Sexual Harassment in the Workplace
Price of Paradise · Hawaii Public Radio · aired 1996-07-28
Guests: Ellen Godbey Carson (President, Hawaii State Bar Association; attorney, Alston Hunt Floyd & Ing); Cynthia Winegar (attorney, Watanabe Ing & Kawashima); Lawrence Foster (Dean, University of Hawaii School of Law); Sam Teague (President, Page Hawaii)
Duration: 1:04:54

[00:00:00] Randall Roth: Aloha. This is Randy Roth, host of the Price of Paradise radio show. Everyone who works to bring this show to you is a volunteer. We do what we do because we enjoy doing it, and also because we believe in the importance of lively and informed public dialogue. Our airtime is paid for by the Hawaii Community Foundation, an organization that supports grassroots efforts to improve the quality of life in Hawaii, and that administers charitable funds with efficiency and compassion. Our topic today is sexual harassment, and with me to discuss it are Ellen Godbey Carson, Cindy Weiniger, and Larry Foster. Ellen Godbey Carson is an honors graduate of Harvard Law School, and is president of the Hawaii State Bar Association.

[00:01:07] Randall Roth: Ellen was a lead counsel in the class action lawsuit for Japanese American redress, which twice went to the United States Supreme Court seeking redress for racial discrimination and related violations of rights, which ultimately resulted in presidential apologies and congressional redress payments to all survivors. In Hawaii, she has served as president of Hawaii Women's Lawyers, Sex Abuse Treatment Center, and Holle Keepa Youth Services. Cynthia Weiniger is a partner with Watanabe, Ing, and Kawashima, and a member of its labor, employment, and employee benefits group. She represents management in labor and employment manner matters. She's also an arbitrator. Before serving, before entering private practice in 1982, she served as a law clerk to a justice of the Hawaii Supreme Court and as a Deputy Attorney General.

[00:01:57] Randall Roth: A former Young Lawyers Division President of the Hawaii State Bar Association, she is active in community affairs. She served or is serving on the board of Child and Family Services, Aloha United Way, and Paloma Settlement. Lawrence Foster is the newly appointed dean of the William S. Richardson School of Law. Before his appointment as dean, he was an associate or the associate dean at the law school. He was there for 8 years, or in that capacity for 8 years, and before that, he was an attorney in a Honolulu law firm specializing in civil and commercial litigation. He's a 1963 graduate of Kailua High School. He received a BA and PhD from the University of Washington in Chinese studies and then his law degree from the University of Hawaii.

[00:02:39] Randall Roth: His background in sexual harassment matters includes serving on the investigation panels at the University, chairing a Manoa campus committee in 1994 to review the University's procedures for dealing with allegations of sexual harassment, and currently serves as a sexual harassment information advisor at the University. Well, Ellen, Cindy, and Larry, good morning. Good morning. I suppose the burning question that everyone out there can can hardly wait to hear the answer to is how do we pronounce this? Is it harassment or harassment? Cindy Weiniger?

[00:03:13] Cynthia Winegar: Harassment.

[00:03:14] Randall Roth: Harassment. Okay, Ellen?

[00:03:15] Ellen Godbey Carson: I grew up in Tennessee. It was harassment there, but it seems to be harassment through a lot of the nation.

[00:03:20] Randall Roth: Well, it's a one-to-one tie. Larry, why don't you break that tie?

[00:03:23] Lawrence Foster: Well, from the University perspective, I'll weigh in and say linguistically, of course, harassment.

[00:03:28] Randall Roth: Oh, okay. Okay. Well, my dictionary says harassment, so I'll get confused and say it different ways during the show. At any rate, it's a very serious subject, and anyone who's had an opportunity to take a look at this morning's advertiser, page B3 of the focus section, realizes that there's an article there written by each of our three guests in the studio and then a fourth one, and you'll hear more about the author of that piece in just a moment. But what I want to do in setting up this conversation is to ask each of my guests in the studio to very briefly tell us what the main theme of of his or her article is, and in any other points made in the article that that need to be gotten out at the table before we really begin this conversation.

[00:04:08] Randall Roth: Ellen, why don't you begin? What's the main theme of your article in this morning's paper?

[00:04:12] Ellen Godbey Carson: The main problem with sexual harassment today is simply that some employers still don't get it. And what I mean is they don't think that sexual harassment is a problem, they don't do anything to stop it. And then when a complaint occurs, they really don't know what to do and so often their response is defensive in the sense of retaliation, ridicule, and things that just aggravate the injury and aggravate their own legal exposure on that. Fortunately, that's not true of all employers, many employers have taken affirmative steps and do strongly support the civil rights laws. Some of the things they can do most that would help prevent these claims are to send strong messages to their employees that harassment will not be tolerated, to take each complaint seriously and conduct an immediate investigation to find out whether it has merit instead of assuming that they know.

[00:05:02] Ellen Godbey Carson: And then finally, take prompt corrective action to remedy any problem if they find after the investigation that there has been a problem. Harassment claims today in Hawaii and nationwide are costly. They are difficult both for the employers and employees. A lot of people don't, it's hard for them to put themselves in the other person's footsteps there, but but it's a problem for everybody and it can be very burdensome. One of the main things that I try to encourage people to do is be proactive in the beginning and look for something like mediation or early neutral evaluation that can help everybody stop these complaints immediately and get a get a solution to them quickly if there is a problem.

[00:05:38] Randall Roth: Okay, so among other points, you're saying they better take it seriously.

[00:05:42] Ellen Godbey Carson: Yes.

[00:05:43] Randall Roth: Okay. Cindy Weiniger.

[00:05:44] Cynthia Winegar: Randy, I think the employers do take it very seriously. I think despite the fact that we see complaints up, I mean, a general trend in terms of complaints being up, they're up about two and a half to three times what they were in 1991 at the federal level. Despite that reality, we do not believe the actual circumstances or the actual cases are there. In other words, does the number of filings equal that there's more of a problem with sexual harassment out there? I don't believe so. I think employers have taken this issue very seriously. I think what we have is a very aware workforce. I think ironically, some of the awareness comes from the employer's efforts in educating these people.

