TorteDeForm

Kia Franklin

“Silence never makes change”

That's what Anucha Brown Sanders said about sexual harassment in the workplace, reflecting upon her courtroom victory yesterday against the Knicks, Coach Isaiah Thomas, and Madison Square Gardens. The former Knicks executive was awarded $11.6 million in punitive damages, with compensatory damages that are yet to be determined. She told newspapers that she hopes this lawsuit will serve as a wake-up call for employers that are tolerant of sexual harassment. From the NY Times:

''I hope [the lawsuit] has an impact ... for employers across industry to take heed and pay attention and take responsibility for the workplace,'' Anucha Brown Sanders said on ABC's ''Good Morning America.'' She added that she hoped her case also would embolden women to speak up about sexual harassment.

Interestingly, Thomas did not have to come out of pocket at all in the punitive damages award, although his actions—allegations that he referred to Brown Sanders as a “bitch” and a “ho” and never disciplined player Stephon Marbury for referring to her as a “black bitch”—were at the center of the suit. After the jury verdict, Thomas remains adamant that he is “very innocent.” Brown Sanders' deposition and other trial materials, however, document that Thomas and Marbury frequently cursed at her, that she had been physically handled inappropriately, that management failed to follow through in “sensitivity training” to address her complaints, and that the circumstances behind her termination may have been retaliatory. You’ll find lots of information on the lawsuit in the NY Post, including links to depositions and past articles.

Unfortunately, Brown Sanders’ claim is not unique. Even in the recent months, the Supreme Court’s Ledbetter case, the EMC sex discrimination case, and even Justice Thomas’ decision to pick at the scab of the Anita Hill harassment scandal, display the pervasive incidence of sexist practices in the workplace and a disturbing brand of resistance against sexual harassment claims. Like Prof. Hill’s op-ed in the NYT notes, defenses to sexual harassment claims often include claims that the claimant (usually a woman) was under qualified, overly sensitive, or imagining the harassment. So not only do victims of sexual harassment have to navigate a hostile work environment, they also often have to shoulder a social environment that is hostile to any suggestion that sexism (rather than their hyper-sensitivity or healthy imagination) is a problem in our day and time.

Isiah Thomas’ testimony
that he would have reacted with zero tolerance had a white male called Brown Sanders the same derogatory names, but that there was something “different” about it when a black male used the terms, just goes to show how sexism as a system of oppression often overlaps uncomfortably and incongruently with racial oppression, creating confusing mish-mashes of abuse and ridiculous double standards. The Imus “nappy headed ho” comment, and again, the Clarence Thomas/Anita Hill scandal also both speak to this.

Allan Johnson in his book “Privilege, Power, and Difference,” says:

“The challenge we face is to change patterns of exclusion, rejection, privilege, harassment, discrimination, and violence that are everywhere in this society and have existed for hundreds (or in the case of gender thousands) of years…”
My two cents are that our society has a near-obsession with moving past the days of bra burning and lunch counter sit-ins in such a way that suggests we’ve already met the challenge Johnson articulates. Perhaps we suffer from fatigue from those times. Or maybe part of mystifying that era requires believing that “back then” we had problems with racism and sexism that are largely corrected now, only a few decades later. This belief would obvsiously be a delusion.

It is more than appropriate to celebrate the strides we’ve made in resisting various forms of oppression, accomplishments demonstrated in the legal context via Titles VII and IX, and in the social context via a general shift away from tolerating and accepting outward displays of racism or sexism. But I echo Brown Sanders’ hope that her lawsuit serves as a “wake up call”—I hope that it reminds us that we have not crossed the finish line just yet.

While getting there requires addressing systems of oppression on a wide scale, on a smaller scale individuals will continue to seek protection in the court system. Prof. David Whitfield wrote on the high cost of sexism in the workplace, noting that the legal cost is “no small potatoes.” He writes: “sexism leads to legal action because in a male-dominated, male-centered workplace it is tolerated.” Brown Sanders’ lawsuit is a case-in-point. She complained to managers and sought to resolve the matter outside of court, until she was fired and really had no recourse besides the legal system.

