In the last issue of DataLine, we looked at the high personal and economic price that women who sue their employers often pay. Most women who sue over discrimination or harassment, however, say that they do it not for personal gain or private vindication, but to change things for other working women. The question, then, is what impact these lawsuits actually have on corporate defendants. Do lawsuits inspire genuine change, or are they simply settled and forgotten?
The long-term impact of litigation varies from company to company, and from lawsuit to lawsuit, agree both plaintiffs and defendants. As San Francisco defense attorney Jeff Paccassi puts it, "I can think of some instances where people say 'What do I have to do to get it right?' And others where they say 'Oh, don't worry about it.'" But the consensus is that the last decade's flood of discrimination and harassment lawsuits has in fact forced changes in corporate behavior.
"The main motivation for changing behavior is the tremendous cost of litigation," concedes the general counsel of a large corporation that is currently defending itself against its second major discrimination class action suit in several years. The response of the corporation this man represents, however, indicates that a defendant's idea of "change" may be less a good faith effort to improve workplace relations than a cosmetic effort to improve corporate image. While some corporate defendants do make a genuine effort to improve working conditions, others concentrate their efforts simply on trying to avoid or successfully defend against lawsuits.
According to the above general counsel, for example, his company "hired a lawyer to give analytic and remedial instruction" on discriminatory attitudes and practices to employees after the second lawsuit was filed. According to opposing counsel, however, this lawyer/consultant simply "brought people into a meeting for something quite pro forma, and gave them a forum to talk about how women were no good. People said incredibly discriminatory things and then walked out of the room. There was no fol It was clearly designed to try to impress the judge."
In fact, the move had just the opposite effect from that which the company had intended. The judge ruled that because the trainer was acting as a consultant rather than as a lawyer the contents of the training were not privileged, and the material the trainings unearthed was used as evidence of discriminatory attitudes that the corporation was aware of but failed to address. According to the opposing counsel, the consultant actually "got up and said 'The only reason I held these meetings was to de is lawsuit.'"
The above-mentioned general counsel uses this "tremendous disaster" as evidence for his claim that "litigation is an impediment to quick and decisive action." He adds, "The irony is that the length of litigation has frozen us from making changes unilaterally. We have to either negotiate a consent decree or wait until the court enacts it. It's a slow and inefficient way to get change. My view is that if there is a good faith effort to change it is impeded by the existence of a lawsuit that has as injunctive relief." He was, however, unable to produce evidence that his repeatedly-sued employer had made any "good faith effort to change" that had not been inspired by litigation or the fear of litigation.
Whatever its limitations, litigation generally has much more impact than an internal or agency-investigated complaint. "There's a real reluctance to change the way things are being done," says San Francisco employment attorney Laura Stevens, who has represented both plaintiffs and defendants. "If there's no real pressure, the status quo will be maintained. And real pressure comes when charges are filed." Stevens says that she has seen corporations thoroughly revamp personnel selection policies in respons e to allegations of discrimination. Sometimes, however, companies have to be prodded a bit to look after their own self-interest. Stevens says she represented a food processing plant in the Northwest that was charged with discrimination by the EEOC in the late 1970s. As a result the company was forced to integrate its job categories, but the plant soon moved to southern California, where the sex-based categories were promptly reinstituted.
Sometimes, however, companies have to be prodded a bit to look after their own self-interest. Stevens says she represented a food processing plant in the Northwest that was charged with discrimination by the EEOC in the late 1970s. As a result the company was forced to integrate its job categories, but the plant soon moved to southern California, where the sex-based categories were promptly reinstituted.
