Accusations Against Gov.-Elect Spur Talk of Old Problem

Staff Reporter

Groping made front-page news during the last days of the recall campaign. But it's hardly news.

Despite cultural shifts of the last several decades, the incidence of unwanted sexual contact the kind of groping that more than a dozen women have accused Gov.-elect Arnold Schwarzenegger of engaging in seems hardly to have abated in the workplace.

Olophius Perry, deputy director of the U.S. Equal Employment Opportunity Commission in Los Angeles, said physical touching is the source of about a fifth of all complaints it receives. That has not changed over the years, said Perry, who has been a sexual harassment lawyer since the mid-1980s.

"I'm amazed it hasn't gone down," Perry said.

To be sure, incidents of groping are far less frequent than the occasional lewd comment. Most employers' attorneys estimate that instances of touching or groping make up less than 5 percent of all sexual harassment cases.

"People start off with something fairly innocuous, improper comments here and there, even a flirtatious comment," said Bradley Gage, a sexual harassment lawyer at Goldberg & Gage PLC in Woodland Hills. "Then, it usually escalates to something more graphic and inappropriate."

But there are limits to what management can do to police individual employees' behavior, said Kevin Lilly, a partner at Littler Mendelson PC who represents employers in discrimination claims.

Business trips, or remote locations offer a situation away from one's family and far from management. "I've had a number of cases over the course of my career where it happens around the photocopier, when someone bends over the machine," Lilly said.

Costly contact

The Los Angeles Times reported on Oct. 2 that it had spoken to six women who claimed Schwarzenegger groped them. After the initial report, nine more women have come forward with similar claims, which date from the 1970s and as recently as 2000.

One claimed the actor pinned her to his chest and spanked her, another that he reached under her skirt and grabbed her bare buttocks, and a third said he pulled up her shirt and photographed her breasts.

Schwarzenegger denied some claims and issued a general apology for what he termed bad behavior. None of the women has filed a lawsuit against the governor-elect, and voters largely shrugged off the allegations.

But in the business world, the cost of claims arising from what a groper may consider an innocuous act can be burdensome for employers.

In June, the EEOC settled a case for $10 million on behalf of 90 women employees of Dial Corp.'s Aurora, Ill., plant who alleged that male co-workers groped them, made sexual comments and displayed pornographic materials.

In April 2002, Ralphs Grocery Co. paid $30 million to settle claims made by six women who alleged that the former manager of an Escondido supermarket touched them inappropriately.

That neared the record $34 million settlement paid in 1998 by Mitsubishi Motors Corp. in a high-profile case involving 300 women at the Normal, Ill., plant who claimed they were exposed to touching, groping and sexually offensive graffiti.

Groping can be also be considered sexual battery under California criminal law a felony or misdemeanor, depending on the circumstances, said Eric Moses, spokesman for the L.A. City Attorney's Office, which prosecutes such crimes.

If someone is held in a way that keeps them from resisting unwanted sexual contact, it could bring felony charges punishable by a fine of as much as $10,000 and two to four years in state prison. Prosecutors can choose to file misdemeanor charges punishable by up to a year in jail and a $2,000 fine.

Sexual contact without restraint can bring misdemeanor charges punishable by up to six months in jail and $2,000 in fines. The fine increases to $3,000 if the harasser is the owner of the business where the alleged harassment took place.

Moses could not say how many cases the City Attorney's office prosecutes in which the sexual battery occurred in the workplace.

Most employers, recognizing their potential civil and criminal liability, have instituted policies forbidding such acts in the workplace.

Under state law, if the harasser in the workplace is a manager, the employer is strictly liable, Lilly said. If the harasser is a co-worker of the alleged victim, the employer is liable only if it failed to do anything, he said.

Companies have instituted policies to deter the behavior, but complaints have not subsided.

For the year ended June 30, 2002, most of the 4,189 claims filed with the California Department of Fair Employment & Housing, which takes sexual harassment claims at the state level, involved some type of touching or groping. The number of claims was only 11 percent fewer than in the year ended June 30, 1995.

Employers' lawyers quickly point out that not all claims are true.

Even the EEOC turns away at least half its complaints for lack of merit or missing evidence or a simple failure to corroborate the allegations, Perry said.

And when the accused harasser is higher up on the corporate food chain, the alleged victim will run into more problems during an investigation. That's why, he said, not everyone complains, and the true number groping incidents is unknown.

"Every woman reacts to these kinds of misconduct in potentially different ways," Perry said. "How they react depends on culture, on socioeconomic status, position or some expectation of retaliation. There's a lot that goes through a woman's mind that she must address before she formally files a complaint."

Holding Penalty: State law provides for both criminal and civil sanctions.

- Felony: Anyone who touches an "intimate part" of another against their will while that person is unlawfully restrained, for the purpose of sexual arousal, can be charged with sexual battery. Maximum penalty: imprisonment for four years and $10,000 in fines.

- Misdemeanor: Anyone who touches an "intimate part" of another against their will for the purpose of sexual arousal can be charged with misdemeanor sexual battery. Maximum penalty: six months in jail and $2,000 in fines. If there is an employer/employee relationship, the fine may increase to $3,000.

- Civil: Employers must take all reasonable steps necessary to prevent discrimination and harassment from occurring.

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