In Brown Sanders’ case, she found the protection she sought in the legal system. In Lilly Ledbetter’s case, she didn’t. The system is not perfect. Increased access to employment class actions, invalidation of unconscionable employment arbitration contracts that shut off access to the courts, and other improvements can make a difference. But in the mean time, the civil justice is a viable, potentially powerful alternative to silence. Because as Brown Sanders notes, silence never makes change.

Kia Franklin: Author Bio | Other Posts
Posted at 9:33 AM, Oct 03, 2007 in Civil Rights | Employment Discrimination
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Comments

Hire a woman, hire a lawsuit. Suicidal, for a business.

I would like to pass a federally mandated state statute. It immunizes females, civilly and criminally, for slapping a male that got fresh. Settle it on the spot, with the offender, and deter him.

This shows discrimination laws are for the plunder of profitable business by land pirates. Thomas paid nothing, learned nothing.

Posted by: Supremacy Claus | October 3, 2007 2:22 PM

Don't stop there--hire LGBTQ person, hire a lawsuit, hire a black person, hire a lawsuit, hire a disabled person, hire a lawsuit. And all of those people should just go hauling off on their harassors, too, I suppose.

Incendiary comments like this only further diminish your credibility. Let's get real here.

As a matter of fact, you could just as easily say hire a congressional page, hire a lawsuit, apparently.

The correct lesson learned is: "hire a sexist employee, hire a lawsuit," or "hire sexist management who doesn't properly respond to sexual harassment in the workplace, hire a lawsuit."

Posted by: Kia | October 3, 2007 3:51 PM

The ultimate authority in a business, the owner - has only one way to handle staffing issues like this.

Look at it this way:

If I choose to hire a someone, I can either a) take on the risk of a possible sexual harassment claim by that person, or b) risk a lawsuit because I hire an employee who themselves create a hostile atmosphere, or c) risk a lawsuit because I fire the employees I already have because I get concerned they might harass other employees and expose me to legal risk

I don’t want to be a dictator at work, and even if I tried my best I’d probably get sued because somebody claims I’m unfair and arbitrary. So my best option for staffing is to avoid legal risks entirely - by contracting offshore workers.

Every person that sits in front of me for a job interview poses some legal risk. Why take a chance I don;t need to?

Posted by: Sweating Through Fog | October 3, 2007 9:08 PM

Kia: Why all the emotion? Here is why.

I suggest that women who slap a pig for getting fresh should have legal immunity from civil and criminal liability. I don't care if they keeps their rings on. That ends piggish behavior on the spot, and permanently.

Here is what upsets you. That ends harassment on the spot. But is also ends the plunder of the wallet of the working class father taking a son to a basketball game by the rent seeking land pirate. That is the sole aim of employment bar, plunder, not to end harassment. Every penny of that lying skank's verdict comes from the wallets of working people you are lying about being your constituency. Your constituency are the multi-jet owning land pirates that pay your salary.

Posted by: Supremacy Claus | October 3, 2007 9:55 PM

Overly entitled minority gets its comeuppance.

http://freakonomics.blogs.nytimes.com/2007/10/02/video-is-the-law-of-unintended-consequences-the-strongest-law-around/#more-763

They were doing fairly well tha ADA, when lawyers turned them into lawsuits waiting to happen. The ADA made the disabled too risky to hire.

Any education or experience gap between female and male workers is gone today. The gender pay disparity now stems from the lawsuit risk of females, made into walking lawsuits by the land pirate. Underpaid females should thank and sue the employment law bar for their unfair treatment.

I would like to know if Kia's pay is the same as that of her male predecessor. She is far more accomplished and qualified than he was.

Posted by: Supremacy Claus | October 4, 2007 8:10 AM

First, a reminder:
Words of racist, homophobic, or sexist derivation (like "skank"), especially when used in personal attacks, are completely unacceptable and will be removed from tortdeform.

Now that that is finished, my responses:
Sweating Through Fog: You say that every person sitting before you in a job interview poses a legal risk, so why take one. You are severely limiting your options and I'm wondering if this is because you've never dealt with workplace discrimination.

