The high cost of progress
Class Action: The Story of Lois Jenson and the Landmark Case that Changed Sexual Harassment Law by Clara Bingham and Laura Leedy Gansler. 

New York: Doubleday, 2002, 390 pp., 

Reviewed by Alice Kessler-Harris

A WIDELY USED GUIDE to employment discrimination contains four paragraphs on sexual harassment and only one on the particular form of harassment known as a "hostile environment." "Unwelcomed caresses, obscene comments and the like can make a woman's working conditions unbearable...." writes author Michael Evan Gold. Such behavior is illegal. But what does it take to prove it exists?

The judicial decisions that hold a company liable if it tolerates hostile conditions are of astonishingly recent vintage. The idea of a hostile work environment was first floated by Catharine MacKinnon in 1979. In 1980, the Equal Employment Opportunities Commission issued guidelines incorporating the notion. And in 1986, in the landmark case of Meritor Savings Bank v Vinson, the Supreme Court decided that sex discrimination could be based on a hostile work environment. A company, it decreed, could be held liable if it had not adopted and implemented an anti-sexual harassment policy. But all of these cases were based on the complaint of a single individual, and the remedy was to provide damages to the person who brought suit. Not until 1991 did a federal district court establish that women were entitled to sue as a class, making all female employees eligible for damages if a company was found guilty of tolerating a hostile work environment. That case, Jenson v Eveleth Mines, is the subject of this book.

If you have ever wanted to understand the painstaking way that law develops on the backs of individuals; if you have ever been curious about the human cost of legal progress--this is the book to read. Told in riveting detail, Class Action is simultaneously the story of a single gutsy woman and of the men who daily tormented and taunted her and her female colleagues. It reads like a detective story in which the central question is whether women like Lois Jenson will win the right to work at jobs that men have long considered their own. The authors, a lawyer and a journalist, never let us forget that the larger issues involved affect every working man and woman. But by unsentimentally and directly focusing on the life of a single protagonist and her struggle for reasonable working conditions, they bring the story home.

JENSON TOOK A JOB at the iron ore mine in Eveleth, Minnesota, because it paid about three times as much as she could earn anywhere else. A 27-year-old single mother who had been forced by poverty to put up her second child for adoption, she still had a small son to support. On the Mesabi iron range where she lived, most jobs available to women paid less than it cost to cover the rent. Her female colleagues at the mine were also drawn there by the wages. Most were family bread-winners; many had small children; a handful were single women. In March 1975, Lois was one of four women who went to work at the Eveleth mines, which had never before employed a woman other than in a typical pink-collar job. But they, and the United Steel Workers of America, had just agreed to a consent decree that reserved twenty percent of the new jobs in the iron and steel industry to women and minorities. Lois was in the vanguard of what looked like a sea change.

From the beginning, the men felt their jobs threatened by the influx of women. They were angry about having them around and uncomfortable in their presence. On the second day on the job, Lois heard a refrain she and others would soon learn to ignore. "You fucking women don't belong here. If you knew what was good for you, you'd go home where you belong." Initial grumbling about having to clean up their language quickly gave way to the attitude that if women couldn't take it, they ought not to be there. Many of the men exhibited an aggressive sexuality, an "in your face" anger that they claimed was simply teasing or having fun, but that most of the women experienced as shameful, humiliating and hostile. Foul language and incessant questions about their sex lives confronted all the women. Accusatory graffiti, posters and photos of naked or half-naked women, some with penises drawn in appropriate places, littered the plant, including the foremen's offices. Dildos modeled out of waterproofing material appeared in the women's work-places or taped to light bulbs. Men groped and touched on the flimsiest excuse or none.

Women who complained found themselves threatened with rape or sent to work in lonely parts of the plant where they felt vulnerable; one woman was forced to work with a man who dropped his pants when he was alone with her. Many parts of the plant lacked women's restrooms; others lacked facilities of any kind, and while the men relieved themselves against the walls, women stopped drinking and held their urine in for hours at a time. Dehydration and severe bladder and kidney infections followed. One male worker invaded the women's locker room and ejaculated on the clothing of a woman who had rejected his advances--not once but three times, before she had the courage to report him. Another slit the pants of a woman who refused him. Lois came to work the night after she had slept for the first time with a co-worker, only to discover that the news was all over the plant. Her partner chose to demonstrate his ownership by grabbing her crotch with a black-grease-smeared palm that left his hand print on her jeans; a chorus of laughter from the men surrounding her revealed that she had been set up.

But these men were union brothers, and this, according to their leaders, was merely their culture. Mean-spirited and hostile as they were, Lois could not publicly accuse them of making her life miserable without challenging the union ethos of fraternity. She was caught between union and management. Reliant on the union for protection, eager not to offend by turning a brother in to the bosses, Lois begged union officials to act, only to discover that they were men too and that the male culture transcended class lines. When she suggested a women's committee, and an open discussion of the problem, the one female union representative (a strong woman who later changed her mind and became a staunch ally) downplayed the possibility of a solution and suggested that Lois try harder to "get along."

