Ms. SWANSON. I'm sorry? What would I advise somebody going through this?

Senator SIMON. Going through, No. 1, should you quit the job no matter what the family situation is? That is always easy to say, but as you were saying, you were the sole support of the family. No. 2, do you go through the legal problems?

Ms. SWANSON. Yes, I think you have to go through the legal problems. I couldn't just let it lie. Yes, it was difficult to go into court, and they tried to put me down on the stand. The cross examination was no picnic, I'll tell you. But I think you have to. You have to do something, because it's like being raped and saying, "Well, I don't want to go through that. I am not going to report it. You have to. You have to at least take that chance that you can stop this person from doing it to somebody else.

Senator SIMON. And stop others.

Ms. SWANSON. And stop others.

Senator SIMON. Right.

Ms. SWANSON. Maybe scaring the others enough to realize that they can't do these things.

Senator SIMON. Ms. Swanson, we thank you very, very much for a powerful statement and for your courage.

Ms. SWANSON. Thank you.

Senator SIMON. We appreciate it.

Our fourth panel consists of some attorneys who will be advising us on the legislation: David Maddux from Los Angeles; Larry Lorber from Washington, DC; Judith Lichtman, who has testified before here, from Washington, DC, with the Women's Legal Defense Fund; and Marcia Greenberger, with the National Women's Law Center.

I understand there was to be a fifth witness on this panel, Ms. Nancy Kreiter of Women Employed in Chicago. She is ill, and her statement will be entered in the record.

[The prepared statement of Ms. Kreiter follows:]

PREPARED STATEMENT OF NANCY KREITER, RESEARCH DIRECTOR, THE WOMEN

EMPLOYED INSTITUTE

Chairman Kennedy and members of the Committee, I am Nancy Kreiter, Research Director of the Women Employed Institute, a national organization which conducts research, education, and advocacy programs designed to improve women's economic status. We are affiliated with Women Employed, a 16-year-old membership association of women at all employment levels.

We appreciate the opportunity to appear before you to testify in support of the Civil Rights Act of 1990. We believe that passage of this legislation is critically important in the continuing fight for a discrimination-free work environment for all employees. In addition to restoring the statutory civil rights protections which were weakened by decisions issued during the U.S. Supreme Court's last term, the Civil Rights Act of 1990 also strengthens existing protections available under civil rights laws.

This testimony will specifically address Section 8 of the Civil Rights Act of 1990, "Providing Damages in Cases of Intentional Discrimination."

Over the past 16 years, Women Employed has advised and assisted thousands of women with employment discrimination problems. Each month we counsel approximately 100 women on issues including sexual harassment, pregnancy discrimination, wage discrimination, disparate treatment in hiring and promotion practices. At the policy level, we have monitored the enforcement of title VII by the Equal Employment Opportunity Commission and have shared the resulted of our monitoring efforts with Congressional committees on numerous occasions. We have first-hand knowledge of not only the central role title VII plays in protecting women's employ

ment rights, but also the ways in which title VII must be strengthened if it is to provide meaningful remedies for victims and deter employers from intentional discrimination.

The remedies currently available under title VII include reinstatement to a job if an employee was discriminatorily not hired, not promoted, or fired; injunctive relief prohibition further discriminatory behavior; and/or up to two years of back pay. In far too many instances, these "make whole" remedies do not adequately compensate victims of discrimination. Our experience in counseling victims of discrimination makes it clear that when a woman weighs the possible remedies available to her under title VII against what she knows filing a charge will "cost" her, she often chooses not to file. These costs can include possible retaliation from her employer, including being fired, demoted, or harassed; ostracism by co-workers; being "blacklisted" and never working in a particular field or industry again. Despite the fact that title VII prohibits employers from retaliating against employees who file charges against them, most women know that if an employer discriminated against them in the first place, they will continue to do so.

Of the 1,200 women we counsel each year, we estimate that up to 80 percent choose not to file discrimination charges, primarily because it just does not seem worth it. This means that many victims of discrimination receive no compensation for the injuries they have suffered, and employers can continue to engage in unlawful employment discrimination. The following case stories illustrate how the lack of compensatory and/or punitive damages impacts on the decision not to file discrimination charges.

