The legal fight against hostile work environments is far from over
Justice Scalia led the Court's majority in rejecting the notion that society's prejudices against the advancement of women would affect corporate culture ... In the last ten years, negative court rulings have made hostile-environment class actions nearly extinct. - Jean Boler
by Jean Boler
On December 30, 1998, Jenson v. Eveleth Mines, the nation's first sexual harassment class action, settled on the eve of a fourth trial after ten years of bruising litigation. As one of the lead lawyers for the women miners, I celebrated that day with the women who had braved a hostile workplace, community and, at times, court system, to make new law. The ensuing years brought first a book ("Class Action"), and then a movie ("North Country") about the ground-breaking saga. But what is the enduring legacy of the court case that cost those women so dearly?
Legal scholars and women's groups made early predictions that hostile work environment class actions would become potent weapons for ending sexual harassment in American workplaces. For a while it seemed the predictions might come true.
In the late 1990s and early 2000s, law firms and the Equal Employment Opportunity Commission mounted sexual harassment class actions with headline-making results. In 1998, Salmon Smith Barney, the brokerage firm, paid a class of 2,000 women $100 million dollars for enduring crude remarks, obscene gestures, pay inequity and the infamous frat-boy behavior in the "boom-boom room." That same year, Mitsubishi paid 350 women $34 million. And in 2003, the Dial Company shelled out $10 million for 100 women facing similar harassing conduct.
But like many social advances, resistance built up and then the tide started to turn. When a large class-action sex discrimination lawsuit against Wal-Mart reached the United States Supreme Court in 2011, Justice Scalia led the Court's majority in rejecting the notion that society's prejudices against the advancement of women would affect corporate culture, and denied the women class status. In the last ten years, negative court rulings have made hostile-environment class actions nearly extinct.
It's not as if women banding together to fight sexism in the workplace isn't necessary any more. According to the National Women's Law Center, one out of every four women in the United States experiences sexual harassment, with women in low-wage and traditionally male jobs experiencing the most extreme forms. But despite this unconscionably high rate of harassment, 70 percent of women who experience it never report it. Due partly to harassment, women continue to avoid well-paying, male-dominated fields where women have hovered below 5 percent for decades.
The women I represented against the mines braved retaliation and community censure because they wanted to change workplaces for their daughters and granddaughters. But economic equality for women will never happen unless women can band together to fight harassment. Only with support from each other, and receptive courts, will lasting change be possible.
Jean Boler is a senior attorney with Schaefer Hallen. While at the law firm Sprenger and Lang, she helped represent the Minnesota women who sued the Eveleth Taconite company and established the first sexual harassment class action in the country.
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