COLUMN ONE : System Is Overloaded by Sexual Harassment : Complaints in the workplace have skyrocketed. An overburdened state agency and a painfully slow legal process often leave the parties in limbo.

By DON LEE

June 14, 1995 12 AM PT

TIMES STAFF WRITER

When Brenda Davis’ boss groped her and exposed himself during a business trip to St. Louis, she complained to her company.

And that is where the system started to break down.

At the Laguna Hills bakery supply firm where she worked, Davis was downgraded from saleswoman to office clerk, her commissions were cut and she was given menial duties.

Frustrated, she quit and filed a complaint with the state Department of Fair Employment and Housing. But the agency had so many cases that she was told it would take months before an investigation could begin.

So Davis hired a lawyer and sued the company and the boss. Two years later, jurors agreed that Davis had been sexually harassed and effectively forced to resign. Last month, they awarded her $67,700, a fraction of what she had sought and less than the company’s offered settlement.

Welcome to sexual harassment, 1995, where there has been an explosion of complaints, but where few Californians are finding any quick or satisfactory relief.

The Fair Employment and Housing Department, which enforces employment discrimination laws, is so swamped that many people file complaints, then walk away discouraged after being told they have to wait nearly a year for results. Many employers are uncomfortable with the concept of workplace harassment. And the painfully slow legal system can be a crapshoot that often winds up enriching lawyers more than satisfying the parties involved.

“What it really means is it’s unlikely you’re going to get representation, even if you have a meritorious case,” said Rose Fua, an attorney for Equal Rights Advocates, a public interest law firm in San Francisco that has brought a number of sexual harassment suits.

Fair employment agency officials say the state’s recession and budget cuts have hurt many government services, including theirs.

Since July, the agency has received an average of almost 400 sexual harassment charges a month--about 2 1/2 times the rate in 1991, when the Clarence Thomas-Anita Hill hearings brought the once hush-hush problem into the nation’s consciousness. Hundreds more internal claims are being filed every month with employers, experts say.

At the state agency, sexual harassment has overtaken all other types of employment discrimination claims.

“If you’re being sexually harassed, waiting 10 months is a long time,” said Dona Bertain, a Chico consultant who investigates such complaints, mostly for employers. Moreover, the delay can compromise an investigation, she said, because witnesses may disappear or forget what happened.

“Every month it goes on, people’s memory becomes dimmer. Whether you’re the person who filed the complaint or the [accused], it has serious implications for both sides,” Bertain said.

Alex Kozinski, a federal judge in Pasadena, suggests that in some ways, sexual harassment is to the 1990s what racial discrimination was to the 1960s and ‘70s.

“Whenever people become newly aware of their rights, it takes a while for everybody to adjust,” Kozinski said.

As people are trained in the new sensitivities of the workplace, he said, employers and employees will move past the transitional stage and the complaints will taper off.

But, he noted, “I think we’re still on the upswing for a few years.”

The fair employment agency has about 90 investigators in its 12 field offices, the same number as four years ago, even though its workload for all discrimination cases has climbed 50%, to about 15,500 a year.

When they receive a new complaint, investigators conduct an interview, and if warranted file the charge, then serve the accused party with a request for information. But it often takes several months to get a response from the employer before preparations are made for an investigation. And the agency typically is able take just a handful of the cases it receives each year to the threshold of a lawsuit.

Under state law, the agency is required to investigate or otherwise close a case within a year. But critics say that only forces harried investigators to make a furious push to meet the deadline, often at the expense of a rigorous investigation.

“I have been extremely disappointed in the role of the state agency,” said Donna Ryu, a partner at Ryu, Dickey & Larkin, an Oakland law firm that specializes in employment discrimination. “They are hard-working people there and under incredible budgetary constraints, but the system doesn’t work.”

Agency officials say they have responded to the increased caseload by streamlining operations, installing computers and providing more training. Last fall, managers fanned out to the field offices to clear old cases.

“There’s no doubt people will be frustrated, we’re all frustrated,” said Marybel Batjer, the agency’s chief deputy director. But, she added, “the court system is not faster.”

Because of the complexity and costs of sex harassment cases, most lawyers won’t accept clients without fees upfront or unless there is a good chance for a potentially big award.

But large settlements are rare for low-wage earners because economic damages tend to be based on a person’s salary. That leaves many poorly compensated workers who may have meritorious cases with no place to turn except the government.

Even so, more people who believe that they have been harassed are taking their anger to lawyers, rather than taking a chance at letting complaints languish with the state. About 60% of those who filed sexual harassment charges with the state last year asked for a right-to-sue letter--which is virtually automatic, but required before legal action can be taken.

As a result, sexual harassment lawsuits are piling up in courthouses, some filed by lawyers and their clients hoping for a big settlement or punitive damages, which are unlimited in California.

“Sexual harassment is the kudzu of the judicial system,” Los Angeles labor lawyer Frank Cronin says, referring to the unstoppable weed that has engulfed parts of the South.

Cronin, whose firm Jackson, Lewis, Schnitzler & Krupman represents defendants in employment cases, says most sexual harassment complaints are frivolous or, at best, trivial--rattling off instances of people being accused of reading a dirty magazine or making an occasional off-color joke.