First, sexual harassment claims are filed by all types of people, and against all types of people, so you will have to hire NO ONE if simply hiring someone who could possibly be sexually harassed is what you consider a real business risk.

Second, you never know who the harasser's going to be either, and as long as you're clear about having an anti-harassment policy in the office, the risk isn't yours of a lawsuit, it's the employee's of being fired.

And third, no reasonable employer would "fire the employees I already have because I get concerned they might harass other employees and expose me to legal risk." That kind of preemptive thing is silly. So let's not imagine all these added legal risks where there are none.

The only legal risk businesses face in terms of harassment claims is the risk of a lawsuit from not taking seriously reports or complaints that harassment is taking place. How do employers avoid legal risk? Respond appropriately to claims of sexual harassment.

SC:
Please pardon my emotional response, you know how we lawsuit-creating women can get. But actually no, that is not why I'm "upset." My problem with your "slap a pig immunity" proposal is that if applied to other discrimination contexts, it gets out of control. If not applied to other contexts, it perpetuates the gender disparities you refer to--why do women have limited remedies when other groups of people don't? And what happens when the person being sexually harassed is a man and the harassor a woman? Believe it or not, that happens more than you'd think. I'd love to see that in practice.

One other problem--what happens next? Let's say the guy's a wacko and keeps harassing anyway. Or what if there are so many people doing the harassing that her hands get sore? No longer an adequate remedy. Or let's say she hauls off on the harassor, he gets a black eye, she's legally immune, they fire her under pretense for something else. She made six figures, and now she's black-listed from working in her industry, a male-dominated field that doesn't want to deal with trouble-making women like her.

The error of your ways is clear now, I hope.

Posted by: Kia | October 4, 2007 10:23 AM

Of course, there's also the obvious difference in size and physical strength between men and women, which is approximately reason number 124 why Supremacy Clause's proposal is completely stupid. As a rather small woman, I know that unless I've had a good deal of martial arts or similar training, me slapping a guy, or any full-grown person, isn't going to do much good, especially if he's determined not to get slapped -- which, let's face it, somebody who's a sexual harasser, no matter their gender, isn't just going to sit back and let somebody slap them. They're not going to say, "Oh well, I harassed him/her, so now I'll just have to let them slap me." You seem to assume that sexual harassers are a kinder, gentler sort of criminal who will gently and happily take their punishment, but you've obviously forgotten that THEY ARE CRIMINALS. THEY WILL TRY TO AVOID PUNISHMENT IF AT ALL POSSIBLE. Your half-baked little scheme would also make harassers even more likely to focus on people who are physically smaller, as they would know the punishment isn't likely to be as bad if they target a smaller or less strong person.

And, who in this case determines what harassment is, since you've removed the third party? In Supremacy Clause's dystopia, we'd have people slapping the shit out of each other for all sorts of minor or perceived infractions, and the severity of the slapping would have no bearing on how bad the harassment is -- the only control for the severity of the slapping would be the size and strength of the victim versus the harasser, which, again, would open up smaller or, hell, disabled people for more harassment.

Supremacy Clause's proposal also obviously comes from a position of somebody who's never been harassed or physically attacked -- at the moment harassment or an assault is happening, most people either freeze or try to get away. Should we take away people's legal remedies just because they don't like to fight or were too confused, humiliated or frightened to think of it at the moment? Also, what if the harasser is a masochist who enjoys physical pain? That would only encourage them.

It must be nice to be so privileged that you actually believe such an idea would work, though. You should really try coming out and living in the world where the rest of us are living sometime.

Posted by: Veriditas | October 4, 2007 6:06 PM

I have no problem with the sexual harrassment suit, although I wonder why the punitives were slapped on MSG rather than the actual harasser.

I have an enormous problem with the amount of the punitives award, which are unconscienable. If juries would use their intelligence instead of their emotions when making such awards, the appellate courts would be much less clogged. Punitives must bear some relationship to the actual damages suffered - here a total punitive award of around $750K to $1M would be reasonable

Posted by: Paul W Dennis | October 4, 2007 8:34 PM

Kia: Everything you say is absolutely right. Sorry.