"I came in and pointed out that we were replicating sex-based classifications while in the middle of a lawsuit," Stevens says. "I showed them the legal bills they'd already incurred in the North and said "You can have the same in the South. You can make me rich, but it won't do you any good." Her client took her advice and revised the job categories. Often, however, it is the worst offenders who are the least responsive to litigation, sometimes continuing discriminatory practices even at great fi cost to themselves. Attorney Donna Ryu of Saperstein, Seligman, Mayeda and LarkinÄan Oakland, California firm which specializes in sex and race discrimination class action suits against large employersÄsays "We do see repeat offenders that are taken to the mat again and again." State Farm Insurance, for example, has spent millions of dollars over the years defending itself against and settling two sex discrimination lawsuits, as well as a racial discrimination lawsuit filed by the EEOC, and is currently defending itself against yet another lawsuit, this time for age discrimination.
Nevertheless, attorneys at Saperstein are convinced that class action suits are an effective way of changing corporate behavior. Founder Guy Saperstein says that out of the 30 to 40 consent decrees his firm has negotiated, there has been only one problem with monitoring compliance. Even State Farm, he believes, has changed for the better as a result of being sued, despite some continuing problems. Saperstein attorney Jocelyn Larkin says that one reason for the firm's success is that they design their consent decrees carefully to make sure change is institutionalized. "Money hits are important," she says, "but setting up a structure can really make the difference." For example, says Larkin, "We try when we settle to build in financial incentives for people to help women succeed. If you just give people numbers they feel resentful. Many hire women and then don't support them, making them fail, which supports the stereotypes." One response to this danger, Larkin says, is to build in bonuses for managers if women working with them stay for over a year.
Saperstein lawyers also try to ensure that the demand for change is delivered by top management, through, for example, meetings and trainings on implementing the consent decree. "If you have mixed signals from the top it's hopeless," Larkin explains. "A commitment from the top is a big factor" in whether a consent decree is successfully implemented.
Some companies respond to the threat of litigation by improving not their personnel policies but simply their methods of documentation. Defense attorney Paccassi puts it simply: "The more documentation you have the more likelihood that you can defend yourself. I would think that a prudent employer would rely more on documentation these days than in the past, because everyone is sensitive to the fact that you can be sued at any time for any reason." These changes in documentation often take the place of more substantive changes. "Usually if you're sued it's not so much that policy changes as that you go in and clean up and document things better," explains Jeanne Palmer, director of human resources at a Silicon Valley technology firm.
Companies that are cited for discrimination sometimes perceive the problem as one of documentation even when discrimination has clearly taken place. The training director at a major defense contractor says that although her company has been sued on several occasions, there were "no legitimate suits. We lost some, but we weren't discriminating. We lost because our records weren't good enough. We couldn't prove that treatment was consistent." As an example, she cites a case in which her company hired 25 people at once in a certain division, all of whom "happened to be" white males. When the OFCCP investigated, they found a number of applications from qualified women and minority candidates who had not been considered for the positions. When asked why the company had interviewed none of these candidates, says the training director, "We told them it was because of sheer volume. We had so many resumes we didn't even kn ow we had them." This omis sion, she says, was "another example of sloppy personnel practices. I think it's understandable in the situation, but it wasn't considered an acceptable defense. There was no discrimination involved." Although they are sometimes used as a substitute for deeper change, improvements in documentation -- especially those mandated by consent decreesÄcan also in themselves lead to genuine attitudinal change. Attorney Jocelyn Larkin of Saperstein, Seligman, Mayeda and Larkin says that instituting documentation requirements is an important part of settling most discrimination class action lawsuits. "The documentation process creates a kind of accountability that actually has an impact on people's unconscious a ttitudes," she explains. "If you put structures in place that make people accountable the response is that people do not rely as heavily on stereotypes."
In general, the long term impact of lawsuits depends in great part on whether they are decided or settled, and whether they are individual or class action lawsuits. The vast majority of discrimination and harassment suits are settled, and the settlements are often confidential, providing less incentive for plaintiffs to change their ways. Cases that are decided in court, however, often generate negative publicity for the corporation, which can in itself provide an incentive for change.
