A Brief History Of Sexual Harassment
July 25, 2013 12:54 p.m.
Patti Perez, President/CEO Puente Consulting, former Commissioner on California's Fair Employment and Housing Commission
Doreen Mattingly, Associate Professor of Women's Studies, SDSU
Related Story: A Brief History Of Sexual Harassment
CAVANAUGH: The allegations against San Diego Mayor Bob Filner have been picked up by the national media and lumped into stories about other political sex scandals. But there's a substantial difference in what's being alleged about mayor Filner. He's not being accused of having a mistress or a willing internet girlfriend. Women are accusing Mayor Filner of nonconsensual sexual actions and comments. In other words, sexual harassment. And there appears to be some confusion about what sexual harassment actually is. Joining me now to help explain this are my guests, Patty Perez, with Puente consulting. She's an attorney who practiced employment law, and she was a commissioner on California's fair employment and housing commission for three years. Welcome to the program.
PEREZ: Thank you so much for having me.
CAVANAUGH: Doreen Mattingly is an Associate Professor of Women's Studies at San Diego State University. Welcome.
MATTINGLY: Thank you, Maureen. Happy to be here.
CAVANAUGH: How long have we actually been using this term, sexual harassment?
MATTINGLY: The term was developed in the early 1970s by feminist activists and lawyers, who were trying to find a way to explain the way discrimination off took place against women. That it wasn't the refusal to promote, but it was the way women were objectified in the workplace, or harassed, often in a sexual way, but not necessarily. So they coined the term sexual harassment to point out the actual experience of discrimination for women.
CAVANAUGH: And Patty, understanding what sexual harassment means in legal terms, that's evolved since I suppose the civil rights act of 1964, isn't that right?
PEREZ: That's right. An interesting story I always tell people when I train them to sexual harassment prevention, gender was not originally included as a protected category in the Civil Rights Act. It was a law that was primarily aimed at protecting ethnic minorities. It passed despite the fact that it was put in there to try to defeat its passage. But that only protected against discrimination. The sexual harassment claim really came to be the quid pro quo version in 1977 from a legal perspective, and it has evolved quite a bit since then. Both on the national scale and certainly for our purposes in California, it has particularly evolved.
CAVANAUGH: And when did we first start hearing about hostile work environments? What does that mean, and when did that come about?
PEREZ: The first case as I mentioned earlier was a quid pro quo case which is if you have sex with me, I'll hire you, or there will be some promotion or benefit at work. And it was classified specifically as a form of gender discrimination. It wasn't until 1986 that the first Supreme Court case came out that not only used the term sexual harassment but in the context of what we now call a hostile work environment. That was the first time we heard that phrase.
CAVANAUGH: I guess this is sort of a difficult question to answer, but what actually constitutes sexual harassment? Are there a wide range of actions? Is this a way to define it?
PEREZ: Well, there is. And certainly there are going to be different ways, because there is the legal definition which is different from certainly the way in which it's used in popular culture which is just as valid. There is harassment that may not rise to the level of illegality. From a legal perspective, and I'm concentrating on the hostile work environment type, there are some specific characteristics, and specific legal elements that need to be met in order for it to be called illegal. The primary ones are that it has to be conduct that is sexual in nature, and that's got nuances to it. It doesn't mean the person has to be hitting on you or sexually attracted to you, simply that it has to be of a sexual nature, or sexually charged. That unwelcomed conduct has to be proven, so the person has to prove she was offended. In addition to that, the behavior has to be either severe or pervasive. So it has to be quite serious, a severe action, or pervasive, meaning repeated. But again, a decision-maker is the one who decides what pervasive mean. Does it mean five time, ten times? It depends on the circumstances. And finally, it has to unreasonably interfere with the plaintiff's ability to do her job.
CAVANAUGH: Legally, someone has to be employed by the offender to charge sexual harassment?
PEREZ: Sure. Again there are some nuances. You might be a temporary employee who worked for a temporary agency and is assigned to a particular assignment, but yes, you have to have some type of employment relationship to fall under the protection of what in California we call the fair employment and housing act.
