FYI: Gender discrimination was added to the Civil Rights Act of 1964 by men.

Why the frequency of sexual harassment lawsuits in SLO County is diminishing

BY DANIEL BLACKBURN

The Darlene Swack sexual harassment settlement may not be the last successful sexual harassment case in SLO County, but if recent indicators prove correct, it could be.

John Carrerras probably didn’t plan on becoming a public example, but he hurtled into the spotlight earlier this month when his longtime employer, the San Luis Coastal Unified School District, agreed to fork over tens of thousands of public dollars on his behalf to a former co-worker claiming sexual harassment.

You’re not supposed to know about this. The deal struck between the parties and sanctioned by a superior court judge is officially "sealed." The exact amount of the settlement check written out of taxpayers’ funds to Darlene Swack remains shrouded in secrecy, thanks to a court order. None of the participants would discuss the amount, or the particulars of the case.

What is known from minimal court records is that Swack was an electrical technician for the school district, and Carrerras was her supervisor. As a result, the two worked together often on projects in the field, usually out of the presence of other co-workers.

In December 2001, Swack hired San Luis Obispo attorney James McKiernan and filed a million-dollar lawsuit against Carrerras and the school district.

In the dry, matter-of-fact language of the legal document, Swack charged her former boss with sexually harassing her "by gesture, words, and actions in a gender-based and discriminatory manner. [Carrerras, by his] unwanted sexual gestures, words, and actions, [committed] assault, battery, and sexual battery."

He made it clear, said Swack of her alleged antagonist, that her job was on the line if she didn’t cooperate, charges the lawsuit described as "quid pro quo." Additionally, according to Swack, Carrerras created a "hostile work environment" in which she was forced to work. He touched her improperly, Swack alleged, and often "gave the impression of touching." And, she added, he threatened her with retaliation if she told anyone.

According to Swack’s complaint, "she tried and failed to end the harassment" by discussing her issues with district officials, but nothing was done to change the situation.

Carrerras’ behavior was said to be "outrageous, extreme, malicious, and oppressive," and as a result Swack suffered "injured health, strength, and activity, and sustained shock and injury to her nervous system and person, resulting in earning loss and loss of earning capacity, economic loss, pain and suffering, and medical expenses."

Taken together, the allegations comprised a textbook complaint for sexual harassment and retaliation, and it took only 10 months for school district officials–represented by SLO attorney Scott Radovich–to capitulate and reach for the checkbook.

And then everyone involved clammed up.

If all had gone as expected, the case would have drifted mutely into the annals of anonymity like thousands of similar actions adjudicated each year all across the country.

The case was surprisingly uncommon in an era where sexual harassment cases show signs of slowing. There are indications that fewer sexual harassment cases are being pressed now than in previous years. What had emerged as a politically correct litigation craze in the late 1980s, ensnaring tens of thousands of people, may actually be leveling off.

Sexual harassment, under law, comes in two forms–"quid pro quo" and "hostile working environment." The former is pretty straightforward: "Sleep with me or you’re fired." Essentially, "quid pro quo" harassment involves making conditions of employment such as hiring and promotion, or even retention, contingent on the provision of sexual favors. A "hostile working environment" pertains to sexually offensive situations created by co-workers and tolerated by management.

Attorney McKiernan, while declining to discuss the Swack case directly, said he thinks the trend to sue at the drop of a sexual innuendo is diminishing.

"I have no statistical data to prove that," he said last week. "But just on appearances it does seem that there are fewer cases than in prior years."

McKiernan litigated one of the earliest sexual harassment cases in San Luis Obispo in 1990, a high-profile drama in which a top-ranking county official found himself on the receiving end of an embarrassing and career-ending lawsuit.

In that instance, Paul Floyd, auditor, was accused by six women in his office of touching, pinching, and grabbing them repeatedly over a period of years, often spicing his activities with lewd comments.

