NIA | In The News | Harassment claims climb with damages

Cash damages to victims of sexual harassment in the workplace jumped almost 300 percent during the 1990s even as the number of claims rose by just about 29 percent.

But with more than $1 billion paid out in the last 10 years to resolve harassment complaints, companies are finding it costs less to set up harassment-prevention programs than to pay damages in sexual harassment lawsuits.

One possible result: Claims for sexual harassment at work have actually decreased, from 15,836 in 2000 to 13,566 last year, according to the U.S. Equal Employment Opportunity Commission (EEOC).

Denver labor attorneys say a sexual harassment case can cost a business $50,000 to $150,000, depending on whether it goes to trial. Most companies settle such claims, and judges throw out about half the cases that end up in the courtroom.

It costs $8 per employee for businesses to institute awareness programs, according to the Insurance Journal, a trade publication.

Sexual harassment claims filed with the EEOC from 1992 through 2003 rose 28.8 percent, but monetary awards from those claims shot up 293.7 percent.

More age discrimination cases were filed in that time -- 19,124 in 2003 alone, compared to 13,566 for sexual harassment claims -- but they resulted in less damages. Last year, age discrimination claims taken to the EEOC resulted in $48.9 million in monetary benefits, while sexual harassment claims ended up with $50 million in damages.

Sexual harassment at work ranges from a man using "elevator eyes" on a woman employee, or running his eyes up and down her body, to the male U S West phone company worker who got a female co-worker's phone number, harassed her and then killed her. Men also can be sexually harassed on the job, and more are, according to the EEOC.

Management often makes the problem worse by ignoring and failing to act quickly on complaints, not paying attention to witnesses and displaying prejudice against those filing complaints, among other things.

"I have a really nice visual aid to teach managers what sexual harassment is; it uses stoplights," said K. Preston Oade, head of the employment practice group at Denver law firm Holme, Roberts & Owen LLP. "Green-light conduct is very professional talk, very respectful with no foul language. Red-light conduct is unwelcome or unwanted touching, requests for sexual favors, etc. In the middle is all the yellow-light conduct -- asking someone on a date, telling them they look great.

"I have another name for yellow-light conduct -- evidence," said Oade, who generally represents companies in harassment actions.

Companies most prone to sexual harassment claims lack clear boundaries about appropriate work behavior, according to local labor experts. Often employees of both sexes, because of what they were taught growing up, don't know the difference between healthy and unhealthy actions.

That fuzziness combined with the sexually charged American culture can create a recipe for harassment.

"Someone may give somebody a hug, and the other person may not feel comfortable," said Aswad Allen, diversity director at the University of Colorado Leeds School of Business in Boulder. "Someone may make a sexual comment that's offensive, but that's the way they learned to communicate. ... Some people can't turn it off."

Men in positions of power are most often accused of harassment. They may feel a sense of entitlement regarding their behavior toward women, or just not realize their actions are improper, according to area labor lawyers.

"There's something about human beings that when they're put in positions of authority over other people, they sometimes take advantage of that authority," said Sam Cassidy, chairman of the business ethics and legal studies department at the University of Denver's Daniels College of Business. "That always gets you in trouble. With sexual content, it's emotionally explosive as well."

On the other side, recipients of harassment usually are women. They sometimes don't know how to set boundaries -- how to say no -- so they say nothing about bad behavior, and it continues. Such women also may feel out of control in their lives and have a great need for attention, labor experts say.

Still other women file harassment claims out of a sense of empowerment and rejection of old ways of behaving now considered inappropriate and illegal. They no longer accept repeated ogling or unwanted physical contact.

Muddying the sexual harassment waters even more, claims often come down to the individuals' perceptions of what happened because there are no witnesses.

People alleging sexual harassment who want to sue in federal court must get the EEOC's OK via a notice of right to sue, under Title VII of the Civil Rights Act of 1964. Title VII recognizes two types of sexual harassment -- quid pro quo, or submitting to harassment in order to advance or keep a job, and a hostile work environment. The latter involves severe behavior such as ridicule, insults and discrimination.

Once a harassment claim is filed with the EEOC, the commission has 180 days to investigate a case and grant the right to sue, according to Denver's 55-person EEOC office. The local commission's 16 investigators look into most claims, putting some on a fast track and giving others low priority. Some investigations aren't finished by the deadline, but the EEOC gives the right-to-sue authorization anyway.

"After 180 days, they're entitled to the notice of right to sue," Jeanette Leino, acting director of the EEOC's Colorado branch, said of applicants for the notice. "Along with the notice, we can issue cause, meaning we found the law has been violated. Or we can issue no cause."

In 1991, the U.S. Congress amended Title VII, allowing sexual harassment victims to recover compensatory damages. Before then, victims could only get back pay, lost wages and their jobs back if they were fired.

Two years later, in 1993, the U.S. Supreme Court expanded the law's scope by making injury easier to prove.

The EEOC also will mediate a sexual harassment dispute and have its own lawyers represent claimants, if they can't afford an attorney but have a strong case. Besides going to the EEOC, those claiming sexual harassment also can complain to the Colorado Civil Rights Division and even local police.

Beverly Coleman, a former salesperson at the American Furniture Warehouse store in Thornton, filed suit early this month against the furniture store chain's owner, Jake Jabs, alleging sexual harassment, age discrimination, wrongful termination and that he struck her; she also filed a report with the Thornton Police Department. After an investigation late last year, the police decided not to file criminal charges against Jabs.

Jabs also was sued by a former employee for sexual harassment in 1995, but the federal case was dismissed the next year by the judge for lack of cause. Jabs wrote in his 2000 biography, "An American Tiger," that even though the harassment claim was false, it will follow him the rest of his life.

Those exonerated of harassment have little legal remedy, other than suing their accusers for making false claims. Some, like Jabs, become vocal advocates of tort reform to prevent what they call frivolous lawsuits.

In the past, many companies avoided the vagaries of sexual harassment by avoiding the issue altogether. But the best way for businesses to prevent harassment now is to get as clear as they can about it by becoming educated.