[00:06:22] Randall Roth: And you're suggesting maybe the awareness is a major factor in the number of claims.

[00:06:26] Cynthia Winegar: I believe so. Because again, the the statistics do not tell you what the um what the resolution of those claims were and just the numbers in fact that were filed and the circumstances. And what we're seeing and what I comment on in the article is in fact, there's quite a bit of confusion, even at the court level about what the second definition of sexual harassment, the hostile or offensive working environment means. And even in our circuit, although I don't quote that in the article, um there's been a a judge that's commented that this is basically one of the most difficult problems for society to resolve and the courts were no different.

[00:07:05] Randall Roth: So pity the poor employer who's trying to avoid a sexual harassment claim if the courts are saying there's no bright line, this is very tough stuff.

[00:07:13] Cynthia Winegar: Right. And one one more thing there Randy, too. Pity the poor employee because basically the employee may have a misunderstanding. Many times I have employees come to me and say that they think that their supervisor or whatever is just very obnoxious or they don't like him, they don't get along well with the supervisor or with her if it happens to be a male. That does not equal sexual harassment.

[00:07:34] Randall Roth: Okay. Larry Foster, what about the main theme of your piece in this morning's newspaper?

[00:07:38] Lawrence Foster: Sure. Um, I think the core principle underlying sexual harassment um uh that we're looking at right now, is that workers work better and students learn better in an environment that's free of from all kinds of discrimination, be it sexual harassment or uh race-based or gender-based or whatever. Um, so we uh I think as as educational administrators and as as employers, we we should recognize that it just works better without these kinds of discrimination in the workplace and in our educational institutions. Um Cindy's uh mentioned the sexual harassment [unintelligible — audio glitch] relatively new on the legal front. And as a result of that, there's a lot of areas that are just unresolved. Uh what is a hostile environment uh uh at the university level some uh conflict uh uh between um uh some sexual harassment policies that would for example say you should not post uh sexually explicit materials uh on bulletin boards and and professors feeling they have a right of uh some First Amendment right or academic freedom right to say and do what they want to do.

[00:08:42] Lawrence Foster: Um and I think I also mentioned in the in the article this morning, um I hear around the community are concerned by a lot of people and and it goes back to this is there well the lack of a bright line. And that's a concern of what can we and what can we not say within the in within the workplace, within the university. Uh some people feel that relationships are being chilled because of that. There's just conversations you used to have that you can no longer have and um uh some people are very emotive. They like to be very physical, and can they still be very physical [unintelligible — audio glitch] these environments uh trying to figure out what a hostile environment is.

[00:09:15] Randall Roth: Well, especially I guess Hawaii's culture, the Hawaiian culture, there's there's a certain amount of embracing and and kissing in a very friendly way.

[00:09:24] Lawrence Foster: A number of a number of cultures throughout the world have that, yes.

[00:09:27] Randall Roth: And and that potentially can be at least alleged to be sexual harassment.

[00:09:34] Lawrence Foster: Uh uh yes, could be.

[00:09:35] Randall Roth: You you mentioned that this is a relatively new area. [unintelligible — audio glitch] read an article recently and I'm curious if if anyone would question any of this, but in this article it said the first successful sexual harassment case was just 21 years ago, and it involved a woman who received $18,000 in damages in a situation where she had lost her job because she refused to have sex with her employer. Last year, uh Walmart was hit with a $50 million damage award in a situation where a woman in the receiving um division had complained that her supervisor was making fun of her body. Uh I think the suggestion is we've got a lot more claims. The dollar amounts seem to be dramatically higher and the circumstances that can result in uh a judgment against an employer have have been for lack of a better term, I'll say watered down, you know, something that maybe isn't quite as serious as as saying somebody's going to lose their job if they don't have sex with the employer.

[00:10:32] Randall Roth: I'm curious to any of you question what I'm just describing from that article, Ellen?

[00:10:39] Ellen Godbey Carson: I think the $50 million Walmart case is definitely an extreme and an aberration. Most cases statistical studies are showing are being resolved at much less than $100,000 in terms of any damages that are awarded to a plaintiff and even to get to that stage of a jury, they must undergo several years of litigation typically and most do not make it that far, so that when when cases get reported in the press, they are obviously the extreme.

[00:11:02] Randall Roth: Okay. Um I ran into an article in the Hawaii State Bar Journal recently by uh Anna Alento Sneed, who's an attorney with the Carl Smith firm here in town. And I want to take uh just a couple of sentences [unintelligible — audio glitch] I hope I'm not doing damage to um uh to her her thinking by taking it out of contents but context, but uh I think it sets up our our next guest comments. Her her statement is, many employers, particularly small employers, do not have the financial resources to vigorously defend harassment cases, even ones that are obviously frivolous. As a result, most employers grudgingly agree to settlement. Unfortunate unfortunately, such settlements do nothing to prevent future claims of sexual harassment.

[00:11:47] Randall Roth: Well, if you've had an opportunity to look at this morning's newspaper, you know that together with the three articles by my guests in the studio, there is uh a statement of sorts by Sam Tieg, who is the president of Page Hawaii. Sam is um uh an employer here in Hawaii. Sam, are you there? Sam, are you there?

[00:12:06] Speaker 1: Here.

[00:12:07] Randall Roth: Okay, we found you. Uh have you had an opportunity to hear our guests?

[00:12:11] Speaker 1: Yes, I have.

[00:12:12] Randall Roth: Uh any thoughts about either the quote that I just read from uh uh Anna Alento Sneed's article or anything from the newspaper this morning or anything you've been listening to that you'd like to uh comment on?

[00:12:25] Speaker 1: Well, I certainly agree with uh Ms. Sneed's uh article. Uh I I found myself in a position to be able to defend at least to date and it's cost me over $100,000 to do so. I might point out I'm also sort of the odd man out in this discussion, because included in the Hawaii statutes under sexual harassment or harassment depending on how you want to pronounce it, uh involves uh discrimination uh on account of pregnancy. And that's a specific issue that uh that I was confronted with and I'm defending against. And of course, I also have to agree with uh Ms. Weiniger's comment uh regarding the uh the inability to equate the number of cases filed with the actual activity.