The women approached McKiernan after a county grand jury declined to take action on their complaint. McKiernan remembers being "laughed at and ridiculed" by his peers in the local law establishment when he took on the case, partly because of the stature of the defendant, partly because of the relative rarity of sexual discrimination complaints at that time.

The laughter faded when county supervisors, fearing a lurid courtroom confrontation, settled with the women for $300,000. The plaintiffs also got an apology from Floyd, who refused to resign but lost his seat in the next election after tabulating only 10 percent of the vote. County officials estimated the litigation cost taxpayers a total of $700,000.

When the smoke had cleared, McKiernan said he hoped the Floyd case "helped increase public awareness of sexual harassment."

Whatever the impetus, cases involving allegations of sexual harassment sprouted nationally during the next decade at a startling rate.

The phenomenon delighted barristers because the definition of sexual harassment was quite murky, and cases multiplied while employers scrambled to learn recently written rules.

Federal anti-discriminatory laws on the books since the early 1960s covered sexual harassment actions, but there were comparatively few lawsuits based on unwanted sexual attention until almost 20 years later. Those lawsuits, according to government statistics, show that a very small percentage of the sexual harassment lawsuits filed between 1964 and 1984 resulted in even prosecution of claims. Most were simply dropped with no results. But after a few judicial guidelines finally began to appear, a blueprint of sorts was created for the more imaginative lawyers of the era.

Then, In October 1991, former law clerk Anita Hill appeared before a Senate committee.

Her lurid tale of the sexually charged antics of her former mentor, Clarence Thomas, surfaced during his confirmation hearings for a lifetime seat on the U.S. Supreme Court. The televised hearings played to great ratings and were the talk of the country for weeks. The resulting brouhaha very nearly cost Thomas his chance to serve on the nation’s highest court.

From 1990 to 1995, the U.S. Equal Employment Opportunity Commission (EEOC) reported a 248-percent increase in the number of sexual harassment cases it was handling, from 5,636 complaints to more than 14,000. During the same period, monetary benefits for plaintiffs also were soaring, jumping from $7.7 million in 1990 to $24.3 million in 1995; a 315-percent hike.

No one knows how many thousands of other sexual harassment lawsuits resolved privately since specific case law began to develop. For every confrontation that made it into the public eye –usually in cases involving public agencies or celebrities–hundreds more were settled privately and quietly with the exchange of a check, and maybe a subtle departmental transfer or dismissal of the offending parties.

Much litigation occurring during this time was loaded in favor of the plaintiff, not because of the strength of Individual claims, but because of the dearth of defense strategies for the parade of defendants. In many instances, the mere filing of a sexual harassment lawsuit was enough to trigger a cash settlement. Lawyers were no longer laughing at the notion of sexual harassment, choosing instead to sharpen their skills in anticipation of lucrative opportunities.

With national curiosity of the emerging social trend sharpening, several high-profile 1993 San Luis Obispo cases helped generate interest among local plaintiffs’ lawyers.

Lt. Bill Sapp, a member of the Grover Beach Police Department, was accused by three female subordinates of sexually suggestive and demeaning behavior. They sued for $3 million, which got significant attention. The case was settled quietly and disappeared without further fanfare from the radar.

Mitch Powers, the county clerk-recorder, was accused of weaving a salacious history of bothering women while in office, and was hauled into court by several female county employees who wanted more out of their efforts than just cash: They forced him to quit his job and apologize, and accepted only $16,000 to cover lawyer fees and related court expenses.

And actor Mel Gibson apparently took the wrong girls home while he worked on the set of a movie in Bakersfield. A Cal Poly student who was part of a small group of women accompanying the actor after a night of drinking sued for harassment. The case got national attention before being settled for an undisclosed amount.

The same year, a man excluded for employment sued the Hooters restaurant chain for sex discrimination and harassment, claiming the only waiters hired by to work at the restaurant "had large breasts."

