Where Do We Draw the Line? : Sexual harassment: Ask six people what they think about one case, and you can get six answers. The problem is the ‘wide gray area’ of our perceptions.

One is telling the truth. The other is lying.

And whom you believe depends, in part, on how you define sexual harassment.

With the exception of the most egregious cases, drawing that line can be difficult indeed. Which side you end up on depends on how you see things: One person’s friendly gesture can be another’s unwelcome pass.

Los Angeles attorney Frank Cronin has represented both defendants and plaintiffs in hundreds of harassment cases. When he presents the fictitious “Patricia Powell” scenario to business people at management seminars, he always gets a mixed response.

“There is a wide gray area between simple bad manners and sexual harassment,” Cronin says. “The problem I see from a legal liability standpoint is this: Since the average person on the street doesn’t know where that line is, everybody is putting themselves at risk in the workplace when they have a sexual discussion or make a sexual advance. No one has a clear idea of where the dividing line is, including the courts and juries.”

Under the Equal Employment Opportunity Commission guidelines on sexual harassment, Powell’s claim could be based on two issues: one, that her boss pressed her for dates and, two, that the sales representatives created a hostile working atmosphere.

When shown the Powell case, the reactions of half a dozen men and women polled by a reporter at the California Mart support Cronin’s belief: Sexual harassment is a judgment call. Only one woman clearly sees Powell as the victim. Most of the others think she has no case and that, in fact, it is up to her to make things right.

Paula, a 31-year-old employee in a downtown jewelry store, finds Bob Berry’s persistent invitations offensive.

“I think Patricia Powell was a victim of her supervisor because of the things he would say,” she says. “A supervisor should never get involved with workers, it just isn’t professional. The reason it rubs me the wrong way is that it happened to me at my last job.”

If a boss and an employee want to become romantically or sexually involved, Cronin says, they can-- as long as the desire is mutual. Behavior is only classified as harassment if it is unwelcome.

Paula says that at her last job, at a medical group in Calabasas, a supervisor who was evaluating her for a promotion asked her to dinner to discuss her responsibilities and salary. At dinner, he insisted that they dance, and when he took her home, insisted on accompanying her inside. When she asked him to leave, she says, he pushed her against a wall and tried to kiss her. She didn’t identify his behavior as harassment until a year later.

A middle-aged Vancouver man in the real estate business agrees that Powell seems to have a case. Most harassment, he says, stems from “male-pattern ignorance.”

“You have to have a feeling for a woman’s point of view,” says the Canadian, who refuses to give his name. “I guess if she takes offense, it is sexual harassment. If she doesn’t, then it’s not. If she was telling dirty jokes as often as the guys, it’s not sexual harassment.”

Precisely right, says Irvine attorney William Crosby, who specializes in employment litigation.

“Here, you have to make a judgment as to the character of (Powell) and the totality of this person’s personality,” says Crosby.

“It is a subjective thing. But assuming she denied the things (the sales reps) said about her, I would have to say if this woman legitimately was a person who just wanted to do her job in the workplace and be treated with respect and dignity and if she did not engage in those actions she was accused of (dirty joke telling, etc.), she is a victim of sexual harassment. If she did engage in those actions, then for this woman, it probably was not a case of sex harassment.”

Even though Paula thinks Bob Berry is guilty of harassment, she doesn’t think the sportswear company should have to pay a judgment. She does think Berry should be fired.

“It wasn’t the company’s fault,” she says. “It goes directly to the people who caused her the anguish or uncomfortable feeling.”

But under the law, a company is liable for the actions of its managers, Cronin says. “There is a legal difference between bosses and co-workers. The company is always liable for actions of its supervisors and its managers, whether or not the company is aware of them.”

If a sexual harassment claim involves co-workers, such as the sportswear company’s sales reps, Cronin says “the company is only liable if it becomes aware of the harassment and does not stop it.”

Cronin’s advice to those who think they are victims of harassment by colleagues: “Complain early and complain often.”

Shina Oladimeji, a 51-year-old program analyst for an insurance company, reads the scenario carefully, then shakes his head. No, he says, Powell is not a victim.

“The atmosphere in this work environment seems to make room for any kind of conversation between two people,” he says. “She had talked about going to male strip-tease shows. That kind of conversation was freely exchanged between members of the opposite sex. In a working environment, people should be able to talk to each other as human beings.”