[00:13:12] Speaker 1: One must remember that at least in the case of the Hawaii Civil Rights Commission, they're actually promoting uh for cases, and there's absolutely no cost whatever to the complainant. So I think many people look at this as a possibility of making some easy money.

[00:13:26] Randall Roth: I I I've heard from employers that either because it's it's through a process like the one you're referring to where where the complainant isn't paying money out of pocket, or even in litigation where the complainant often times has an attorney who's who's working on a contingent fee basis, that employers sometimes feel as though it's it's not a level playing field because uh win or lose, the employer's going to be out an awful lot of money defending this, and the word you used in your article this morning was extortion. I've heard employers comment that they feel like they really don't have a choice.

[00:14:00] Speaker 1: Well, let me uh add to your comment. Not only does the complainant not have to put any money forward, but the complainant risks no money as well. Under the Hawaii statutes, if I prevail here at the Supreme Court where where my case has been uh taken to and and we we will not know this for about two years from now, I will get nothing back of the $100,000 that I've spent. And I have no recourse against either the Civil Rights Commission or the complainant.

[00:14:29] Randall Roth: Okay. So from your point of view, something is wrong.

[00:14:32] Speaker 1: Something is seriously wrong.

[00:14:34] Randall Roth: Okay. Sam, thank you. We really appreciate your participation this morning.

[00:14:37] Speaker 1: Not at all.

[00:14:38] Randall Roth: Okay. Well, my guests in the studio um any reactions to what you're hearing from from Sam? Ellen? And I look at Ellen because of the three lawyers in in the studio this morning, even though you've done work both for plaintiffs and defendants, I I for some reason I think of you as being more on the plaintiff side, just as as Cindy I think of of being more on on the defense side, even though I think she's been on both sides. That's why I'm I'm asking if you've got a reaction to Sam's comments.

[00:15:07] Ellen Godbey Carson: Yeah. The costs of litigation are very burdensome. What Mr. Tieg just described are commonly incurred costs to defend a sexual harassment case through a trial, and that's over $100,000. That's often what the plaintiff is paying, or their counsel is paying to prosecute the claim to the same distance. So it is something that is a real, can be a real burden for both. Um many plaintiffs actually are not on contingency fee, it is becoming more and more difficult. Always has been, frankly, to find contingency fee counsel for these cases just because often the amount that they have that they are likely to recover is not sufficient to be able to be able to represent them on contingency.

[00:15:44] Ellen Godbey Carson: So a lot of the women are needing to pay the same amount from their pocket or or recruit. That's one of the reasons why um my own personal feeling is that the parties are better served in the very beginning by doing a very early neutral, immediate evaluation by an outsider that can come in, investigate, do fact finding and issue a recommendation about an immediate remedy, rather than having both parties incur just years of of what can be invasive and burdensome uh litigation.

[00:16:09] Randall Roth: And I guess that was the main or one of the main things I got out of your article was that you don't have to go to court. It doesn't have to be as slow and as expensive as what many of us think of it as being. Are a high percentage of these claims being routed through mediation and arbitration?

[00:16:25] Ellen Godbey Carson: No, they're not in general. I think the public overall doesn't know as much about mediation or early neutral evaluation as it does trials because trials are what you see on TV. Uh the other things though can be conducted within one week or one month of these incidents occurring. And in fact, the law requires an immediate investigation to be done. So having one done by a competent outsider that's very experienced in civil rights may be something that not only complies with the law but gives an immediate fair uh recommendation for resolution that both parties can live with. And when you look at the alternative of spending a couple years uh doing what Mr. Tieg just described or what the plaintiffs need to do on the other side, sometimes it can be a much preferable alternative, and so I always encourage parties to look at those alternatives first before they proceed to litigation.

[00:17:08] Randall Roth: Okay. Well, I want to remind listeners that this is the Price of Paradise radio show. My name is Randy Roth, and I'm here in the studio with Ellen Godbey Carson, who's a partner with Austin, Hunt, Floyd, and Ing and current president of the Hawaii State Bar Association. Also Cindy Weiniger, who is a partner with the law firm of Watanabe, Ing, and Kawashima, and she also serves as an arbitrator with the court annexed arbitration program. And then Larry Foster, who is the recently appointed dean of the UH William S. Richardson School of Law, and is serving as a sexual harassment information advisor at the University of Hawaii. Now's the time in the show if you would like to get involved in our conversation, just call us at 955-8821 with your question or brief comment.

[00:17:51] Randall Roth: If you're on a neighbor island, just add 1-800, that number would be 1-800-955-8821. We have Wally Roth on the phones this morning and just give him a call, tell him what you'd like to uh uh to say, and he'll put your name on our our window and we'll get to you in order. Again the number 955-8821. Cindy, while we're waiting for some callers, uh there was an article in the advertiser two weeks ago in the uh the focus section. It was written by a a woman who is a professor of sociology at John Hopkins University, and she makes made some pretty strong comments about sexual harassment. Uh she was saying that it's a a new inquisition, that the accused are are presumed guilty, uh their reputations are destroyed.

[00:18:38] Randall Roth: Pretty strong language. What's your reaction to that?

[00:18:41] Cynthia Winegar: Well, there actually have been some cases that have looked at just that subject matter, Randy. Um for example, there was a case on the mainland involving a Hofstra University professor, who was alleged to have engaged in sexual harassment, and he basically stated that it started with the deck loaded against him from the perspective of um

[00:19:00] Speaker 1: guilty until judged innocent, and he sued Hofstra University for basically violating his due process rights and other rights, and he was successful in that claim. So, there are circumstances where what she's talking about occur, where there is an unbalanced approach to the issue. I see employers trying to carefully, and I think Ellen would see this too, they're trying to carefully balance in their own policies, the accusations that are made, and the interests of the person who is making the accusations, and the individuals against whom the accusations are made.

