Tap on Wrist for ‘Egregious’ Sexual Harassment

Ct Slashes Jury’s Punitive Award

A decision by the U.S. Court of Appeals for the Ninth Circuit  this week raises questions about  the way courts calculate damage awards in discrimination cases.

A three-judge panel of the San Francisco-based court reduced what started out as a $868,750 jury award for punitive damages in a sexual harassment case to $125,000.

The defendant is the American Smelting and Refining Company (ASARCO),  a Sahuarita, Arizona company owned by Grupo Mexico Corp. that is the third largest copper producer in the US, with estimated earnings in excess of $800 million.

The appeals court agreed that ASARCO employee Angela Aguilar was the victim of “particularly egregious” sexual harassment while working for ASARCO from December 19, 2005 to November 8, 2006.  However, the court said it was required to lower the award because the ratio of punitive damages was excessive compared to the $1 the jury awarded Aguilar for compensatory damages .

Punitive damages are supposed to deter the defendant from engaging in future similar conduct. In other words, the punitive damages should be significant enough to get an employer’s attention so that it will change the illegal practices that led to the damages in the first place.   Will a $125,000 punitive damage award compel a billion dollar corporation to eliminate serious  sexual harassment at the Arizona plant? Not likely.

Statutory cap

The jury’s original punitive damage award was actually hit with a double whammy.

The lower court immediately reduced the $868,750 punitive damage assessment to $300,000 pursuant to a statutory cap placed on such awards by the U.S. Congress.  However, the  lower court refused to further reduce the punitive damage award because of the egregious nature of the harassment suffered by Aguilar.  ASARCO had argued the award should be reduced to $2,500.

The appeals court agreed that ASARCO’s conduct supported  a “very large punitive award” but said the U.S. Supreme Court ruled in 1996 that punitive damages must bear a “reasonable relationship”  to compensatory damages under the due process clause of the U.S. Constitution.  If left to stand, the appeals court said, the ratio of $300,000 in punitive damages to $1 in compensatory damages would be among the highest (if not the highest) ratio since 1996.

“The Supreme Court has repeatedly emphasized the importance of the ratio inquiry and we cannot set it aside … [W]e conclude that the highest punitive award supportable under due process is $125,000, in accord with the highest ratio we could locate among discrimination cases.”

One member of the three-judge appellate panel, Judge Andrew D. Hurwitz, issued a partial concurrence/dissent, arguing the court should affirm the earlier $300,000 judgment because it fell within the statutory cap on damages in Title VII cases.

The Harassment

Here’s a very abbreviated account of what Aguilar experienced while working  at ASARCO:

  • Her supervisor, a very large man, asked her out every day and refused to train her or help her when she rejected him. When she asked for help, he would press up against her. She was afraid he might rape her. ASARCO’s HR Department and said there was nothing it could do.  She transferred to another unit.
  • There was no functioning women’s restroom in the building so the company rented a “porta-potty” for Aguilar’s use.  It was vandalized repeatedly with pornographic graffiti directed at her. She reported it to HR and the mill supervisor in 2006 but photos showed that visible pornographic graffiti remained on the toilet in 2007.
  • Another supervisor told Aguilar “your ass is mine” and often gave her conflicting orders, snapping his fingers at her, telling her to watch herself, yelling at her and threatening her with termination.  Needless to say, management did nothing when Aguilar complained. ASARCO maintained in the litigation that the supervisor’s behavior was not motivated by sex but instead by his general boorishness toward everyone.

Aguilar finally quit.

The case, State of Arizona v. ASARCO, was initially filed by Arizona on behalf of Aguilar and the state. Aguilar subsequently filed her own lawsuit.

Sexual Harassment and Due Process

Harasser may not be due ‘due process’

Is an elected official who  allegedly “sexually harassed” more than a dozen women entitled to job protection?

That seems to be the ludicrous debate in San Diego right now. A group of supporters  are demanding due process for Mayor Bob Filner, who admits engaging in “intimidating contact” toward women over a period of years.

Filner was scheduled to return to work at City Hall on Monday after undergoing two weeks of “behavioral therapy.”   He didn’t show and is said to be  negotiating the terms of his departure with city leaders.

Normally, one thinks of due process in a criminal context.   For example, criminal defendants are entitled to a hearing on bail and to have  an attorney appointed to represent them under certain circumstances.

Due process is not an automatic right in the employment context, unless the worker is protected by a  contract or a union agreement.  The American concept of “at will” employment holds that a worker can be fired for any reason as long as it is not an illegal reason (e.g., sex or race discrimination).

Filner, 70, has not been charged with a crime –  though maybe he should have been.

If the allegations against him are true, his conduct could  arguably rise to the level of  an  assault and battery or an aggravated assault with respect to at least three of his victims.

According to The Los Angeles Times,  Filner allegedly forcibly kissed two women and groped a female staffer.

America treats sexual harassment as a civil rights violation, rather than a crime.  The victim’s  redress  normally Is limited to filing a lawsuit seeking monetary damages against the harasser.  But many of the behaviors that constitute sexual harassment – especially the part that involves physical contact –  also fall within the realm of criminal statutes.

If  you don’t think that sexual harassment should be a crime – imagine having a person who is  more powerful than you are  forcibly jamming his tongue down your throat or pinning  you against a wall to lick your face.

Attorney Marco Gonzalez  said women who worked for Filner coined the phrases “the Filner headlock” and “the Filner dance” to describe how he isolates women and then makes unwanted advances.

A  recall effort is underway to oust Filner from the Mayor’s office though it is not a sure thing. Recall advocates have 39 days to collect 101,597 signatures from registered city voters.

I suspect the framers of the U.S. Constitution did not have someone like Mayor Bob in mind when they adopted the concept of  due process.

The Due Process Clause in the Fifth Amendment applies only to the federal government so  the pro-Filner folks must be thinking about the  Due Process Clause of the Fourteenth Amendment, which was adopted after the Civil War to protect the rights freed slaves.

Ratified in 1868, the Fourteenth Amendment declares,”[N]or shall any State deprive any person of life, liberty, or property, without due process of law” (§ 1).

Of course, Filner’s victims also have a due process claim – no  citizen or employee should be subject to “intimidating contact”  by the  Mayor of San Diego.

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