Alice M. was employed in the housekeeping division of a large hotel. When her male co-workers found out that she was pregnant, she became the target of crude jokes, teasing, and humiliation. She complained to her supervisor who advised her to "lighten up and have a sense of humor." When she began suffering from high blood pressure cased by work-related stress, Alice quit her job. Alice called Women Employed to find out what she could do to stop the company from harassing pregnant women and whether she could get her former employer to compensate her for medical bills incurred because of the harassment. When the Women Employed counselor explained that neither of these remedies were available to her under title VII, she decided not to file a charge.

Cathy T. worked in sales. Her boss began pressuring her to put in overtime, by which he meant going to a bar once a week with the five other male salespeople in her department where they supposedly went to discuss business. This "overtime" resulted in the men harassing Cathy by touching her, making suggestive statements, and calling her derogatory sexual names. Cathy began suffering from severe anxiety and quit her job. Although she found another job within a month, it was in a less lucrative field than sales and had fewer career opportunities. Cathy decided not to file a charge when she learned that she could not be compensated for the cost of therapy or the impact her forced job change had on her earning potential.

Irene S. was the only female real estate agent in her office. While all of the male agents had large offices and secretaries, Irene's office space was a small walled-off cubicle in a conference room and she had no secretarial help. She discussed this unfair treatment with her boss on several occasions, but to no avail. She called Women Employed to discuss filing a discrimination charge under title VII. When she learned that her remedies under title VII would be limited to improving her working conditions to equal those of her male counterparts, she chose not to file. Since she no longer wanted to work for an employer who intentionally discriminated against her, she quite her job and went to another agency.

Diane S. was employed as an outside insurance claims adjustor and had worked for the same company for twelve years, and had an excellent work record. She was pregnant and planning to take a 6-week unpaid disability leave upon the birth of her baby. During her eighth month of pregnancy, her supervisor informed her that the company would not guarantee that a job would be available for her after her disability leave. Diane knew several employees who had gotten their jobs back after taking disability leaves, and that her supervisor had a male friend in line to take her job as soon as she left on leave. After her baby was born, she called a Women Employed counselor to find out how to file a charge against her employer. She was shocked to find out that the most she could hope for was her old job back. She felt that after 12 years of commitment and loyalty to the company, she should be entitled to punitive damages and compensatory damages to make up for lost career opportunities. She decided not to file and put her time and energy into finding another job with a company that did not discriminate against women.

Jane P. was employed as a sales manager at a large pharmaceutical company for 9 years. Upon returning from a vacation, she found that she had been transferred

and replaced by a male friend of her boss. this was the third time that her boss had replaced a woman with a less experienced man, who happened to be a member of his weekend basketball team. Jane's boss assured her that her change in duties had nothing to do with her job performance. Though Jane continued to be paid the same salary, she was performing less interesting, lower level duties and she was clearly off the "fast track" for future promotions. Jane began suffering from stress and severe depression and had to seek psychological counseling. She eventually quit her job and took a position with another pharmaceutical firm at a lower salary. She called the Women Employed counselor to find out if she could use her former company for damage to her career and for compensation for the expense of her counseling. When she found out that the remedies available to her under title VII did not include punitive or compensatory damages, she decided not to file a charge.

For each of these women, and thousands more like them across the country, the limited remedies available under title VII caused them to choose to quit their jobs rather than file discrimination charges. This means that women who have been discriminated against receive no relief. Their employers, on the other hand, go unpunished and can continue to engage in unlawful, discriminatory practices.

Even when women prove that their rights have been violated under title VII, they still do not receive remedies equal to the losses they have suffered as a direct result of discrimination. The following case stories illustrate this point.

Anita R. was a waitress at a restaurant. She was five months pregnant when her boss told her that she had to start working longer shifts, specifically four extra hours per day. She was the only person on the waitstaff who was told to work the extra shifts and had heard from other restaurant personnel that her supervisor did not want a visibly pregnant woman serving the customers. Anita refused to work the extra hours and was fired. She filed a pregnancy discrimination charge with the EEOC and eventually settled for back wages. However, after she was fired she fell behind on her health insurance, and car payments. She is now paying off medical bills for the delivery of her baby and has a "bad credit" rating. Title VII does not allow for recovery of the non-wage-related expenses she incurred because of discrimination.