[00:19:34] Lawrence Foster: Larry, I know in your piece this morning, you made the comment that sometimes both parties end up feeling victimized by the process, and I know you can't talk about the Gretzinger v. Lamb case because you're a witness in that case, but we have here at the university a situation where the university has already settled with the woman who had initially made the claim of sexual harassment for $175,000, and there's a case against the university pending by the defendant in the original sexual harassment claim, complaint, and sometimes that employer really gets caught in the middle. Again, I know you can't talk about that specific case, but any thoughts generally about the process?

[00:20:16] Speaker 1: Let me, let me try to take it out of the university context and put it in a broader context. This problem comes up all the time in police brutality cases. For example, the police officer often feels that they've been victimized by the process. It's in the press, and if they are not immediately taken off the force or assigned other duties, the family of the person who was allegedly beaten comes forward and says, "Why aren't you handling this person, why is that person still on duty?" It's far broader than just sexual harassment cases. This comes up all the time with public employees in a variety of kinds of positions, and other kinds of cases, other kinds of areas. So it's not really limited to sexual harassment that you find this double victimization process being alleged or taking place.

[00:21:08] Lawrence Foster: Okay, well we've got our lines are full right now, and we're going to try to move through these calls as quickly as we can, so we can hear as many voices as possible this morning. Let's start with Eureka or Erika in Kailua. Good morning, Erika.

[00:21:21] Speaker 2: The second one is correct, and I say harassment too. Okay, thank you. I know, it's Erika, thank you. I wanted to say that I appreciated Ms. Weingarten's comments about trying to resolve the situation before the litigation prize, the whole court thing happens. So, I might just put in a plug for the non-profit Neighborhood Justice Center, of which I am a board member, and you don't have to pay $175 an hour, unlike another recent mediation we've heard about.

[00:21:51] Lawrence Foster: You guys are a bargain, aren't you?

[00:21:52] Speaker 2: Hey, it's a, you know, best thing since sliced bread. But, also I had a question, and that is when, let's say a situation arises that appears to be sexual harassment or harassment between two employees, one of them not necessarily a management person. You know, the suspect in the case is not a management level person, is how liable is the employer in any complaint that may be filed?

[00:22:23] Lawrence Foster: That's a great question, and as I listen to it, I'm reminded of the Mitsubishi case on the mainland where the company's being sued for a tremendous amount of money because of things that were going on along the assembly line among coworkers. Let me get an answer to your question, Cindy Weingarten.

[00:22:42] Cynthia Winegar: Okay. Very quickly, there can be circumstances where you would be liable for that type of conduct because the sexual harassment guidelines include coworker sexual harassment. But what's key there for the employer and what we're seeing more and more of in the cases is employers taking prompt remedial action, because the test there on the coworker sexual harassment is whether the employer knew or should reasonably have known about that conduct.

[00:23:10] Lawrence Foster: So you're saying if the employer hears about those sorts of things, they better act, otherwise they could have some liability even though management was not involved at all in the alleged harassment.

[00:23:20] Cynthia Winegar: That's correct, Randy.

[00:23:23] Lawrence Foster: Good answer. Thank you very much. I really enjoy your program. Erika, before you go off the air, you know the neighborhood justice center is a resource that I think a lot of people don't know about. How would people find out a little bit more about it or who would they call to get in touch with somebody who's involved in that?

[00:23:36] Speaker 2: That would be just a call NJC directly, the neighborhood justice center, and the number I believe is 521-6767.

[00:23:44] Lawrence Foster: 521-6767. Okay, thank you very much.

[00:23:48] Speaker 2: Thank you very much.

[00:23:51] Speaker 3: Hi, good morning. I'm really nervous about this because I'm in the process of a case right now. I work for the federal government and I filed an EEO complaint, and I was harassed and am still being, after one year, harassed by my RMO, and an investigation ensued and they did find that this gentleman was in violation of the Civil Rights Act and I'm out $2,500 in attorney's fees thus far. I've been offered a settlement, which is quite small and in settling, they want me to quit my job. I find that pretty shocking, and after the investigation, the gentleman was found in violation.

[00:24:48] Lawrence Foster: Let me, let me ask you just generally, what what the nature of the activity was that that has been determined to be harassment in your case?

[00:24:56] Speaker 3: It's racially and sexually. As a matter of fact, the case is saying that because I'm a woman, I'm being discriminated against and because of my race, because I'm a Caucasian.

[00:25:13] Lawrence Foster: Okay, so it's, it's really discrimination as opposed to harassment?

[00:25:18] Speaker 3: Well, I'm being harassed because I am a, of the female sex, which I think is something that people need to be aware of. This not, it doesn't necessarily mean just being touched or approached. It's, it's being tormented mentally, just not treated as with the kind of respect that any human being should be afforded and in your case, you feel that that's because you're a woman.

[00:25:40] Lawrence Foster: Absolutely. Let me get a reaction to that, Larry Foster. Um one thing [unintelligible — audio glitch] I've occasionally seen at the university and [unintelligible — audio glitch] these kinds of cases um is that there are different kinds of discrimination. There's racial discrimination [unintelligible — audio glitch] gender-based discrimination, [unintelligible — audio glitch] sexual harassment and all of that. Occasionally you find cases that that have all those elements within them. Occasionally you have cases in your case sounds like it that it's not necessarily a sexual harassment claim, but rather a a gender based claim or a race-based claim. And people focus on the word harassment, and and it it sounds like from what you're saying that yeah, that perhaps there's some harassment going on. Um, but I in a in a legal sense [unintelligible — audio glitch] there's a narrower kind of harassment, or we we would parse that out very narrowly and say, this sounds like gender-based, and and race-based, but probably not sexual harassment.

[00:26:39] Speaker 3: Okay, can I ask you another? Very briefly, Judy because our lines are full. Okay, so I'm out $2,500. I've been told that they will give me a small sum if I quit my job, now my attorney is saying it's going to cost me about $7,000 to go forward. I make about $35,000 a year, and that's before taxes and it's really a tough situation. It's a two-way road out there, I want people to know that women who are being, men or women who are being harassed by their employer are not always just looking for money.

[00:27:13] Lawrence Foster: Okay. Judy, thank you for your call. You know, Cindy, as I was listening, it kind of reminded me of some comments in your article this morning that um you know it's tough to draw a line between harassment and and just um behavior that is less than ideal. Um, any thoughts about what you were hearing from Judy?

