Monday, November 13, 2000

Hooters court ruling second-guessed




By Susan Vela
The Cincinnati Enquirer

        A $275,000 jury award to a former Hooters waitress sent a message that sexual harassment will not be tolerated — no matter the job or the uniform.

        That was what some employment law specialists said after a federal jury in July found in favor of Sarah Steinhoff, 24, of Clifton.

        Now that U.S. District Judge William O. Bertelsman of Covington has reduced that award to $25,000, the message, the experts say, has been reversed.

        While more people than ever are pressing sexual harassment cases, it has become common for federal judges to take away punitive damages in those cases, University of Kentucky law professor Carolyn Bratt said.

        “We still have the whole issue that the bench is predominantly male and in the position to put damages aside,” she said. “There has to be egregious conduct. For males in general, their ability to understand and experience sexual harassment in the ways that women do is pretty limited. You have some very strong cultural biases running around in this area of the law.”

        After a three-day federal trial in July, a jury said Ms. Steinhoff was entitled to $275,000 because of treatment she endured at the Hooters in Newport while working there from August 1996 through 1997. The bulk of the award — $250,000 — was punitive damages.

        It was a historic award for a single plaintiff suing a Hooters franchise that, like others across the nation, is known for scantily clad waitresses dressed in orange shorts and tight T-shirts.

        Most Hooters restaurants are owned by franchises. Ms.

        Steinhoff's lawsuit is against the Newport store, not the Atlanta corporation.

        Ms. Steinhoff testified she suffered unwanted sexual advances, demeaning behavior and recrimination from two of the restaurant's managers. She said they also tried to force her to go home with them, and one threatened to tie her up.

        Some of her co-workers testified waitresses who complained about their work were forced to compete in the restaurant's weekly bikini contests as punishment.

        The managers did not take the stand.

        In his decision, Judge Bertelsman said last month that Ms. Steinhoff shouldn't receive any punitive damages, because trial evidence failed to prove Hooters managers harassed her maliciously or with reckless indifference.

        The judge, who declined to comment for this story, said the restaurant made a good faith effort to stop sexual harassment and couldn't be held liable for its manager's actions. The restaurant had posted its sexual harassment policy near the waitresses' schedules and had maintained a toll-free number to report harassment.

        Ms. Steinhoff did not call the toll-free number.

        “I think societies are recognizing — and juries are recognizing — that this is a problem and this is something people should not have to tolerate in the workplace,” said Ms. Steinhoff's attorney, Randolph H. Freking.

        But, “we were very surprised that (Judge Bertelsman) did what he did because (the case was) such a blatant example of sexual harassment.

        “It sends the wrong message to women about what their federal courts will do.”

        Ms. Steinhoff has appealed Judge Bertelsman's decision to the 6th U.S. Circuit Court of Appeals in Cincinnati.

        Lawyers said the initial $275,000 award was a sign more people have gained definite ideas about how men and women should interact in the workplace. They note Anita Hill's 1991 allegations against Supreme Court nominee Clarence Thomas heralded that change.

        Now sexual mistreatment at work is “clearly being litigated,” UK law professor Ms. Bratt said.

        “Some of it is so incredibly obvious, ... groping a woman in front of witnesses. Sometimes it's absolutely incredibly easy to prove.

        “On the other hand, it's difficult to prove a he-said-she-said swearing battle.”

        That doesn't hamper the increases in such complaints.

        On average, 15,500 sexual harassment complaints were filed each year from 1995 through 1999. In those years, there were increases in the number of cases settled and in the number of cases decided in favor of those alleging sexual harassment.

        More men are alleging sexual harassment, too. In 1999, males filed 12.1 percent of the com plaints, compared with about 9 percent in 1995.

        “There's a growing social consensus that this type of conduct is wrong and these type of people who challenge (it) are not strange or humorless but have legitimate concerns that ought to be addressed,” said Joseph M. Sellers, a Washington, D.C., lawyer specializing in employment discrimination law.

        The firm he works for helped win a $176.1 million settlement against Texaco Inc. on behalf of black employees alleging race discrimination.

        Yet “juries are more generous than judges” in sexual harassment cases, said Ann Kiernan of Fair Measures Corp., a California group that provides corporate training to prevent sexual harassment in the workplace.

        Ron Gaswirth, a Dallas lawyer, said the jury's $250,000 punitive damage award to Ms. Steinhoff could have had a preventive effect.

        “It should be a wake-up call to people who are thinking they want to engage in that sort of conduct,” he said.

        “I don't think it's a 2000 kind of thinking. (Hooters) is still a restaurant. It's not a strip bar.”
       head WHAT IS IT?

        What is sexual harassment?

        The 1964 Civil Rights Act was the basis for federal sexual harassment laws involving the workplace. The act established sexual harassment as a form of employment discrimination.

        Based on complaints and court findings, examples include:

        • Physical conduct of a sexual nature.

        • Embarrassing cartoons on a bulletin board.

        • Requests for sexual favors.

        • Casual touching.

        • Off-color jokes.

        Under U.S. Equal Employment Opportunity Commission rules, sexual harassment occurs when employees feel they will lose their jobs, a promotion or good work assignments if they do not submit to sexual proposals, or when such conduct interferes with the employee's job or creates a hostile working environment.

       



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