Class action suits usually have a much greater impact on the corporation than do individual lawsuits. A former general counsel for a West Coast corporation says that although his corporation defended itself against several individual lawsuits, it was only a successful gender discrimination class action suit that inspired real change. The suit was settled with a consent decree that included sensitivity training, educational programs for managers, a termination review board, and internal posting of nings. The class action suit also "made management aware that there was probably some discrimination going on," the attorney adds.
Consent decrees that are part of class action settlements often include some form of sensitivity training. While this training in many cases does have an impact on attitudes, the problem again is that those who most need to change their behavior are often least receptive to mandatory attitude adjustment. "Managers have a lot of work to do, a lot of problems to deal with," says the above-mentioned attorney. "With problems of discrimination, managers often go through the motions. They think 'I'm n ty of any of this. Why do I have to go through all of this?'"
The above-mentioned training director put together a series of trainings in response to several internal sexual harassment complaints. She says that while the trainings did heighten awareness of what sexual harassment is, "When you're talking about the older generation, the top executives, many of them still don't really see what all this stuff is about. There are still a few people who don't think it applies to them, and they won't see it until it hits their bottom line." The only thing that mak ssment a bottom line issue, she adds, is a lawsuit.
K.C. Wagner, a sexual harassment consultant who has designed and run numerous trainings in East and West Coast workplaces, acknowledges that she does sometimes run into resistance. She describes, for example, working with a group of male employees who subjected her to what she calls a "voice out"Äthey simply refused to speak throughout the three hour training.
All the same, Wagner is convinced that trainingÄand the threat of litigation that often inspires itÄ does make a difference. "Trainings create an opportunity for people to have a dialogue in an atmosphere where there are some safety mechanisms. They also create a context in which people may feel more comfortable working within an organization to resolve a problem," she says.
"One of the great forces that inspire companies to do training is the fear of litigation, which brings tremendous cost, negative publicity and low morale to the workplace," Wagner adds. "Companies that have particularly harassment-prone work environments [i.e. traditionally male fields] are also very interested in trying to address the issue before it becomes a problem through litigation." Wagner's clients include companies that have been ordered to do trainings as part of a conciliation agreement sent decree; companies that have a high number of complaints that could potentially lead to litigation; and companies where managers have simply read about other companies, with policies or situations similar to their own, that have been sued successfully.
The documentation process creates a kind of accountability that actually has an impact on people's unconscious attitudes
the government attempted to soften the EEOC guidelines. In 1986, after a much-publicized Supreme Court case established the precedent that sexual harassment that creates a "hostile or abusive work environment" violates the law, demand for training rose sharply. And most recently, Wagner's business picked up in the wake of the Clarence Thomas hearings. Wagner's experience indicates that companies do respond to thethreat of litigation even if they ar not the immediate target. Trisha Brinkman of Brinkman a nd Associates, a San Francisco firm that specializes in sexual harassment, agrees that the threat of litigation sometimes inspires reform, but echoes the point that it is often those most in need of change who resist it most fiercely. The companies that are least inclined to request her services, she says, "are the ones that have a male-dominated management and employ few women. They are less likely to see the need, and to respond only when they are sued." She says some cor porate managers also subscribe to the "myth" that training actually increases lawsuits by bringing questions of discrimination and harassment to the surface. In fact, Brinkman believes, a good training program actually protects a company against litigation. "If companies train they're less likely to get sued because people will handle problems internally," she says.
""some corporate managers also subscribe to the "myth" that training actually increases lawsuits by bringing questions of discrimination and harassment to the surface."
Tracking the effect of litigation can be difficult, since plaintiffs are unlikely to admit their efforts are in vain, and defendants are unlikely to admit those same efforts are effective. As prominent employment attorney Charlotte Fishman puts it, "No matter what you do, corporations say 'We're not changing because of what you did.'" All the same, concludes Fishman, "My belief is that cases that are settled, if sufficiently costly, have an impact. Corporations don't like paying out money."
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