[00:27:31] Cynthia Winegar: Right, that that is still a major problem, um Randy. Um, and and as we've indicated, there is no bright line, and the ninth circuit, the circuit that Hawaii is in, has said that also. It's um very hard um to advise employers and for employees to understand um what it is that constitutes sexual harassment. I think one of the most interesting things is when you have training sessions involving sexual harassment, you may think that because for example, the Ninth Circuit has this reasonable woman standard that I talk about in my article, that um that the women would take a certain viewpoint on the issue of hostile or offensive working environment, you look at that and you just see wide variations in the people talking about the type of conduct they find offensive.

[00:28:31] Lawrence Foster: And I think that is important for our listeners to realize that in our circuit, the ninth circuit, it's not the so-called reasonable person test, but the reasonable woman test, which presumably means the court would be more quick to find sexual harassment than it otherwise would be.

[00:28:42] Cynthia Winegar: Well, I think, first of all, let me let me say one thing, Randy. It's for those cases where males are harassing, you know, allegedly harassing females, because often times they say, "well that it's not going to be in the other cases, right? That they're applying a reasonable woman test." But I think the view is, yes, you have to think that it's more complicated now than less complicated in the analysis. What is, what would a reasonable woman find offensive?

[00:29:30] Lawrence Foster: Harassment hurts everybody. It doesn't matter the source it comes from. It hurts the employer, it hurts the employee. It causes morale problems. Sometimes you'll see illness and absenteeism, staff turnover, it causes less respect and ability to be productive in the workplace. So it's, it's something from everybody's perspective that we need to identify and promptly get rid of it. I hear these comments all the time. I've attended a number of these workshops that Cindy is talking about at the university, [unintelligible — audio glitch] do a fair number of these. We're an educational institution, so we do education very well. And and and that comes up all the time. What can I do, what can't I do, and I think some people do feel that they're they're chilled in their relationships these days.

[00:34:55] Lawrence Foster: As I talk to employers, one of the things that I heard over and over is that the newest big business in Hawaii is giving seminars on sexual harassment that from the employer standpoint, it can be very expensive and they worry that they're sensitizing employees as Cindy had suggested that might be one of the factors behind all of the complaints. Let's go to John from Kailua. Good morning, John.

[00:35:16] Speaker 4: Morning. Uh as they talk about chilling in relationships, I'd like to give you a personal example. I'm a 30 member of the faculty at the university. At the faculty meeting some years ago, one of the female faculty members stood up and said, "Sexual harassment is anytime a male looks at me below the chin." Uh, my reaction to that was to be very, very careful how I looked at my female students. Uh, never never to interview or talk with a female student in my office unless the door was open. A definite chilling of relationships and I think the female students suffered as a result.

[00:35:55] Lawrence Foster: Uh, you you raise some real interesting questions, Cindy Weingarten.

[00:35:59] Cynthia Winegar: Well, Randy, if I could and one thing, I think the gentleman is quite correct in one sense. This is probably even before the reasonable woman standard as he indicated, but basically now, if somebody asks me in the audience, well could this be a problem and we go around the room and we do these types of things about whether this conduct could create a problem. Not not what the gentleman is talking about, but certain kinds of conduct. If they're left, or the audience is left with a situation of doubt, I would tell them, when in doubt, don't. I mean, that's how how the line is so unclear. Because basically, it's the opposite of what the Supreme Court said about obscenity, "I'll know it when I see it." No, you will not necessarily know it when you see it in this area.

[00:38:00] Randall Roth: that's lightly raised except in very unusual circumstances.

[00:38:04] Caller: And I guess that was often heard six years ago during the Anita Hill Clarence Thomas controversy. Why would she be saying these things if if there wasn't some truth to it?

[00:38:13] Randall Roth: Okay. Well, John, thank you for your call, really. I really appreciate it. I'm going to watch where my eyes go in the future. Uh, let's go to Mary on Kauai. Good morning, Mary.

[00:38:24] Speaker 1: Good morning. I just want to echo what the gentleman was just talking about and um tell you of the situation that I'm intimately involved in. Um my husband has been falsely accused of sexual harassment and assault and there's literally no uh truth whatsoever to the allegation. Um the young woman who has made these charges um is trying to gain monetarily. And the scary thing is that when you find yourself facing that kind of allegation these days, you are considered to be guilty until proven innocent.

[00:39:13] Randall Roth: Well, let me get my my guest thoughts on that and and you know

[00:39:16] Speaker 1: I I just want to give you some more information.

[00:39:19] Randall Roth: Well, Mary, let me let me come back to you [unintelligible — audio glitch] just a moment. But you know, as I was listening to the first part of Mary's comments, I was reminded of the news story, supposedly, and who knows if this is true or not, but on the Mitsubishi case on the mainland, supposedly, a number of women plaintiffs were overheard singing from the women's restroom, 'We're in the money'. Um, I think there are some people who feel that a number of these claims are motivated by a desire to uh pull the handle on the slot machine of of litigation, you know, to get a a real big payoff. I'm curious very briefly, we'll just go around the room here in the studio, Larry, to what extent do you think that is a factor?

[00:39:58] Lawrence Foster: Um, I I don't practice in this area so I really I'll pass on that question.

[00:40:02] Randall Roth: Okay. Ellen?

[00:40:03] Ellen Godbey Carson: I think the primary interest is in vindication and safety rather than money itself, but money is one means of vindication.

[00:40:09] Randall Roth: Cindy?

[00:40:10] Cynthia Winegar: Well, I think monetary is is the monetary relief is and the publicity is a factor. It's a very definite factor. On the other hand, I would also agree that, uh with Ellen that that these matters are very serious and are being treated seriously by employers. And there are other instances where actually it's the educational methods working and people are raising these issues. And really what the employer has said is, if you have these complaints, bring them to us.

