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Experts routinely warn companies not to get caught with lax policies, which can enrage juries and inflate settlement costs. Consultants' on-site training is usually straightforward: if what you're thinking even vaguely involves sex, keep it to yourself. Ballard poses hypotheticals such as, What if someone gets the Victoria's Secret catalog at work? "If someone makes a comment about that, you get rid of it," she says. Parallax, her company based in Santa Monica, Calif., teaches that one complaint is enough to change office policy--and such advice is becoming the standard in business schools and financial newspapers. A U.S. Department of Labor brochure on sexual harassment even advises that those who hear "sexual jokes or... sexual things that you didn't like" could be victims. Several states offer equally broad, subjective definitions.
Employers are heeding the advice, sometimes too well. The University of New Hampshire suspended a professor of technical writing, J. Donald Silva, in 1993 for classroom remarks he had made the previous year. Besides other suggestive comments, Silva had compared the focus required for writing to that demanded by sex. He had also said, "Belly dancing is like Jell-O on a plate with a vibrator under the plate." Weird, yes. But harassment? The university thought so and directed Silva to take counseling at his own expense. Instead he filed suit. Backed by the Center for Individual Rights, a conservative Washington-based advocacy group, Silva won. A federal judge ruled that the school had trampled on his First Amendment rights. The university reinstated Silva, who is now 62 and teaching once again.
Some employers have got more than a slap on the hand. In an important case in California, a jury awarded Ralph Cotran $1.78 million in lost compensation four years ago in a wrongful-termination lawsuit against his former employer, insurance brokerage Rollins Hudig Hall International. The company fired Cotran in 1993 after two secretaries alleged sexual harassment. He denied it and claimed that he and the two women had been involved in consensual relationships. "I didn't do it, but the company ignored every shred of evidence on my side," he says today.
The jury agreed with the defendant--as have other juries in a few such backlash cases. The most famous was brought by Jerold Mackenzie, a former Miller Brewing executive, who claimed that the company wrongfully interfered with his employment status after a co-worker, Patricia Best, accused him of sexual harassment. He had recounted for Best an episode of Seinfeld on TV that indirectly referred to the clitoris, and then showed her the word in the dictionary. A jury gave him $26.6 million last summer.
But such cases remain the exception, and few have been upheld on appeal. Part of Mackenzie's giant damage award has already been set aside by a judge. And the California Supreme Court dealt Cotran a setback in January, when it ordered a new trial, which may be harder for him to win. The court said if employers fully investigate and arrive at a "good-faith belief" that harassment occurred, they may fire the alleged harasser.