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Will Proposed Anti-Bullying Laws Bring a Wave of Lawsuits?

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That percentage is higher than the 16.3% of cases filed by men in all industries, but it still means a majority of complaints are filed by the tiny minority of female employees. Similarly, only one in five cases in ENR's sample were men filing sexual harassment lawsuits against other men.

Sexual harassment is commonly thought of as a male-on-female offense, and women in the building trades say the tradition is alive and well. "I had a journeyman repeatedly hit on me, and then one day he grabbed me and attempted to dry-hump me in front of the crew," says electrician Kelly Kienleitner.

Electrical worker Maili Jonkman says a Bonneville Power Administration contract inspector in Washington state caught her on the way to the restroom and, after making conversation, reached up and caressed her face. Later, she arranged a meeting with her boss, his boss and the inspector and told him she wanted to work together so she wouldn't sue. She also said they weren't at a bar having drinks and his action was reprehensible partly because he was married and wearing a wedding ring. Above all, she declared, the touch was inappropriate and next time she would "break his f---ing hand." The inspector's boss, being aghast at the situation, thanked them and "we all went back to work and [the contract inspector] kept his distance" from then on, said Jonkman.

In many of the stories told by tradeswomen, they admit they did not file harassment complaints or lawsuits and only occasionally notified supervisors. They say filing complaints would make it difficult to get jobs in the future and that the act of complaining is embarrassing in an industry known for valuing machismo.

These same factors may be the reason so few men file complaints or lawsuits. "I would venture to guess that it would be so much harder for men to admit they're being harassed than women, but admitting to bullying is tough for any adult," says Catherine Mattice, president of anti-bullying consultants Civility Partners LLC, San Diego. "Our jobs are a huge part of our self-concept and our identity," she adds.

"That's one of the reasons that make it so difficult, because this person is threatening our self-concept." Susan Strauss, a harassment and bullying consultant, says, "I think it's embarrassment, and it is also fear. Fear that they [men] will be labeled gay and fear because we are very much a blame-the-victim society—and sexual harassment is very much an example of that."

Strauss also notes the role of self-blame in harassment. "Men also have that fear that another man would not have sexually harassed him if he had not given the harasser the impression that he had some interest in him," she says.

Jill Craft remembers that factor in John Cherry's lawsuit against Shaw Coastal. As Cherry's attorney, she was surprised to find that her client was most confused about what he did to attract his supervisor's attention. Cherry said so himself in his testimony at trial, saying, "It's truly embarrassing. Sometimes I felt like I could have—I should have just stepped up and done what most men would have done, I guess, and solved it myself."

Supervisors Must Act Quickly

For an employee to believe they won't be blamed for their alleged harassment, managers have to take complaints seriously and act at the first sign of trouble. When Cherry came to his supervisors to complain, they forwarded his complaint to human resources and conducted an investigation but did so only after questioning whether the behavior was complaint-worthy, according to Cherry's testimony.

For its part, Shaw Group says it sees no need to change its practices. Reasoner had argued that Cherry and a key witness were out to get him, especially when Reasoner refused to support their requests for some expense reimbursement. The harassment, the company said in a statement, was confined to a 14-day period, ended as soon as the complaint was made and was handled properly given the conflicting accounts by the parties involved.

Nothing shapes the outcome of a sexual-harassment case as much as the supervisor's response. In a 2009 case involving Railroad Constructors, Paulsboro, N.J., laborer Howard Harris alleges that when he approached managers to complain about his supervisor's comments, they responded by saying, "Maybe this isn't the kind of work for you," and suggested that perhaps the owner's family should "babysit" him to keep him safe. According to the complaint, one supervisor even said, "What happens in the field, stays in the field." Harris and the company settled out of court.

The confusion continues at trial, as judges issue conflicting opinions on how to interpret Title VII in cases of same-sex sexual harassment. Attorney Craft recalls that, since the U.S. Supreme Court decided that men can discriminate against other men in Oncale v. Sundowner Offshore Services (1998), lawyers and judges have been flummoxed about how the precedent affects their own cases. "Like clockwork, every six months, the Supreme Court issues another decision on Title VII that's different," she says. Any type of sexual harassment aside from men harassing women, she says, "used to be completely non-actionable. The notion that a man could be sexually harassed by a woman was an anathema."

For example, jurors in Cherry's case had to determine whether the evidence indicated that the harasser was sexually attracted to Cherry. But the experts generally agree that sexual harassment, whether by the same sex or the opposite sex, rarely has anything to do with sexual desire. "Across the board, in reality, any sexual harassment case has very little to do with sex. It's about power. [Attraction] would not have come up if it were the case of a woman against a man," Craft says.

This issue has been cited in judges' decisions in many sexual-harassment cases. This year, a Louisiana appellate court reversed the decision in EEOC v. Boh Bros. in which a male ironworker, Kerry Woods, originally won his lawsuit against Boh over sexual harassment by a male supervisor in Louisiana. The judges reasoned in their ruling that, since there was no evidence the harasser was attracted to the victim and the victim did not deviate from gender norms, there was no support for a Title VII case against Boh (ENR 8/13 p. 18).

Data from the sampling of sexual-harassment cases filed against construction companies since 2002 support the notion that these cases, particularly ones based on male-on-male sexual- harassment charges, have difficulty getting to trial. About a third of the cases were granted summary judgement—a judge's decision to rule in favor of the defendant before the jury is allowed to return a verdict. Almost one out of 10 cases were dismissed before a jury verdict. Fewer than one out of three were denied summary judgment, meaning they went to a jury trial.

Plaintiffs clearly don't see the EEOC as their salvation: Only four cases out of the 70 in the sample were brought with the agency's assistance. During testimony for Cherry v. Shaw Coastal, lawyers discussed the fact that Cherry filed a complaint with the EEOC, but the commission admitted its own inability to conduct a full investigation of the charges. Cherry, like many other sexually harassed individuals in construction, apparently decided to go forward without the commission's help.

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