With nowhere to turn, all the women learned to cope with this behavior in their own ways. Some gave as good as they got; one or two carried concealed knives with them to work; others retreated into sobs, or took sick days to recover from attacks. Silently, they gained and lost weight under pressure, endured sleeplessness, fear and anxiety, turned inward and learned to stifle their feelings. Only when the men became dangerous did women complain. The final straw for Lois came when she was stalked by an unstable salaried worker who invaded her home and threatened her son: the union still refused to go to bat and a management-promised transfer did not materialize. Lois filed her first formal complaint with the State Department of Human Rights in October of 1984.

TWO AND A HALF YEARS of escalating harassment later, a lawyer from the Attorney General's office contacted her to begin proceedings. During the next seven years, Lois was persuaded to turn her individual complaint into a class action. She identified and hired a private law firm to pursue the case; persuaded several women to join her at the cost of alienating most of the other women workers and the union she had fought so hard to protect; and finally won the right to have the case treated as a class action.

This was only the beginning of a process that was to leave Lois and the two other women who became the major plaintiffs in the case alternately exhausted, isolated and desperate. Fearful of retaliation and persuaded that the union might suffer irreparable financial damage, most of the women workers would not join them in the law suit. The rumour quickly spread that Lois and her friends were in it for the money and that a settlement would threaten the future of the company and the jobs of thousands of iron workers. And when the union (out of legal necessity) became a party to the suit, union leaders spread the lie that a settlement would bankrupt the company, and joined with managers in a successful alliance to persuade a handful of women workers to sign a petition testifying that they had never been subjected to harassment.

The story of how the law suit wended its way through trial and the ripple effect on the lives of the lead plaintiffs is filled with pyrrhic victories and heartbreaking defeats. Lois located a remarkable team of committed and able lawyers whose devotion to the principles at stake led them to take on the case and carry it through to the end at a cost of nearly six million dollars. But the long, tortuous struggle had a devastating effect on the lives of all the plaintiffs, and especially on Lois. Kathy Anderson, a once feisty pit worker, collapsed under the stress and retreated into silence. Lois' main ally, a former union leader named Pat Kosmach, developed ALS (Lou Gehrig's disease) and died before the case ended. Though her death cannot be blamed on the lawsuit, the gruesome scene in which the company's attorneys invaded her hospital room, demanding to see her medical records and seeking to depose a woman who could no longer speak, illustrates the ruthlessness with which the company sought to avoid paying damages.

And Lois slowly succumbed. Early on she had learned, through therapy, not to blame herself for the aggression levelled at her. A woman of sharp memory and courageous determination, she had saved harassing letters, taken photographs of graffiti, and kept a diary with her responses to events and her feelings about herself and her lawyers. As the trials began, she turned to medication to calm her nerves and help her sleep. The endless waiting, the rollercoaster of hope shattered by negative decisions, the brutal exposure of her most intimate and painful youthful experiences, drove her into paranoia and depression, until she could no longer face the workplace and was forced onto disability leave. Pills and more pills altered her once lithe body, blotched her skin and clouded her mind. By the end of the trial, the woman who had once been eloquent in her own defense and had picture-perfect recall slurred her words and contradicted herself on facts she had recited a dozen times before. Such is the human cost of our legal victories.

Not until 1992 did the case go to trial on the issue of whether the company had tolerated a hostile work environment. When, a year later, the decision came down unequivocally in favor of the women, they had to go back to court to seek damages, a process that required all of them to testify again. This--by now the third proceeding in which they had been called--began in January of 1995. Because the strategy of the company's lawyers was to claim they had histories of emotional disturbance, each woman was subjected to vicious cross-examination in which every aspect of her emotional life was explored. It ended in travesty when the judge decided that each woman's emotional trauma stemmed from prior condition, not from workplace harassment. The plaintiffs appealed successfully, garnering a blistering decision that ordered a quick second trial for damages, this one before a jury. But by now the women were ill, exhausted, bitter and resentful. Unable to face another trial, they agreed, one by one, to individual settlements. The case came to an end on New Year's Eve 1997, thirteen years after Lois brought her original complaint.

The case of Jenson v. Eveleth Mines made important law in two respects: it established that women could sue as a class for sexual harassment, and it placed the burden of proof on the company, not the victim, to show that where a hostile environment was found to exist, it did not damage individual women.

There are no simple victories: in the end, Lois Jenson and her colleagues settled for relatively modest amounts of financial compensation. Lois never got the apology she wanted from the company, and she, Kathy Anderson and others will bear the emotional scars of their ordeal for as long as they live. One day the history of feminism will be rewritten to honor individuals like Lois Jenson who struggled for so many years and at great cost to force companies to create workable sexual harassment policy. Until then, we have the authors of this wonderful book to thank for bringing this inspiring story to life.

Source: Women's Review of Books
Wellesley Centers for Womenhttp://www.wcwonline.org/index.html