CAVANAUGH: Is this a criminal offense?
PEREZ: No. Certainly the surrenders -- it could be. But the standards I just delineated are for civil actions.
CAVANAUGH: When could it be?
PEREZ: Well, certainly there could be assault charges or assault circumstances under which an assault or battery charge could be brought. But that would be separate from the civil charges.
CAVANAUGH: And what are the penalties for those found guilty?
PEREZ: California as most people know certainly has expansive rights for workers. So for example, there are monetary damages that a plaintiff can obtain. In California, those are unlimited. Under Title 7 there are some limitations. There is also some injunctive relief that can be brought, restatement or other types. But primarily, it's monetary damages for either back wages, forward pay, or a motion to distress damages.
CAVANAUGH: Doreen, employers private and public have done extensive training on avoiding sexual harassment in the workplace. Is it your sense that this training has made a difference?
MATTINGLY: Yes, studies vary on this, whether or not it makes a difference. Some studies show trainings can reinforce people's gender stereotypes by portraying women as victims and men as perpetrators. And some show the biggest effect of trainings like this is that it empowers people who are victims of sexual harassment and encourages them to come forward about it. They feel like they're supported because of the training, and they understand their rights. So trainings can be followed by increases in reporting because the awareness is felt more on the part of the victims rather than on people who might be perpetrators of sexual harassment.
CAVANAUGH: I'm going to ask you both this question, and very short replies if you could, is there still a sense that allegations of sexual harassment are just annoyances, Doreen?
MATTINGLY: I think so. I think it depends a lot on the perspective of the employer, and what kind of occupation or profession or industry that you're in. But certainly what we've seen in terms of sexual assault charges in the military, how long it took to be taken seriously tells us that, sure, in certain professors, it's still treated as an annoyance.
PEREZ: I agree. I think there are certain circumstances I have found where employers feel like this has gone too far, that the pendulum has swung too far the other way.
CAVANAUGH: Let me take this break, and just let everyone know that this morning, Mayor Bob Filner actually made a rare public appearance. He was attending the opening of the Blue Line Trolley in Barrio Logan, but he did not address the sexual harassment charges made against him. When we return, we'll talk about some of the comments made about the accusers of Mayor Bob Filner, and why some sexual harassment victims are reluctant to go public.
CAVANAUGH: Our discussion about sexual harassment continues. One question that's been asked over and over again is why have these women alleging sexual harassment from San Diego Mayor Bob Filner not come forward sooner? Doreen, what are some of the reasons?
MATTINGLY: Well, it happens to think about who is likely to be a victim of sexual harassment. And sexual harassment is most common when there's a big power differential between the harasser and the harassed. Whether a person who's a supervisor harassing someone who's a temp, or there's a difference in age or money or security or race. So those most likely to be victims of sexual harassment are most vulnerable in a workplace. So people don't come forward because they're afraid the outcome will be they're the ones who will lose their job, or moved, or there'll be retaliation against them because they're already vulnerable and they need that job. I think also psychologically, some people differ in terms of whether they worry about the effect, wanting to protect the person who's harassing them, whether or not they see it as sexual harassment, whether or not they find the behavior offensive. And so there's a kind of personal variation in how people internalize what's happening to them.
CAVANAUGH: Patty, the -- one of the women making allegations, in fact the woman who has now filed suit against Mayor Filner and the city, Irene McCormack, I've seen clips of the news conference on national news programs, basically all over the nation at this point. Is that pressure that perhaps keeps some women silent that they just simply do not want this to be known outside, that they're embarrassed about it?
PEREZ: Absolutely. And my experience in addition to the factors already mentioned include will which affect, and this is particularly true with women who may be have a little bit more power, is this going to affect my reputation and my ability to get a job? Or just how I'm viewed within my community. Certainly is this going to involve an investigation that will delve into some personal matters that I don't want to have to discuss? And certainly issues that are embarrassing or private. And another factor that I see quite a bit is it really depends on what the overall work environment is like. If you have a work environment where this is rampant, where this type of behavior is tolerated, particularly if it's tolerated at the highest levels, I've had investigations where I've conducted against a particular party, but for example the CEO engages in the behavior as well. That's going to make the victim less likely to come forward if she feels like it's not going to be taken seriously.