JoAnn M. worked in the customer service department for a credit card company and had an excellent work record. Her new supervisor began pressuring her to date him, touching her breasts, and leaving pornographic materials on her desk. When she complained about the harassment, she was put on discrimplinary steps and eventually fired. She became severely depressed and was treated for an ulcer. After filing a charge with the EEOC, JoAnn was rehired a full year later and assigned to a different department. However, she was not compensated for the expense for medical treatment and therapy.

Maria R. graduated from a electro-mechanical technology training program and was hired as an in-house copy machine repairer. Joe G. was hired by the same company after graduating from the same training program. However, Joe was hired to repair copy machines "on-site" at the client's office. The on-site job paid better and offered greater career advancement opportunity than the in-house job. Women had never been hired as on-site repairers. Maria discovered this inequity after she had been with the company for 2 years. A Women Employed counselor told her that, under title VII, she was entitled to two years of back pay to make up for the pay differential, and a promotion to the position of on-site repairer. She was not, however, entitled to compensatory damages for the professional contacts and career enhancement she missed out on as an in-house repairer. Maria filed a charge against her employer, was promoted to the on-site repairer position, and receive back pay. However, she felt cheated for the two years that her career was held back.

The lack of adequate remedies under title VII has an enormous impact on women who have been discriminated against, whether they choose to file charges or not. At the same time, employers have little incentive to stop discriminating against women. When victims of discrimination choose not to file against an employer, the employer has lost nothing. When victims of discrimination do file charges, employers know that they stand to lose relatively little even if they are found to have violated the law. Therefore, employers have little incentive to change discriminatory practices, such as those which prevent women from entering male-dominated, higher-paying fields. The following case stories illustrate that the lack of compensatory and punitive damages available to victims of discrimination severely hampers women's ability to be successful in nontraditional fields and contributes to continuing occupational segregation of women.

Paula J. was the only female working in the computer programming department of a large utility company. The atmosphere of her office was extremely hostile toward women. Her co-workers hung photos of nude women on the walls, told dirty

jokes, and subjected Paula to a variety of harassment including leaving condoms on her desk, sexually explicit materials in her files, and using her as the brunt of sexually degrading jokes. Although she complained to her supervisor, he was unsympathetic and told her that to be successful, she had to act like "one of the guys." After discussing her rights with a Women Employed counselor, she decided to look for a job elsewhere. She did not believe that the men in her office would modify their behavior, even if she received injunctive relief to stop the harassment.

Robin s. was he only female groundskeeper at a zoo. She was always given the dirtiest, least interesting assignments and her male co-workers harassed her continually by asking her about her sex life, discussing her body, and telling sexually explicit jokes when she was within hearing. Whenever she complained to her boss, he said he would tell her co-workers to stop and they would, for about 2 weeks. Then the harassment would start again. After discussing her problem with a Women Employed counselor, Robin decided not to file a charge. Since she often worked alone in isolated parts of the zoo, she was afraid of retaliation from her co-workers. Robin is currently looking for a job in a more "traditional" field.

Our experience has shown us that Paul's and Robin's experiences are similar to those of many women who enter nontraditional, higher-paying fields and experience sexual harassment and other forms of discrimination on the job. Because title VII remedies amount to little more than a slap on the wrist to discriminatory employers, they have little incentive to make the male-dominated work settings more hospitable to women.

We believe that the Civil Rights Act of 1990 addresses critical needs in the effort to eliminate employment discrimination. It will provide victims with the remedies they deserve-remedies that are proportionate to the actual harm they have suffered. Without this, the law will simply not be utilized to the extent Congress intended. Further, we must have remedies that will strongly deter the kind of willful discrimination that we too often encounter in counseling working women. Unless the Congress provides for stronger disincentives in the form of punitive and compensatory damages, the worst employers will continue to victimize women despite the law. Strengthening title VII will not affect equal opportunity employers; it will punish the lawbreakers. The Civil Rights Act of 1990 can make a real difference to the women we represent and to our national commitment to end employment discrimination.

