Odds stacked against victims of sexual harassment in Georgia

“I’ve already been victimized,” Favors said. “For them to just do what they did, it hurts. I’m angry.”

» RELATED: In #MeToo era, state employees wonder, 'what about me'

» MORE: State's weak response to sexual harassment makes reporting risky

A few days after her firing, a tweet by actress Alyssa Milano in October 2017 launched the #MeToo movement on a national scale, bringing about a reckoning on sexual abuse and toppling the careers of a succession of powerful men and celebrities. But almost two years later, the movement still has limitations when it comes to rank-and-file workers such as Favors, who toil in anonymity in the trenches of the workforce, a review of cases by The Atlanta Journal-Constitution found.

In Georgia, in large part that's because victims often have little recourse for saving their jobs, should private employers buck the lessons of #MeToo and turn against workers for speaking out.

No state law here specifically prohibits sexual harassment, as laws do in California, New York and Michigan.

Many victims can turn to the federal Equal Employment Opportunity Commission, because sexual harassment is a form of sex discrimination that violates Title VII of the federal Civil Rights Act. Last year, Georgia residents filed 457 sexual harassment claims, the fourth highest in the nation. Only Texas, Florida and Illinois surpassed Georgia’s numbers.

But the EEOC rarely files suit itself on behalf of victims, typically doing so only in the most egregious or high-impact cases, or when victims don’t have access to legal assistance.

Instead, it may authorize victims to file their own lawsuits in federal court, and in the court circuit that includes Georgia, plaintiffs face long odds. That's because federal judges, following precedents set by the 11th U.S. Circuit Court of Appeals, dismiss all but a few cases before they ever reach a courtroom, studies of the legal system have shown.

“There’s always this battle between the 11th circuit and the 5th circuit (Texas, Louisiana and Mississippi), and they switch as being recognized as the most pro-employer or most anti-employee,” said Cathy Ventrell-Monsees, senior attorney adviser to EEOC Commissioner Victoria Lipnic. “I believe at the moment the 11th Circuit is in the lead as the most pro-employer.”

The bar has become so high for proving harassment, said Laura Beth Nielsen, director of the Center for Legal Studies at Northwestern University, that easing the standards would take an act of Congress at this point.

"So as long as it's pretty easy for the employer to win, they don't have a lot of incentive to really take this issue very seriously," said Nielsen, co-author of Rights on Trial: How Workplace Discrimination Law Perpetuates Inequality. "These high bars actually do, I think, have a big recursive effect back into the workplace."

A litany of lawsuits filed in Georgia courts over the past year contain allegations of vulnerable workers losing their livelihoods because of unchecked sexual abuse:

A produce worker at a Decatur grocery accused her manager of relentlessly bullying her, showing her pornographic pictures, making lewd comments and repeatedly pushing his groin into her buttocks. After he grabbed her backside for the third time, she threatened to call police, so he struck her arm. He later pleaded guilty to sexual battery, but the store paid his criminal fines and put him right back in a supervisory role.

A truck driver for a transport company in Lawrenceville claims she was stalked for months by an infatuated fellow driver, even though he was married. He demanded hugs, left notes and candy in her cab, and used his rig to block her in so she couldn’t leave the terminal when he wanted to see her. When she complained to a manager, he put his hands over his ears and said he didn’t want to hear it.

A diner worker in Columbus said the owner’s brother hounded her throughout her shifts, incessantly touching her buttocks, back and shoulders. She complained up the supervisory chain, then the owner suspended her on suspicion of using drugs. She offered to take a drug test, but the owner fired her.

All three lawsuits are still pending.

"It's common," Atlanta employment attorney Amanda Farahany said. "A woman comes forward, and it turns out that her life is the one that gets changed. She gets retaliated against. She's the one that has to deal with the repercussions."

The gantlet of technicalities

Ginny Nye says she didn’t even have to experience sexual harassment firsthand to have her career destroyed by it. She alleged in a federal lawsuit last year that when Alloy Wheel Repair in Norcross fired her from a vice president’s position for being “no longer a good fit,” it was really because she had reported CEO Rob Wheeley’s sexual misconduct with one of her subordinates.

Contacted by the AJC, Wheeley referred questions to his attorney, who also represents the company. The lawyer declined to comment other than to say Wheeley “denies any allegations of wrongdoing.”