[00:40:35] Randall Roth: Okay. Mary, stay on the line. My wife just called from the Big Island and reminded me that I need to tell listeners that this is The Price of Paradise radio show. My name's Randy Roth, my guests in the studio are Ellen Godbey Carson, who's the current president of the Hawaii State Bar Association, Cindy Weiniger, who is a partner in a law firm and she specializes in this area, Larry Foster, the Dean of the UH William S. Richardson School of Law. We're talking about sexual harassment or harassment, either way you want to say it is fine with us. And if you'd like to ask a question or make a brief comment, call us at 955-8821 here on Oahu, or on the neighbor islands, it's 1-800-955-8821. If you tuned in late, you'd like to hear the show in its entirety tonight at 8:00 p.m. on KIFO, that's 1380 AM, you'll be given that opportunity. Okay, Mary, very briefly, and we do have a lot of callers waiting Mary, so if you could very briefly finish your comment.

[00:41:31] Speaker 1: Okay. I just think it's really important given the response that you got from your panelists to recognize that their response was still assuming that the person making the allegation is telling the truth. And it must be recognized by people throughout the country that it is extremely easy to lie about sexual harassment or sexual assault.

[00:41:55] Randall Roth: The nature of the claim, I guess is such that there's seldom another witness and it tends to be the word of one against the other. And Ellen, I see you're nodding.

[00:42:04] Speaker 1: If you find yourself in a room alone with a person, you could be charged with sexual assault or harassment, and you are going to be going through hell for who knows how many years and how many thousands of dollars. You will be lucky if you're not fired. And then you will find yourself with prosecutors taking the case because there's no political downside to them doing so. And you will have prosecutors trying to get you to settle, and settlement means pleading no contest. You plead no contest that ruins your reputation. Settlement has to take into account that one person may be completely not telling the truth.

[00:42:48] Randall Roth: Mary, you've you've been an articulate and and passionate voice, that's added a lot to our conversation. I really do appreciate, but we've got so many people waiting I have to move on. Thank you very much. Let's go to Larry in Makiki. Good morning, Larry.

[00:43:01] Lawrence Foster: Good morning, Randy. Um I wanted to mention uh a method of working with these kind of sexual harassment cases and discrimination cases that your guests haven't mentioned yet, and that's the corporate ombudsman. This is quite popular on the mainland and for some reason doesn't exist yet, at least not that I know of in in uh Hawaii. Um in fact, I was so interested in it as a mediator that I went out and got ombuds training and came back and found that uh it's uh, you know, kind of a pioneer that I have to do an educational uh project first before people understand it, but I know I know your guests are familiar with the role of the ombuds and how they work not only with the discrimination cases but also with the retribution uh that some of your callers have just mentioned.

[00:43:49] Randall Roth: Okay. Larry, let me let me ask Larry Foster in the studio, is that kind of the the idea behind the sexual harassment advisor that we have at the university?

[00:43:58] Lawrence Foster: Um, let me put a little bit broader. When we were looking at revising the uh procedures in 1994 for the university, uh, we were looking at um uh trying to resolve these kinds of uh claims and whatever as as simply as possible uh at a institutional level as as opposed to going to court. Uh we still have tremendous costs that get involved in this. Uh institutional costs, resource costs of of investigating and resolving these kinds of things. And and what we tried to do was was build into the procedures uh a number of things that would encourage people to resolve these things as quickly as possible and as informally as possible. Uh the longer these things uh drag on, uh the more likely more people are going to feel that they're victimized as a part of the uh the process itself. Um so um uh [unintelligible — audio glitch] narrow question was the sexual harassment information advisor, kind of a long title. Uh we used the acronym SHEAS uh at the university. Um the uh the idea is that we're we're primarily to to provide um information for people, uh and also on occasion to assist in the informal resolution of a problem. So the the ideal concept was that we were all around campus in sort of mid mid-management positions and when an issue came up we could assist in the resolving of it very simply, uh moving a student from a section if there was any any kind of uh um uh concern by the student and and trying to do it as in a as a non-disruptive way [unintelligible — audio glitch] possible.

[00:45:35] Randall Roth: So perhaps a corporate ombud ombudsman would would serve a similar function.

[00:45:39] Lawrence Foster: Um, yeah. Yeah.

[00:45:41] Randall Roth: Okay. Larry, from Makiki I appreciate your call. We're going to have to move on. Uh I appreciate it a lot.

[00:45:48] Lawrence Foster: Sure, thanks, Randy.

[00:45:49] Randall Roth: You bet. We go to Kathy in Manoa. Good morning, Kathy.

[00:45:53] Speaker 2: Uh Kathy is not on the phone right now. Brad, her husband.

[00:45:55] Randall Roth: Oh, okay. Hello.

[00:45:58] Speaker 2: Aloha. What's up?

[00:46:00] Randall Roth: Well, we had a little problem here with the the school. Uh we have a child that's in middle school and she developed very early in age and she's uh you know, very chesty. And we've experienced a lot of problems at the uh with the the young boys at school of course they made comments and and uh nothing ever happened to them. She she asked for sexual harassment complaints against them a couple times and then we ended up with the school administrators. Uh she was scooting her chair into the table in the library once and a teacher admonished her and told her she was obscene and because of the way she was scooting her chair and the movement that was being created. Yeah, obscene and obscene and disgusting. And uh she went in for uh counseling, and the counselor told her, 'She wish she had her problem'. And it's we've had other problems with she'd come home

[00:47:08] Randall Roth: Yeah, we I tell you what we've we've got an idea I think for what's going on. Let me get some quick reactions.

[00:47:14] Speaker 2: Well, we were told not to say anything by the administrators and we've written the DOE and things on that order.

[00:47:20] Randall Roth: Okay. Let me let me get some real quick reactions and when we want to get to our other callers. Um Ellen? Ellen Carson?

[00:47:27] Ellen Godbey Carson: This is an example I think of of a school or an employer that doesn't understand what to do in response to a complaint. And it's um to to address to the issue that Mary raised. I think the the response to these complaints is supposed to be to take it seriously, to assume that there may be some validity in it and to investigate it thoroughly and assure that if there is a problem, that it's rectified immediately so it won't occur again. That's true in schools as well as in employment settings. And that that issue of taking it seriously, investigating and doing something about it, is just crucial to making sure it doesn't happen again.