Senator SIMON. I am very pleased to have you here.
Mr. Maddux, we will start with you.

STATEMENT OF DAVID MADDUX, ESQUIRE, SHEPARD, MULLIN, RICHTER AND HAMPTON, LOS ANGELES, CA, ON BEHALF OF THE NATIONAL RETAIL FEDERATION; LAWRENCE LORBER, ESQUIRE, KELLEY, DRYE AND WARREN, WASHINGTON, DC, ON BEHALF OF THE NATIONAL ASSOCIATION OF MANUFACTURERS; JUDITH LICHTMAN, ESQUIRE, PRESIDENT, WOMEN'S LEGAL DEFENSE FUND, WASHINGTON, DC, AND MARCIA GREENBERGER, ESQUIRE, MANAGING ATTORNEY, THE NATIONAL WOMEN'S LAW CENTER, WASHINGTON, DC

Mr. MADDUX. Thank you very, very much, Senator. I appreciate the opportunity to be here and address your committee. I am a partner in a law firm in Los Angeles. I have been practicing law since 1959, which was the year that we in California enacted our California Fair Employment Practices Act, which was the first law in California that prohibited discrimination in employment. A substantial portion of my practice since that time has been involved in employment discrimination, matters before our California State agency, before the Equal Employment Opportunity Commission, and in the State and Federal Courts.

I am appearing here on behalf of the National Retail Federation. I am chairman of its subcommittee on wage hour and equal employment opportunity law. Retailing employs approximately one out of every ten persons in our workforce. We, of course, are con

cerned about discrimination in employment, and we are vitally interested in this legislation.

I express the views that I express here based on my years of experience representing retailers, many of whom are members of the National Federation.

I would like to talk briefly about section 5 of the bill which deals with the mixed-motive cases. I would like to talk briefly about section 8 of the bill which deals with the so-called penalty phases.

With respect to section 5, the bill, as has been pointed out by the Senators, has the effect of providing that there is a violation of the act when a complaining party demonstrates that a prohibited practice was the motivating factor of any employment decision even though that decision may have been motivated by other factors.

Although that section provides that if the employer establishes that it would have taken the same action, made the same decision in the absence of any discriminatory motive, that party complaining would not be entitled to reinstatement and back pay. Of course, a violation of the act would still be found and the complaining party would be entitled to receive compensatory damages and punitive damages, compensatory damages, including damages for pain and suffering and emotional distress.

Now, this section appears to have been proposed to reverse the effect of the U.S. Supreme Court decision in the Price Waterhouse v. Hopkins case. And Price Waterhouse, as we know, rejected Ann Hopkins as a candidate for partner because of an impermissible motive, as the Court found, sex, and a permissible motive, for poor interpersonal relationships with others in her firm.

The bill that has been proposed in this section would really change the law of the land as it has existed in mixed-motive cases for many years and would impose liability on employers where in all of the cases that have considered this type of issue before no liability would have been imposed.

This doctrine of mixed-motive cases first had its origin in cases under the National Labor Relations Act which prohibits employers from discharging employees for union activities. And the cases arose in the context of someone who was discharged where there was a showing a person was a union activist and the union activity may have been a motive but there may have been another legitimate reason for the discharge.

The National Labor Relations Board, in the Wright Line case, articulated the doctrine that the employer in those kinds of cases could avoid a violation of the act by proving that the discharge rested upon the employee's unprotected conduct and by proving that the discharge would have happened in any event.

The board based its decision primarily on a decision of the U.S. Supreme Court in Mt. Healthy City Board of Education v. Doyle. That was a 1977 case in which the plaintiff was a school teacher. The school teacher had engaged in some First Amendment activity, exercising his right of free speech. And he had been fired.

The case went up to the U.S. Supreme Court, and the U.S. Supreme Court articulated the doctrine that the trial court had erred by not allowing the school board to show that they would have fired him in any event even had he not engaged in the free speech activity.