CAVANAUGH: I want to talk about some comments that we've received on our website about these stories. One overall comment Doreen seems to be these women by coming forward now and not before the election, if these allegations are true, have done a disservice to the city. How would you respond to something like that?
MATTINGLY: It's kind of interesting, the way in which -- when a person comes forward as a victim, we think about their responsibility to other people rather than what their experience of being victimized was. Somehow people who are saying they have been victimized, we are thinking that they should somehow be responsible for the mayor's behavior and our behavior in voting for him. So I understand where people are coming from, but I also think the problem here is not these women. The problem, if these accusations are accurate, is with the mayor. And so maybe it would have changed -- also maybe it would have changed the outcome of the election, and maybe it wouldn't have. And I think that -- I hate to blame women for not taking an enormous risk with their career and with their job and their personal life for the outcome of an election.
CAVANAUGH: Let me go to another comment that we've been receiving. Three women have already come forward in the mayor's case, alleging sexual harassment. And there have been many comments on our website, the second woman interviewed alleged that several years ago, Bob Filner patted her on the behind while she was working as a congressional campaign staffer for him. And one commenter said that the woman "looks and dresses like a high-priced call girl. One pat on the backside at a party? If I met this woman at a party, I might do the same." So Patty, I want your response to this. This woman, by the way, she acted somehow -- initiated this response, this whole situation that she described?
PEREZ: Certainly there are going to be some responses that go beyond the legal perspective. But I'll give my take. As a mentioned earlier, from a legal perspective in terms of trying to prove whether there was unlawful sexual harassment, one of the elements is that it has to be unwelcomed conduct, and it has to be subjectively unwelcomed. So what most people get to is was it really unwelcome? Was she inviting this type of behavior? And I will tell you that in my experience legally, that would be a tough road, simply by saying that she dressed provocatively, it would be difficult to say that that in and of itself meant she was inviting this behavior and that she found it welcoming or somehow she was okay with it. There are certainly examples where it becomes very difficult for a woman to prove that unwelcomeness if she very willingly participated, for example, in sexual banter, and there are other issues that are beyond the legal component of are you creating perceptions, whether you're a man or woman, in terms of professionalism. But I certainly don't think that that adds up to subjectively being welcomed behavior.
CAVANAUGH: Isn't it infuriating to read something like that where we are in the world by the way a woman is dressed she's welcoming a sexual advance?
MATTINGLY: Well, it's infuriating to me, but not to the person who wrote it, obviously. And part of it is an issue of perception. And I think that even the law has recognized in sexual harassment that there's a reasonable woman standard, that oftentimes women perceive sexual behavior in a more threatening or demeaning way than men do, and perceptions are different on this. And I think that's one of the enduring things. I also think we live in a culture where women are rewarded for being hyper-sexualized in terms of the media portrayal. And so there's a conflict in values between what's portrayed in the myself, are and the kind of workplace relations that we expect. And I think we all have to negotiate that conflict. It's not one individual woman's responsibility or problem or issue, that inherent conflict that we have.
CAVANAUGH: Obviously when someone is making allegations, they're not automatically to be believed. They're to be scrutinized. When it comes to sexual harassment cases, is there any way to raise questions about the victim or their story in an appropriate way?
MATTINGLY: Well, I guess you'd want to know whether they had make such accusations before, and what the outcome of such a case was. I think maybe Patty would be better to answer this.
PEREZ: Sure. My practice is in pre-litigation, conflict resolution. The questions that I ask women in this position certainly have to do with what was your reaction, tell me exactly what was said, how many times it was said, who witnessed it, and certainly making both parties feel like I'm not making any judgments, I simply want the facts. I just want to make sure that I understand exactly what happened and even including details about the physical touching in this case. So there are ways that you can ask without being offensive.
CAVANAUGH: Thank you very much.