[00:47:59] Randall Roth: Okay. Cindy?

[00:48:01] Cynthia Winegar: I think Ellen said it all actually.

[00:48:04] Speaker 2: Okay, Brad, we've got a we've got to move on. We've got to move on. I appreciate your call. We've got some people who have been waiting a long time. Thank you.

[00:48:11] Randall Roth: We'll go to John in Makiki. Good morning, John.

[00:48:14] Speaker 3: Good morning, sir. I'd like to take this conversation uh level higher. For example, it seems like this harassment cases are a big white elephant. And being they're a multi-cultural society and some societies tend to touch as a way of communication more than others. Uh this can be a horrendous environment in the state of Hawaii for multi-cultural expressions. And if you take that a step further, the school was a slight example of that, it can be mind-boggling when we raised with the idea that touching is a form of caring.

[00:48:53] Randall Roth: Yeah, John, you've raised a a fascinating aspect of this. I was raised with the the notion that if you don't kid people, you don't like them. And uh kidding can get you in trouble in this area of sexual harassment. My guest, very quickly, what do you have to say about John's excellent point that somehow this skull of multiculturalism, respecting each other's culture, is somehow coming into um uh conflict with sexual harassment as an area of the law? Cindy Weiniger?

[00:49:19] Cynthia Winegar: It is coming into conflict and I agree with the gentleman caller's viewpoint because basically if you were to ask me as a defense attorney, do I have to advise my clients that for example our Hawaiian groups or others that they should cease and desist in some instances from expressing um uh expressing affection or having greetings that are typical of this area? Or saying you look nice today, nice blouse. Anything, anything that would be a cultural response there? If they ask me that and we're talking about that, I would tell them generally speaking, they should not do that or they run a risk of someone finding that offensive.

[00:49:51] Randall Roth: Round off all of the ways you were brought up in terms of dealing with people. Um, Ellen, your reaction to this.

[00:49:57] Ellen Godbey Carson: I I tend to agree the the workplace requires some inhibitions on our normal free speech. There's certain types of racial slurs we don't make in the office because it's too offensive to other people. I think we need to realize that just for that same reason, there's certain types of inhibitions on personal conduct that we need to all take to make sure that everybody's on equal footing in the office, otherwise we might be inflicting our culture on other people that perceive it differently, that feel differently and that may really be inhibited in their own work performance by things that they find very offensive or intimidating.

[00:50:27] Lawrence Foster: Let me again make it broader than than sexual harassment. This comes up in in many areas of our legal system in the criminal law area. Uh, for example, some of our our local uh communities and cultures, the Samoans have a very strong uh uh tradition of of taking care of of uh incidents that between members of their community and that will occasionally come in conflict with the way our legal system thinks these incidents should be taken care of. So if there's a criminal matter, the community thinks they can take care of it and yet the prosecutor has to step in. Um, it it's a broader than than just sexual harassment, um but it's it's a a very important issue and as we become more and more multicultural, it becomes a bigger and bigger issue.

[00:51:05] Randall Roth: John, thank you for your call. That was uh an excellent observation of yours. We go to uh Mapuana I think it is in Honolulu. Good morning.

[00:51:14] Speaker 4: Good morning. Um I wanted a little I guess you'd say advice or or know how from powers that be so to speak on where to go with a big problem I have and that's the desperate treatment of people by the Civil Rights Commission and there they pick and choose their cases, they put out you know these big ads for cases. And I've spent a lot of time in research looking at their case history, the fact that there have been lawsuits against them for prejudice in within themselves. Um you know, I I want to know why there's no overseeing body to say, 'Hey you know, are these people acting fair to everyone?'

[00:51:49] Randall Roth: That's that's a good point and it's it's one that indirectly was raised by Sam Tig in in his article in this morning's paper. I know when I talk to him on the phone a couple of days ago uh he was saying that he feels that that there's no oversight, that the uh Hawaii Civil Rights Commission for example uh is just out there doing things that he feels uh are victimizing employers like him. Let me get some reactions to uh Mapuana's comments. First Cindy Weiniger?

[00:52:15] Cynthia Winegar: Well, I think the listener is correct. I mean there is no there is no basic oversight there and I think the public is not um really fully aware of all the things that are happening in terms of of case loads and other things that are taking place. But um this is true with the EOC as well. I mean these are both enforcement agencies but there is no direct, you know, oversight over them.

[00:52:36] Randall Roth: Hawaii is is generally regarded as a pro-labor state. Uh among lawyers is the Civil Rights Commission perceived as being, you know, relatively speaking, pro-employee in these controversies?

[00:52:48] Cynthia Winegar: Well, I think definitely in this state that you've captured the the sentiments, Randy. It would be viewed to be a pro pro-labor state and that those organizations that are set up like the Department of Labor and Industrial Relations, at Workers Comp Division, the other things are generally coming from a from a pro-employee stance and the Hawaii Civil Rights Commission would be would be no different.

[00:53:07] Randall Roth: Okay, Ellen Carson, any comments about the Hawaii Civil Rights Commission?

[00:53:12] Ellen Godbey Carson: I'd say that as to the Civil Rights Commission, EEOC and and the Department of Labor, that yes, they are set up to protect rights that are established for employees. So their enforcement obligation is to to look at those rights and try to enforce them as best that they can. They rarely have the staffing to be able to do the job that they need to do. And so in so far as they need to pick and choose cases to try to set examples within the state or to try to do things that may impact the broadest number of people, then that's often the type of criteria that they need to use to make their their small resources most productive.

[00:53:45] Speaker 4: I just want to make one real quick comment to go on. What I want to say is this, like in Sam's case for instance, you know, he's spent 100,000 on a case where the employee lied to him on a situation. In another case where the Civil Rights Commission proved that the employer was, you know, unfair to the employee and did not raise his salary, etc. because of age, they said, 'Well, we're sorry, but you know, they hired somebody else who's younger than you, so it's okay now.' That's what I'm saying. There's no oversight within the commission.

[00:54:13] Randall Roth: Okay. Appreciate your call.