“They’ve replaced the typical fender-bender personal injury cases of the past,” he said.

Fua of Equal Rights Advocates laughs at such comments.

“That doesn’t comport with my experience,” she said. “The figures that the department are showing confirm what we’ve always known--that sexual harassment is a very big problem for women in the workplace.”

State investigators won’t comment about the quality of sexual harassment complaints they receive. But a breakdown of what happens to most cases provides some clues.

Records show that in the past three years, 8,538 complaints involving sexual harassment were lodged with the state, of which 4,806 were closed after complainants obtained authorization to sue.

Of the remaining cases, about one-third were closed or rejected by the agency because of insufficient evidence, the complaint was withdrawn, or the complainant was unavailable or failed to cooperate. Another 25% were resolved by the parties, either privately or during formal settlement or conciliation efforts initiated by the state.

“It’s a mixed bag,” said James R. Milliken, presiding judge of San Diego Superior Court. “A percentage of [harassment suits] are meritorious, and a percentage of them are rather clearly unmeritorious. The average case lies in between.”

A review of complaints filed shows that few involve a boss issuing the ultimatum: “Have sex with me or you’re fired.” Rather, most complaints involve what’s called the “hostile environment.” And these run the gamut, as a sampling of recent complaints filed in Orange County show: a secretary alleging that her supervisor jokingly asked her to pose as a prostitute; a billing clerk claiming that a physician she worked for pressed his crotch against her, and a marketing assistant who said her boss stroked her hair and “imprisoned” her in his office by blocking the door.

Although most of the charges continue to be brought by women against men, filings by men are increasing, as are same-sex complaints. And more complaints are being filed by customers, vendors and third parties. Most cases are filed against supervisors, which subjects the company to automatic liability. Employers are also liable for harassment by co-workers if they do not take immediate action to stop the abuse.

Because most cases are settled or dismissed, a small percentage of complaints result in lawsuits, and an even smaller fraction wind up going to trial--although that number is increasing.

Last year, at least 27 cases involving sexual harassment went to trial in California--more than twice the number in 1993 and far more than the handful annually in previous years, according to an analysis by Orrick, Herrington & Sutcliffe, a San Francisco law firm, and other reports.

“What I think is happening is people are taking it less and are more willing to sue over it,” said Jeffrey D. Wohl, a partner at Orrick, Herrington, which represents defendants in employment discrimination cases. “It’s an era of political correctness, and everyone’s on tenterhooks,” he said, adding that the recession has hardened attitudes in California.

“You have an environment of employees who are more willing to take an adversarial stance and are more willing to roll the dice on litigation to redress perceived wrongs.”

Between 1991 and 1994, plaintiffs in California won about half of the approximately 50 trials involving sexual harassment, reports show. The average total jury award: roughly $350,000 per case.

That does not include a $7.1-million award last year when Baker & McKenzie, the world’s largest law firm, was ordered to pay punitive damages to a legal secretary at its San Francisco office. She had claimed that a partner of the firm made bawdy remarks and grabbed her breast while dropping M & M candies in her blouse pocket. (The award has since been cut in half by a judge.)

Milliken attributes part of the plaintiffs’ success in sex harassment cases to California’s poor economy and the fact that nine out of 10 such complaints involve a person who has left the company. “In hard times when people value their jobs,” Milliken said, “wrongful termination [lawsuits] tend to be a little more successful.”

But Milliken also observed that it is very difficult to tell which way a jury will go: “They’re very much a tossup. You can win a case you expect to lose, and lose a case you expect to win.”

That unpredictability and the occasional huge award have forced some employers to take steps to stamp out sexual harassment.

Cypress-based PacifiCare, a health maintenance organization, is sending all 4,400 of its employees for sexual harassment prevention training. And at Sizzler International, the Los Angeles-based restaurant chain, managers not only must take a three-hour workshop, but must pass a test afterward to keep their jobs.

Still, most experts agree that many smaller and mid-size employers have been slow to train workers or accept the new rules of the workplace. And until they do, experts say, sexual harassment complaints probably will continue to snowball.

Fred Ashley, a Laguna Niguel lawyer and arbitrator, believes the solution lies largely in the way employers respond to complaints. Although more employers are taking cases to outside consultants and mediators, Ashley said, many are reluctant to aggressively investigate allegations, fearing that a finding of sexual harassment will only make a company liable for damages or force it to fire a valuable worker.

But in fact, Ashley said, a thorough investigation and prompt disciplinary action are likely to protect a company from big punitive damages and would send a stronger message to workers that sexual harassment will not be tolerated.

Said Ashley: “Employers should just approach this whole area totally honestly and let the chips fall where they may.”

Kozinski, the federal judge, agrees that employers are partly to blame. “A lot of these things tend to get out of control because of denial of the problem--and that comes from lack of experience.”

But in a recent article, he also called for a measure of restraint from workers.

“Women must be vigilant of their rights, but must also have some forgiveness for human foibles: misplaced humor, misunderstanding or just plain stupidity,” Kozinski said. “Transgressions should be noted, and an apology or correction obtained. But it is important for everyone to try to mend the working relationship, not rush into a lawsuit.”