Nye’s lawsuit has already faltered. Magistrate Judge John Larkins III reviewed her complaint and, in a process that doesn’t involve hearing any evidence, recommended dismissing the crux of her claims.

It happened as part of a legal gantlet that other types of federal complaints don’t face. The courts channel employment discrimination lawsuits through magistrate judges, who oversee pretrial evidence-gathering and the inevitable motions to dismiss by the accused. The magistrates issue recommendations to presiding district court judges, who typically adopt them.

Cases that seem strong on paper can be gutted or killed on technicalities. In an important precedent set in 1986, the U.S. Supreme Court said a person's behavior, to qualify legally as sexual harassment, must be "severe or pervasive." That's a standard that has led judges to issue incredible rulings about whether a harasser groped in the right way, enough times, or enough times in close proximity.

Some say the process prevents overburdened federal courts from being clogged with frivolous lawsuits by disgruntled employees. Some legal experts have surmised that the busier a federal court, the more hostile it will be to employment discrimination claims.

The process makes getting a trial in federal court nearly impossible, and the 11th Circuit, which also includes Alabama and Florida, is known for being particularly hard on plaintiffs.

A study by the Atlanta law firm Barrett and Farahany, looking specifically at the Atlanta-based Northern District of Georgia, examined 226 employment cases from 2011 and 2012 where defendants asked judges to dismiss charges. Only 5 percent of them survived without being partially or totally thrown out. (More than 80 percent were dismissed in full, compared to the roughly 70 percent of Title VII claims that get dismissed before trial nationwide, according to other legal studies.)

“If they’re very much more pro-business, much more conservative, then even their interpretations of the federal law make it harder for someone who files a discrimination or harassment lawsuit to win,” Ventrell-Monsees of the EEOC said. “If you’re in a place like California, where the law is much more protective of employee rights than the federal law, and the state courts are as well, I would expect their summary judgment rates to be lower.”

How a case gets gutted

During her seven years with Alloy Wheel Repair, Nye had been a driven sales executive. She put in up to 60 hours per week, managing multiple divisions and national accounts. She said she also ignored a culture where her boss took male subordinates to strip clubs and men engaged in vulgar shouting matching with impunity.

Then in the summer of 2016, when Nye told a saleswoman that she needed to come to Atlanta for a meeting, the woman broke down crying. She said she’d been trying to end an affair with Wheeley, but he kept pressuring her into trysts every time she came to Atlanta. The woman said she felt coerced, trapped, and feared losing her job.

“I was like, oh God,” Nye said. “I immediately had a sick feeling in my stomach because, as a human being, I immediately thought, this is not going to be good for me.”

Nye eventually reported the allegation to human resources. Nothing happened to the CEO, but, according to her lawsuit, Wheeley soon gave her title and her most lucrative accounts to a man who’d been with the company just six months. Months later, when Nye complained that she was still doing most of the work for the man who took her title, Wheeley instructed her to apologize in writing, her suit contends.

» RELATED: She said she'd been sexually harassed. Then she got fired for it.

» MORE: Women working in Georgia prisons endure harassment — by male guards

Still, she said she didn’t see the hammer coming. Just days before her termination, she closed deals with two warranty companies worth $5 million.

“I can’t even tell you how much it affected me, emotionally, to think that anybody would fire me, because I did such a great job,” Nye said.

If Judge Larkins’ recommendations are followed, her firing won’t be among her civil rights claims. Citing case law, the magistrate said she didn’t mention improper termination in her EEOC forms, just retaliation, so she can’t sue for that now.

Larkins also said she can’t pursue claims for losing her title and sales accounts, because those events happened more than six months before her EEOC complaint. The judge also proposed tossing her case against Alloy Wheel’s parent company, saying her complaint doesn’t demonstrate it had anything to do with what allegedly happened to her.

That essentially leaves her with a hostile work environment lawsuit. Nye’s attorney, Lester Tate, said “the guts of the case” have been litigated already without ever starting the discovery process that might turn up new evidence.

“You have a class of civil litigants that are treated differently from civil litigants in every other type of case,” Tate said.

From a company standpoint, though, those legal obstacles help protect the innocent from unsubstantiated claims or accusations that don't meet the legal definition of sexual harassment. Johnny Taylor Jr., president and CEO of the Society for Human Resource Management, pointed to statistics showing that of the allegations received by the EEOC last year, the agency found evidence lacking in 56 percent of them.