[00:57:00] Speaker 1: maybe circumstances that the court deems inappropriate, for example they have now sealed the records as I understand it in the Varda case to be sure that there is no um, um, access to confidential information and so forth. So I believe the federal rules um, which um have um some restrictions on your ability to inquire into for example past conduct, can, uh you can definitely have these matters heard within that framework.

[00:57:25] Speaker 2: So when you say welcomingness, you're saying from the defense standpoint, if you can convince the jury or whomever that the plaintiff had had welcomed this that she had asked for it in terms of the the behavior that that she had exhibited in the workplace, then that's a good defense.

[00:57:42] Speaker 1: Yes, that is part of the defense.

[00:57:44] Speaker 2: Okay. Well we're down to to the last uh five or six minutes. And what I'd like to do is give each of our guests in the studio an opportunity to uh add what needs to be added to the conversation or to comment on things that you heard earlier but didn't have a chance earlier to comment on. Let's start with Cindy Wineger.

[00:58:02] Speaker 3: Randy, thank you. Um, two comments. One, I want to say where I am in agreement with Ellen's viewpoint today. I think mediation and arbitration of these types of claims has great promise for the future. I think we're going to see a lot more claims being adjudicated in this fashion. And I think also, though, you you we've heard many criticisms uh by callers etc. today about the enforcement agencies, but I I do want to say that I have interfaced with them and I realize the difficult role that they play, as Ellen has indicated with the reduced staffing and so forth that they have. So um, we don't have their perspective articulated today, but I think it would be a very important perspective for anyone to uh to hear in this audience.

[00:58:43] Speaker 2: Okay. Ellen Carson.

[00:58:44] Speaker 4: These are some of the most difficult cases, they often do come down to credibility and factual issues and frankly, both sides may be very well intentioned and may simply have very differing perspectives on what acceptable conduct is, or what has happened. To us, to me personally, one of the best things to do is simply to provide an a quick form that is non-adversarial, that is fair and objective and that tries fairly to be able to resolve these complaints and that's why I'm a strong believer in trying to leave litigation as the very last alternative and instead looking for a primary means early on, to be able to have a mechanism that both the employer and the employee feel would be a fair way to resolve this, and that both parties can do to try to preserve the working relationship and try to make the company productive again and also something that can leave everybody knowing that the civil rights laws are important, that everybody supports them, and that they we're all doing our best from both the employer and the employee's perspective to make sure that everybody has a fair chance to do their job the best they can.

[00:59:41] Speaker 2: Okay. Larry Foster.

[00:59:43] Lawrence Foster: Yeah, I I agree with both uh both comments. Um, there's some broader issues [unintelligible — audio glitch] sexual harassment is just an example of and uh one is the cost of litigation and and that's why arbitration and mediation is so critical. Um um we heard from the woman who is is spending thousands of dollars trying to pursue a claim. We heard from the from the uh the man whose company is spending hundreds of thousands of dollars trying to defend against a claim. Uh there's got to be a better way of doing it. Um the second broader issue that that has come up is this presumption of guilt or innocence. Uh it's it's considered to be uh by most Americans in a fundamental to our society as a presumption of innocence. And yet in a number of kinds of cases that that tend to catch the public's eye [unintelligible — audio glitch] the media gets involved in this, uh um that there's just a lot of stories that come out.

[01:00:31] Lawrence Foster: Uh sexual harassment cases are exciting, they're they're jazzy, uh police brutality cases are exciting and jazzy, uh and and they make headlines and people's names get out in the press. And I think in the common popular perception, [unintelligible — audio glitch] uh it's real hard to avoid any kind of taint against people who are accused of doing things in these situations.

[01:00:52] Speaker 2: Okay. Well, there are two other comments that that I'd like to make and get your quick reaction to in the couple minutes left. One, I've read that unlike federal law, in the law in a lot of other states, in Hawaii, there's no limits on damage awards in this area. Ellen Carson.

[01:01:06] Speaker 4: That's correct.

[01:01:08] Speaker 2: Um, so in Hawaii potentially the numbers could get far larger, uh and our juries are generally considered to be relatively generous juries. Once they decide that something wrong has been done,

[01:01:18] Speaker 4: That's right, the federal law imposes a limit that's generally about 100 to 200,000 depending on company size for all damages, but that is not true of Hawaii law.

[01:01:27] Speaker 2: Secondly, especially because of of the the military military presence here in Hawaii, we probably ought to mention that, at least according to the newspaper studies studies indicate that uh a very high percentage of women in the military feel as though there's sexual harassment on a regular basis against them. Uh any quick reaction to that before we wrap up the show? Cindy.

[01:01:50] Speaker 3: Well, I think we're all reading the newspapers together on that, Randy, and I certainly see the um federal government working at at least its media image on that, on that issue.

[01:02:00] Speaker 2: Okay. Well, I I want to thank uh thank our guests this morning, Ellen Godby Carson, who is the president of the Hawaii State Bar Association, Cindy Wineger, a partner with Watanabi, Ing and Kawashima, Larry Foster, the dean of the William S Richardson School of Law. Our producer is Susie Roth, helping out this morning in her place was Wally Roth, the director of operations for Public Radio is Jeff Ailardy. We hope you'll listen next week when we're going to be talking about decisions of the Hawaii Supreme Court. I think a lot of people realize that what the legislature does affects them and what the governor does affects them. I think a lot of people don't realize that the decisions of Hawaii of the Hawaii Supreme Court do affect them in a lot of ways. We're going to have Clinton Ashford and Dan Case here to talk about that.

[01:02:44] Speaker 2: You've been listening to the Price of Paradise Radio Show. I'm Randy Roth. Aloha.

[01:02:24] Randall Roth: Listen next week when we're going to be talking about decisions of the Hawaii Supreme Court. I think a lot of people realize that what the legislature does affects them and what the governor does affects them. I think a lot of people don't realize that the decisions of Hawaii the Hawaii Supreme Court do affect them in a lot of ways. We're going to have Clinton Ashford and Dan Case here to talk about that. You've been listening to the Price of Paradise radio show. I'm Randy Roth. Aloha.