Tuesday, November 08, 2005

Dignity vs. Harassment

When a jury awards $3 million dollars in compensatory damages (only) to a sexual harassment victim against Sav-On (American Drug Stores Inc., 2005 WL 2002376, Aug. 2, 2005), what is the jury trying to communicate by its verdict?

The case involved some alleged stalking of a store manager by her manager, some groping, some lewd comments, and threats against her if she participated in other investigations against him. The events occurred over about 3 years, (1994-1997) and occurred almost daily.

The harassed woman complained "informally" to management, consistently with company policy. Management told her to "work things out" on her own, and if she made a "formal" complaint, she "could kiss her career goodbye". After some bad performance evaluations delivered after unusual close scrutiny of her work, she went on medical leave in 2000.

The $3 million dollar award was for lost wages and emotional injury only. There was no award of "punitive damages". By any measure, a "compensatory" award of $3 million is extraordinary. Why did it happen?

Trials are events that operate at two levels: technical and dramatic. Compare a film: the technical elements are operating in the background. They hardly matter to the viewer. They support the drama. The viewer is interested in the story. The jury is watching a drama unfold in a courtroom, even while the technical matters of objections, evidence, and jury instructions operate in the background. Juries don't care very much about the background. They care about the moral issues of who acted rightly and wrongly. Their award of damages, small or great, is their vote on the clarity and force of the moral arguments presented.

We can now answer the question: What was the Jury saying by its $3 million "compensatory" verdict? I believe the verdict told Sav-On that employees can rightfully expect their employer to provide a workplace reasonably free from harassment. It told Sav-On that it did not only fail in that basic duty, it went further. In my opinion, the Sav-On verdict told the company that the jury believed Sav-On management indirectly participated in the harassment. By discouraging reporting of the harassment, and by being lax in following its own policy, Sav-On communicated that harassment was acceptable. As a result, a woman suffered for years because of fear of losing her job and her career. The Jury told Sav-On implicitly that it would pay for this suffering, and, in my opinion, even without an award of "punitive damages", it awarded an amount that told Sav-On to change its practices so that other women would not suffer like this one.

"If the pink slip doesn't fit,
get redressed!"
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