On the other hand, says Oladimeji, “Sexual harassment would be a male colleague constantly asking a lady out and the lady consistently refusing. To me, that is basic sexual harassment. Or feeling a lady, touching a lady.”

Oladimeji says he’s been in a situation that could be construed as harassment. “I have had my butt pinched by a woman, but I don’t call it sexual harassment. It was in a friendly way. If I did do that (to her), I would not expect her to come out 10 years later with it. It just depends on who does it.”

Gita Moscowitz, 65, who sits in the California Mart lobby while her daughter shops, looks the story over: “I don’t know,” she says. “This sounds kind of normal to me. He didn’t touch her. If he asks you out, you can be flattered. Sometimes you can have wonderful happy endings. If he threatens your job, that’s a whole different story.

“I don’t think she is entitled to tons of money, though.”

Neither does attorney Crosby: “Her claim for $50 million is way out of line, ridiculous. It would probably put the company in bankruptcy. I don’t care how bad off she is, I can’t conceive of any sex harassment case that would merit a judgment of that size. Those are the kinds of awards that keep the public up in arms against attorneys and juries.”

Crosby says a recent survey of harassment cases that was published by the National Employment Lawyers Assn. found only 20% to 25% of cases involved settlements or judgments of more than $50,000. Larger settlements usually involved cases in which victims suffered clinically diagnosed mental disorders.

Last May, a Marina del Rey woman who was harassed by her supervisor at AT&T; was awarded $2 million by a Superior Court jury. “That is the case that defense lawyers think of when they think of sex harassment around here,” says Cronin. “No one wants to be exposed to that kind of damage.”

Few harassment cases ever make it to trial, says Cronin, and when they do, the plaintiff wins about two-thirds of the time in California. Trials are too risky for defendants, he says, and too painful for plaintiffs.

“I have been on both sides and have probably handled 200 sexual harassment matters, and not one of them has been fun,” says Cronin. “They are ugly, difficult cases.”

Some who read the Powell scenario are offended that she makes a big deal out of what happened to her.

“He sent her flowers and asked her to have a drink? I would appreciate it if he sent flowers. But if she doesn’t, she can put him in his place,” says the middle-aged woman who owns Gigi Accessories, a wholesale jewelry showroom in the California Mart.

“She tells him she is not that kind of person and that’s it! You know, a woman can encourage a man. If he really bothers her, she should quit! “

Twenty-six-year-old Luisa Zamora, who also works at Gigi, agrees with her boss: “I would quit,” she says. “ I wouldn’t want to work at a place like that. It’s not the only job in the world. Anyway, we’re only human. Who’s to say what’s right or wrong? How do we know she is a victim? (Bob Berry) really didn’t do anything wrong.”

And as for the sales representatives telling dirty jokes? “A joke is a joke,” says Zamora. “If you can’t handle it, don’t work there.”

The ‘Patricia Powell’ Scenario

For six years, Patricia Powell was a clerk at a sportswear company. Recently, she filed suit claiming she was forced to resign because of sexual harassment.

She said her boss, Bob Berry, “came on” to her. She said he tried to get her to go out for drinks and dinner and other events. When he traveled, she said, he would buy her gifts and, sometimes, send flowers.

Powell complained to Berry’s boss, Richard Ritz, who confronted him. Berry seemed surprised that his attempt to improve morale and build a friendship with all employees, including Powell, was construed as harassment. Berry suggested that he apologize to Powell in front of Ritz for any misunderstanding. The apology was made.

Powell also accused some company sales representatives of coming on to her. She said they asked about her sex life, kidded about her sexual prowess and told dirty jokes in her presence.

The sales reps said Powell often was the first to tell a dirty joke, talked about visits to male strip shows and seemed quite interested in their sex lives. They mentioned a rumor that she had affairs with several former sales reps.

Two weeks after Berry apologized, Powell quit. Several clerical colleagues said the reason was intolerable working conditions created by sexual harassment by both the sales reps and Berry.

Powell filed a claim with the EEOC alleging sexual harassment and filed suit seeking reinstatement, back pay and $50 million in punitive damages.

Source for model: Frank Cronin, managing partner, Jackson, Lewis Schnitzler & Krupman, Los Angeles