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the price of setting a precedent

Booknoise: What surprised you the most about this case?

Clara: The reaction Lois encountered from the other women. When Lois, Pat Kosmach, and Kathy Anderson first filed their Federal claim, they instantly became pariahs both at work and in their communities. Lois couldn't go to the grocery store without being shunned--or worse. After she filed suit, a hangman's noose was hung over Lois's workplace, and no one would ride in the elevator with her.

Laura: The other women at the mine were afraid of the reactions of their co-workers to the suit, so they turned against Lois and circulated a petition in support of the mine. A few of the women who filed the petition even testified for the company at the first hearing, on the issue of whether the case could be brought as a class. Their behavior reflects some of the different reactions people have to sexual harassment. Some fight it, others initially try to placate and appease the harassers. But appeasement of violence and abuse worked no better in this case than it generally has throughout history. In the end even the women who signed the petition realized that the lawsuit was their only chance to protect their right to work safely in the mine.

Booknoise: Lois's experience reminds you that the actual members of civil rights class actions rarely benefit personally. In fact, they pay a high personal price.

Laura: Yes, on a personal level it may not seem worth it, but on a societal level its actually a very efficient way of achieving social change. Civil rights class action litigation is peaceful, it is deliberate, because all common law is based on precedent, it builds on the past rather than rejecting it outright. It links our future to our past in a cohesive but progressive way, unlike say, revolution or political coups do. It can be expensive, but not compared to other methods of social change--boycotts, violence, war. So, in light of the alternatives, class-action litigation can be an extremely effective method of achieving social change.

Booknoise: Legally, what did the case change?

Laura: Jenson v. Eveleth set many important precedents. Federal District Judge Richard Kyle's opinion in 1993 establishing the liability of Eveleth Mines for maintaining a hostile work environment sent a clear signal to employers that they could no longer look the other way when their employees were being sexually harassed.

The Eighth Circuit Court of Appeal's influential 1997 opinion is routinely cited by courts, lawyers and legal commentators as precedent for limiting abusive discovery in sexual harassment cases, and provides important guidance regarding who has the burden of proving that a hostile work environment was a cause of a plaintiff's mental anguish or emotional distress. Collectively, these decisions make both the workplace and the courtroom safer for victims of sexual harassment.

But the most important precedent established by Jenson v. Eveleth was also the first: Judge Rosenbaum's 1991 decision certifying the case as a class action. That decision elevated sexual harassment from an individual complaint by one, usually powerless person against another, more powerful one--a complaint that could easily be ignored or swept under the rug--to a significant civil rights issue. By putting the principles of collective bargaining to work in the context of the courtroom, it gave formerly voiceless working women a megaphone with which to demand change, and the leverage with which to achieve it.

It now seems inevitable that sooner or later, a sexual-harassment suit would eventually be certified as a class action; that employers would have to start taking the civil rights of working women seriously; that companies would have to pay a significant price for failing to do so. But in 1988, when Lois Jenson and Pat Kosmach first walked into the lawyer Paul Sprenger's office in Minneapolis, it was anything but. With Lois and Pat's determination and courage, and Paul Sprenger's vision and commitment, they turned the unheard-of into the ordinary, and by so doing, improved the daily lives of millions of working women.

Booknoise: What is it about the Iron Range that made the sexual harassment there so extreme? When you read the book, you get this image of a dark, almost primeval place.

Clara: The culture is extremely macho, with an emphasis on drinking, hunting, fishing, and hockey. The culture and the economy are both male-dominated. As long as women's economic opportunities were limited, they had few alternatives. When the mines were forced to hire women in union laborer jobs in the mid-1970s, it not only threatened some men's sense of economic security, but it also changed the social structure of the community because it challenged basic assumptions about the role of men and women.

Booknoise: Did this kind/level of harassment happen elsewhere? Was the harassment in the Mitsubishi case similar?

Laura: The kind of harassment experienced by Mitsubishi employees, and by the female employees at the Dial soap factory who are currently suing their company, was similar--but maybe not quite as extreme--as what happened to the women at Eveleth. At Mitsubishi, for example, women complained of being groped and fondled by their male co-workers, and they were on the receiving end of obscene remarks and sexualized graffiti. The women at Eveleth experienced these same things and much more. At Eveleth, one woman's clothes were ejaculated on in her locker. Another woman was not permitted to use a bathroom at her work site, and contracted severe kidney infections. Others were stalked at home, and threatened with rape.

But what was also different about the Mitsubishi case--that was the largest sexual harassment class action case ever--was not so much what happened in the workplace, but how the company reacted, and what the plaintiffs had to go through to vindicate their right to work in safety and with dignity. In the Mitsubishi case, the EEOC brought a class action case on behalf of at least 350 women. The initial claim was filed in 1996. It was settled by consent decree only two years later, for $34 million. By contrast, Jenson v. Eveleth Mines lasted 15 years, and involved in three separate trials and an appeal.

Booknoise: Do you think that what happened to Lois Jenson could happen today?

Laura: This case did not put an end to sexual harassment. But Lois's experience in combatting the environment at Eveleth Mines is unlikely to be repeated, for several reasons. First, in response to Jenson v. Eveleth and subsequent cases like it, most large companies in this country have adopted some form of a sexual harassment policy, and put complaint procedures into place. Second, the legal precedents established by Jenson have made litigating sexual harassment claims much safer for plaintiffs, particularly by limiting some of the most abusive discovery practices.

Booknoise: Is harassment of the kind experienced at Eveleth Mines less likely to happen in, say, a law office or a Wall Street firm?

Clara: Well, it's hard to say that white-collar workers behave better or than blue-collar workers--there have been egregious incidents of harassment in both settings. But white collar workers have more alternatives in terms of other places to work, have more economic power, higher education levels, and are more likely to be informed about their rights.

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