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ON THE ISSUES WINTER 1995
including age, race, and gender."
Leaphart describes the
many obstacles large corporations
now throw in a
plaintiff's path: having new
hires waive the right to sue
in employment contracts;
watering down affirmative
action plans in company
handbooks by describing
them as "a guide and suggestive
but not binding"; retaining
all the lawyers and
expert witnesses specializing
in employment practice in
the location where a trial
will take place; petitioning the Securities Exchange Commission
to remove non-economic issues such as discrimination
from a company's annual filing; "swarming," and other
delaying tactics such as excessive discovery time which add
years to a case; and "scorched earth" tactics involving litigation
to the plaintiff's last breath.
Abby Liebman, an attorney from the California Women's
Law Center, sounds the alarm for what corporate pushes for
tort reform may mean. "You need an award significant
enough that very large companies will pay attention. Sometimes
smaller damage awards are looked on as fines, and the
companies will just keep discriminating."
Without timely resolution of lawsuits, workplace discrimination
claims its victims slowly and deliberately, particularly
when the employer will stop at nothing to silence an
employee turned plaintiff/traitor. The result can be years of
intense frustration for the plaintiff. In 1988 Charles Koster
watched his daughter's mental and physical health deteriorate
during a protracted sexual harassment case against the
bank that employed her. When presiding Judge Richard
Daronco set aside the jury's $2.5 million verdict for Koster's
daughter, the father shot and killed Daronco, then himself.
How many women will be willing to risk the years of
frustration involved in a lawsuit when they realize that
judges are likely to turn large jury awards into pennies
Sixty-year-old Catherine Malarkey, an executive secretary,
was derailed from the fast track after pointing out in a
memo to Texaco higher-ups that executives were discriminating
against veteran women workers because of their
desire to have young secretaries. She fought—and won—a
14_year battle with the firm, but the result was only a
$130,000 award plus legal fees. Texaco has been enjoined
from retaliating against her, but Malarkey finds herself
threatened again by a poor performance review and is forced
to ponder the hundreds of thousands of dollars needed to
drag Texaco to court again.
Watching a recent round of 2,500 layoffs at Texaco,
Malarkey sees many of the outcasts close to the edge menn
this
corporation-financed
shell game,
the jury giveth
and the
judge taketh away.
tally, physically, and financially.
She says: "The fear and
stress levels of employees
today is sickening. My way
to fight discrimination was a
lawsuit but too many others
are afraid they will lose the
pittance that the company
gives them at termination.
There are many women
hurting and suffering, and if
there is no way for them to
win a large dollar award, corporations
will get away with
everything they can."
Discrimination gets easier
in hard times, and federally-protected Equal Employment
Opportunity rights may get smashed on the rocky shoals of
corporate downsizing, recession, and burnout. Who will be
brave and resourceful enough to go to the toothless Equal
Employment Opportunity Commission or to hire an attorney
when the unemployed look at them with envy But
long range, companies that continue to permit discrimination
and harassment may be shooting themselves in the
foot. Workforce 2000, a study by the Hudson Institute for
the U.S. Department of Labor, estimates that 85 percent of
the 26 million net new American workers in this decade
will be women, members of minority groups, and/or
immigrants. Companies that refuse to share power and
money with those considered "inferior" may soon find
themselves with a mediocre work force and unable to compete
with forward-looking companies that can choose and
promote from the more vast and diversified pool of talented
people.
Necessity can bring about a quantum change of mindset.
Maybe Gary Brouse, director of equality programs at the
Interfaith Center for Corporate Responsibility, a Manhattan-based
consulting and investment organization, is the herald
of transformation. In a "Mr. Smith Goes to Exxon" scenario,
Brouse suggests that discrimination will be abolished
when "the CEO has a change of heart and realizes that discrimination
is unconscionable. He will then make it clear
that discrimination will not be tolerated." Brouse says that
executives at large companies such as Con Edison, Hoechst,
and A&P have already made such about-faces for enlightened
self-interest.
Fighting efforts to take the teeth out of jury awards allows
victims of harassment and discrimination their constitutionally-guaranteed
day in court. And high monetary awards
force corporations to realize that gender bias can be unprofitable,
as well as unconscionable. •
Marlene C.Piturw is a free-lance business journalist. She Hues in
Hastings-on-Hitdson, New York.