Dial Sex Harassment Trial Set to Get Underway

>Senior US District Judge Warren Urbom turned away Dial’s request to reconsider his February 2003 order that the Chicago federal court jury would decide on punitive damages for all plaintiffs in the class action suit, the US Equal Employment Opportunity Commission (EEOC) said in a statement (See  One Jury to Decide Dial Punitives). The EEOC has described the case scheduled to come to trial Monday as its largest sexual harassment suit since the $34-million, 1998 settlement between 486 current and former female employees of the Mitsubishi Motor Manufacturing of America and the company.

In the current suit filed May 1999, the EEOC alleges a pattern or practice of sexual harassment of female employees at Dial’s facility in suburban Aurora, Illinois. The Aurora plant is the United States facility for manufacturing bar soaps bearing the company’s flagship “Dial” brand, and other brands including “Coast,” “Tone,” and “Pure & Natural.”

>Urbom described EEOC’s allegations against Dial in an August 2001 pre-trial order:

“Taking the EEOC’s version of the facts as true, it appears that the work environment at Dial was sexually charged in a way that was offensive and demeaning to women. Several women testified that they were subjected to physically-invasive behavior by male employees. This alleged behavior ranged in severity from men touching women’s breasts and buttocks to an incident where a male co-worker grabbed a class member by the crotch and jerked upward. In addition, male employees allegedly exposed themselves to their female co-workers or touched their genitals while making suggestive or threatening remarks. Dozens of women also indicated that they were the targets of repeated comments and conduct of a sexual nature. Finally, many women testified as to open displays of sexually offensive materials in the workplace, including pornographic magazines, pornographic calendars, pictures of nude women, pictures of scantily-clad women, and sexual cartoons.”

>Urbom continued: “I have already concluded that the EEOC has presented sufficient evidence for a reasonable jury to find that Dial either knew or should have known of a plant-wide sexual harassment problem. I have also determined that there is little, if any, evidence demonstrating that Dial took steps to determine whether individual incidents, which occurred frequently and continuously, were indicative of a larger problem requiring a company-wide response. In light of these conclusions, I am not persuaded that Dial’s efforts to prevent harassment on a plant-wide basis were reasonable as a matter of law.”

>In the order clearing the way for the start of Monday’s proceedings, Urbom laid out how he would structure the trial and the jury’s consideration of damage awards. The schedule will include:

• “Phase I should result in a finding by the jury of whether and when a pattern or practice of tolerating sexual harassment existed.
• “Phase II, (if Phase I ends in the EEOC’s favor), would end with a verdict of whether the pattern or practice was done with malice or reckless indifference to the federally protected rights of class members, including an amount to be awarded to the aggrieved persons of the class.
• “In Phase II the remaining question for this jury is to determine what amount, if any, is needed for purposes of punishment and deterrence of [Dial] and others.”

>Urbom said that additional juries in later separate “Phase III” proceedings may also make individualized findings as to both compensatory and punitive damages and “this means there may be jury findings of amounts of punitive damages in both Phase II and Phase III [and that] Phase IV may consist of the judge’s deciding what distribution should be made of punitive damages guided by both the verdicts in Phase II and Phase III.”