, but is not involved in this case, said she applauds companies willing to go to trial. “It’s the only way we’re going to get the law developed and vindicate employers who may not be guilty of what they’re accused of,” she said. Joseph Sellers also sees value in trials. A partner at Washington, D.C.’s Cohen, Milstein, Hausfeld & Toll, which specializes in plaintiffs’ class actions, he is one of the few lawyers who has actually tried a sexual harassment class action. He won a $1.4 million jury verdict in 1995 on behalf of six named plaintiffs representing 350 employees from the District of Columbia Department of Corrections. The verdict was overturned and the plaintiffs settled for $8.5 million. Neal v. Director, D.C. Dept. of Corrections, No. 93-2420 RCL. “Trials are a very important way of educating the public about what goes on in the workplace,” Sellers said, “and raising consciousness about the kind of conduct that should be avoided.” The trial will be unusual not just for its rarity, but for the judge’s plan. If Dial is found liable, the jury will then determine whether punitive damages should be awarded, before another jury decides compensatory damages. Senior District Judge Warren Urbom ruled in February that he will try the case in four phases. A jury will decide whether a pattern of harassment existed, and if so, when. If it finds for the plaintiffs, it will decide whether Dial acted with malice or reckless indifference and, if so, whether punitives are warranted and how much. Then a new jury, and probably more than one, will decide compensatory damages for individuals found to have been harmed during the period identified by the jury. (Dial argues that plaintiffs who left the company before 1991, when the Civil Rights Act of 1964 was amended to allow monetary relief, will not be eligible.) Finally, the judge will apportion the punitive award, if any, to individuals found by the later jury “to have had some damage, compensable or not.” That approach arguably could work in Dial’s favor, since punitive damages in dozens of individual cases could add up to a breathtaking figure. On the other hand, Dial argues, it could produce punitive damages even if no plaintiff is found to have suffered compensable psychological damage. DIAL OBJECTS In a brief, Dial has taken exception to Urbom’s splitting of the punitive damages among multiple juries. The Civil Rights Act of 1991 allows punitive damages if an employer acted with malice or reckless indifference. “There must be an additional finding,” the brief said, “as to who was actually aggrieved by the pattern or practice before a punitive damages determination can be made.” The need to “re-examine” a punitive award in a later phase also violates the Seventh Amendment, which “provides that ‘no fact tried by jury, shall be otherwise re-examined in any Court of the United States,’ ” the brief says. Brown cited a case she argued that resulted in an unpublished 9th U.S. Circuit Court of Appeals decision in February vacating a similar punitives scheme. Beck v. Boeing Co., 2003 U.S. App. Lexis 3619. Noelle Brennan, the lead EEOC lawyer in Dial, said there’s an important distinction between the two cases. In Beck, the court objected to punitives awarded without a finding that the plaintiffs were harmed. Urbom has addressed that, she said. She also noted that the 9th Circuit rejected Brown’s argument that a bifurcated trial violates the Seventh Amendment. “Dial has raised and made all of these arguments to the judge,” Brennan said, “and they’ve lost all of them.” “I’ll concede we’re in uncharted territory,” said Brown, “because so few of these cases go to trial.”

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