Hooters officials, faced with a settlement offer which they found incredible, declined and instead launched a public relations campaign which wondered, "Doesn’t the government have anything better to do with taxpayers’ money?"

It was a hugely successful campaign, and public sentiment for harassment allegations began to wobble. When Hooters portrayed their bosomy waitresses as being "on the endangered list," the EOOC all but surrendered. Three years after the agency tackled Hooters, it dropped its investigation entirely, taking no action.

McLintock’s, the popular eatery chain, got hammered in a lawsuit filed by female employees who claimed their workdays overflowed with kinky commentary from male co-workers and creative, sexually oriented creations from the kitchen. San Luis Obispo’s Sterling Ball, president of one of the nation’s premiere guitar and component manufacturers, paid up to settle a lawsuit filed by a trio of female employees.

As more and more litigation ensued, guidelines for defense became guidelines for prevention.

In general, a sexual harassment defense would incorporate a collection of "The Big Ten": Too many women cry "wolf." She didn't report it in time. She stayed too long. Nothing serious happened. She is exaggerating and overly sensitive. She’s lying. She invited it. She has other personal problems. Her problem is a pre-existing situation. She participated willingly.

From these claims evolved a number of "red flags" for business owners. They were warned by their lawyers to watch for signs of certain departments or areas under their purview where women were unwilling to work, or even visit. Was there a proliferation of gender-related transfers from any particular department? And were rumors circulating that "somebody’s going to get the company in hot water?"

But the tide eventually began to turn, helped along, perhaps, when a sexual harassment lawsuit filed by Paula Corbin Jones against President Bill Clinton was dismissed April 1, 1998, on a motion by Clinton for summary judgment.

Sexual harassment lawsuits have at least leveled off, if some California data is correct.

According to the California Department of Fair Employment and Housing (DFEH), complaints handled by department officials have remained constant since 1994, hovering between 4,000 and 5,000 investigations annually. Last year, there were 4,261 cases that came to the department’s attention.

"It’s been pretty consistent," said the department’s Dia Poole.

Just last summer, a former executive for a major beer maker won a multi-million-dollar lawsuit against his former company for wrongful termination. The Missouri jury found his conduct was not harassment and that it was "improper to fire and cause resulting career damages to an employee based on behavior that was not intended to be and did not constitute gender-based work discrimination or a hostile work environment."

Cathrine Bazzani, director of the San Luis Obispo Economic Opportunity Commission, a non-profit entity, said she thinks education has impacted the apparent declining frequency of sexual harassment cases.

"The more that people learn about what sexual harassment is, and how to prevent it in the workplace, the less often these situations will occur," Bazzani said. "And people get less interested in the issue."

Bazzani suggested that lawyers for defendants are getting smarter, too, and the chances of a countersuit are greater.

"Or maybe the press is just less interested, unless there's a celebrity involved," she added.

People inclined to file a lawsuit for sexual harassment these days are considering the downside to litigation, such as reputational damage, lost time, and much personal grief. Adding to reluctance of purported victims to leap into the legal fray is the reality that jury sympathy has at least equalized between plaintiff and defendant. The possibility of successful counter-lawsuits now looms large, too.

The current attitude toward sexual harassment lawsuits might be summed up in the comments by Dr. Camile Paglia in a 1998 Time magazine viewpoint:

"I’ve long held that no person in power should demand sexual favors in return for a high grade or promotion," she wrote. "But the secondary ‘hostile environment’ policy, which allows employees to file lawsuits on nebulous grounds of psychological distress, is grotesquely totalitarian.

"It offends free-speech rights and is predicated on a reactionary female archetype: the prudish Victorian lady who faints at a sexual innuendo. This isn’t feminism; it’s Puritanism. Women must also watch how they dress and behave. For every gross male harasser, there are 10 female sycophants who shamelessly use their sexual attractions to get ahead." Æ

News editor Daniel Blackburn can be reached at [email protected].