“That’s why we say, you are innocent until proven guilty,” Taylor said. “The allegations are made, and most of the time, we deal with them internally. And we deal with it swiftly … We do a lot of things that don’t make it to the EEOC.”

Harassed out of a job

Alleged victims interviewed by the AJC described supervisors treating them as guilty just for speaking up about abuse.

Lisa Chinault has alleged in a federal lawsuit that while she worked as a medical assistant at the Skin Cancer and Cosmetic Dermatology Center office in Calhoun, a co-worker, Ashley Manning, touched her buttocks and breasts almost every day. Chinault said she would protest, but other employees would just watch and laugh. She said she complained to the office manager, who said she’d “look into it.”

The AJC tried to talk to Manning, but messages were returned by the attorney who is defending her, the office manager and the clinic. The attorney said in an email that “because of the pending litigation, we can only respond that we deny the allegations set forth in the suit and will make no further comments.”

The company has responded in a court filing that Manning didn’t touch her co-worker inappropriately or make derogatory comments toward her, and that Chinault only complained after being fired for poor performance and violating company policy.

Chinault said that one time, as she sat at the nurses station working on her iPad, Manning reached under her arm and touched her breast, then did it again in full view of the office manager. At the close of the following day, that manager called Chinault into her office and fired her for “not being a good fit,” the lawsuit alleges.

“There was no reason for me have lost my job, when I was not verbally disciplined, written up for any poor performance, or not doing anything,” Chinault said.

Until 2017, Tamiko Favors made her living working for Grady Health Services contractor Clarus Linen Systems at Crestview Health and Rehabilitation Center. The man who attacked her in the basement, Mario Gartrell, worked for another contractor, Aramark Uniform & Career Apparel.

According to Atlanta police records, Aramark had transferred Gartrell to Crestview months earlier after a woman at Grady Hospital accused him of grabbing her in an elevator and trying to force his hand down her pants.

Favors’ lawsuit says he came across her while emptying trash on the floor where she was working. He grabbed her in an elevator, pulling down her pants and asking her for anal sex.

She fled when the doors opened, but Gartrell found her again in a basement linen room. He pulled her behind a linen cart and again tried to pull her pants off. According to her lawsuit, he pushed his exposed penis into her back and put his hand in her pants and groped her. She struggled until she broke free and ran.

The next day, Favors told supervisors at her company and at Aramark, and she gave a statement to an Atlanta police detective. Gartrell stayed put at Crestview while Favors’ company moved her to Grady hospital, the lawsuit says. Grady was farther from her home, and her shift started earlier, which meant her 12-year-old daughter had to wake up at 3 a.m. to be dropped off at her aunt’s house before school. Favors also had to pay to park.

The job quickly soured for her. Her new manager at Grady criticized her work performance when she had trouble operating different machines, the suit says, and told her she had an attitude problem. For the first time in her career with the company, she was given write-ups — for taking too long of a lunch break and borrowing a man’s parking pass.

“I just felt like I wanted to give up,” Favors said. “But I kept thinking about, I gotta survive, I gotta live.”

Favors said she asked repeatedly to be sent back to Crestview, but then her company fired her before even completing its investigation into the sexual assault.

Neither company responded to requests for interviews made through their attorneys.

Favors’ lawsuit against Aramark was settled, but terms were confidential. Clarus filed for bankruptcy.

Gartrell was later arrested for the attacks on Favors and on the woman he assaulted when he worked at Grady. In June he took a plea deal for 15 years in prison for aggravated sexual battery, kidnapping and other charges involving both victims.

OUR REPORTING

For private employees who endure sexual harassment and retaliation, no stroke of the pen can bring about rapid reforms, as Gov. Brian Kemp did for tens of thousands of state employees under his authority when he enacted a tough new harassment policy this year. That change came about after The Atlanta Journal-Constitution examined working conditions for state government employees, uncovering toxic work cultures across multiple departments, with random approaches to how sexual harassment was investigated and wide variations in discipline for similar offenses. With other states taking steps to centralize how they handle harassment claims, Kemp ordered the State Inspector General to serve as an auditor and clearinghouse for executive departments across the state.

Complaints have poured in at a rate of about one per day ever since.