Have you had a chance to see your male predecessor's pay?

Posted by: Supremacy Claus | October 4, 2007 9:38 PM

Thanks for the posting this kia!! keep it up! you are most certainly right, silence never makes change.

it is so revolting to see that women who allege sexual harassment are being called liars -- of course it is nothing new.

Posted by: jenna | October 5, 2007 6:41 AM

Wow--the only thing I'd like to add is a response about the punitive damages thing. I was distressed that Isiah Thomas didn't have to pay them as well. But I would think that he'll have to pay compensatory damages. If anyone has this information please share.

Also, the fact is that Brown Sanders reported the incident, and the appropriate authorities didn't take action. So it's the management's responsibility for sanctioning this activity. It was their responsibility to deal with this. The punitive damages send that message. If Thomas footed the bill, and then got fired or took a leave of absence, MSG wouldn't have that added incentive to avoid future incidents like this.

The punitive damages were quite far from "unconscionable," especially given how they were split between the various responsible parties. They may be a little high, but they certainly don't reach the "shock the conscience" standard associated with unconscionability and there is no indication that the jury was driven by emotion rather than guided by reason. People can always say juries are too emotional when they think the award is too high, or that they're too callous when they think it's too low. But we weren't in that courtroom or in that jury box.

Posted by: Kia | October 5, 2007 11:15 AM

"Any education or experience gap between female and male workers is gone today. The gender pay disparity now stems from the lawsuit risk of females"

It's an interesting theory, Supremacy... Considering the Gender-Pay-gap (less pay for same work and same hours) has essentially never narrowed for as long as we have collected data, it is extraordinarily unlikely that there is any truth to your assertion.

Further, Sexual Harassment lawsuits really do require real incidents of sexual harassment. The reality is that most legitimate sexual harassment lawsuits wind up with technical-grounds dismissals, hung juries or total-character-destruction-of-the-abused-woman-leading-to-"reasonable doubt" when they go to trial, so the oddity in this case is that Anucha Brown won the lawsuit (esp. as a black woman alleging workplace harassment from black men -- exceedingly rare indeed).

This might serve as a wake-up call in a way that will make Supremacy even more mad -- As a wake-up call that Juries will no longer throw out a sexual harassment suit simply because one or two principal female witnesses engaged in consensual sex with one of the abuser(s), and that Juries will no longer throw out the harassment of a black woman by a black man b/c she's black and "he knew she liked [being abused]" or "She knew I was joking {when I called her a b*tch/c*nt/ho in the workplace}." We're still waiting for a case when a woman who once had consensual sex with a workplace abuser wins a sexual harassment case against them for the workplace harassment, which usually gets much worse after sexual contact (don't hold your breath).

Posted by: Miguel Pakalns | October 5, 2007 3:59 PM

Outside court, a beaming Browne Sanders claimed her victory was more about sending a message than about money.

Yeah right - that's why the actual sexual harasser didn't get slapped with the bill for the award. And that's why the jury award was so high that neither you, or your attorney, will never need to work another day in your lives. When you throw in the possible compensatory damage awards, the same could probably also be said about your children too.

But once again, "it's not about the money". Strangely, it's never about that...

Also, the article says the jury only consisted of 7 people. Isn't that a little low? Is that normal in New York?

Posted by: John Rohan | October 5, 2007 6:52 PM

The problem is that harassment, even the worst of the quid pro quo type, isn't worth anything in terms of real damage. The victim need only find a better job, as the single best remedy.

All of employment law is land pirate pretext, invented by pro-lawyer land pirates on the bench, out of whole cloth, lawlessly, criminally. It unjust plunders the wallets of working people to finance the unjust enrichment of criminal cult predators.

The biggest, unmeasurable damage is not from harassment. The biggest victims are the members of the legally over-privileged group that do not get hired, and suffer the economic consequences of this land pirate plundering.

Posted by: Supremacy Claus | October 5, 2007 11:59 PM