The perfect victim: Exploitation and threat of deportation

A retail custodian sexually assaulted by her boss fights back despite her immigration status

Because of this, sex crimes are uniquely hard to prosecute. In 2008, the same year that the county attorney declined to prosecute Zuniga's case, 159 criminal sexual conduct charges with an adult victim were referred to its office for prosecution. Of those, the office moved forward with 65 cases, or just 40 percent. For comparison, the rate for murder that year was 81 percent.

Zuniga's lawyers, Stratton and Gaulding, say that with rape cases, the amount of time it often takes victims to come forward not only makes it hard to prosecute criminally, but also plays into the public imagination.

"Studies show that there's a phenomenon where the lay public's perception is, 'Well, if that was happening to me, I would immediately report it,'" says Gaulding. "But if you're actually in that circumstance, it's not true. This is a rape myth that's out there, and it's part of what allows sexual harassment to continue."

Zuniga still wanted to take action, and her U visa application had been approved, which meant that it was possible for her to move forward in the legal system. So instead of criminal court, she took another route: On August 11, 2009, she filed a lawsuit against both Gonzalez and SMS.

On one side of the dispute was Zuniga and her two lawyers, Stratton and Gaulding, who together run the nonprofit legal advocacy organization Gender Justice out of St. Paul. On the other was SMS and Gonzalez, both represented by fleets of employment lawyers from three large corporate firms.

Over the next four years, the two sides pulled out all the stops, producing a contentious legal paper trail nearly 700 documents long.

SMS argued that, "irrespective of the heinous nature of [Zuniga's] allegations," she didn't have a case: "She failed to complain or otherwise inform anyone of the alleged assaults or any untoward behavior by Marco Gonzalez during her employment at SMS."

The argument is based on a U.S. Supreme Court ruling that incentivizes employers to take steps that minimize the risks of sexual harassment. If the employer can prove that it has policies and practices in place to "prevent and correct" harassment, and that the employee "unreasonably" failed to use those policies, then the employer's off the hook for any liability.

But Zuniga countered that taking advantage of SMS's policy was impossible. SMS might have had the bare bones of a sexual harassment policy, but the company didn't create a practice that allowed employees to actually use it. While there was a section on sexual harassment in the employee handbook, that section didn't explain how employees could or should report abuses — or include a measure to protect employees who did find a way to alert the company.

While SMS did have a flyer with the company's human resources hotline, it was up to the facility manager at each site to post it. At least one photo of the offices at Ridgedale suggests that Gonzalez never did so.

As far as the term "sexual harassment" itself, Zuniga had never heard it. There was no harassment training for employees, and even for managers like Gonzalez, it was optional. No record shows that he ever received any.

Zuniga still did manage to alert the company of her complaint, but then, she argued, SMS also botched the correction arm of the defense. It failed to conduct an unbiased investiation and to take remedial action against Gonzalez.

Gaulding and Stratton called in Louise Fitzgerald, a psychology professor at the University of Illinois and one of the pioneers in sexual harassment studies, to see how SMS's policy stacked up to industry best practices.

"The SMS preventive and supposedly remedial programs for sexual harassment are seriously inadequate or worse," Fitzgerald wrote in her 21-page expert report. She went on to chastise the company for its "failure to investigate" and for creating a situation in which "it was highly risky" for employees to complain. She also notes that Gonzalez was the only line of communication that Zuniga knew of between herself and SMS.

Steve Befort, of the U of M, agrees that even if there is a policy in place, there can be factors that make it difficult for victims to follow it.

"Sometimes, depending on who is doing the harassing," he explains, "it's difficult for the victim of harassment to go to that person or that person's buddy and complain."

As Stratton and Gaulding built Zuniga's case, they also discovered that she wasn't alone. In addition to Perez, who alleged physical sexual assault, another of Gonzalez's former employees, Claudia Medina, said that Gonzalez had repeatedly made sexual comments toward her, including following her into the bathroom and asking about her sexual preferences.

Beyond Ridgedale, the lawyers looked up all of the sexual harassment complaints that had been filed with SMS from around the country in the three-year period from 2005 to 2007. They found 114 cases — and those were just the instances that had made it to SMS's HR and been logged.

About a third of those complaints were filed against the complainant's boss. Many of the complaints were never adjudicated or even investigated by the company.

The lawyers' investigation also turned up new information, like the internet history on Gonzalez's office computer. They found that the computer had been used to browse violent porn sites like Gonzalez's computer was in his locked office, to which only he had keys, and he was the only SMS employee at Ridgedale Center whose job included computer use.

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