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  •   Court Makes Harassment Suits Easier

    Beth Ann Faragher
    Plaintiff Beth Ann Faragher
    (AP Photo)


    Setting New Rules

    In four major cases this term, the high court redefined the laws on sexual harassment in the workplace:
  • Quid Pro Quo
  • Hostile Environment
  • Liability
  • Same-Sex Harassment

  • By Richard Carelli
    Associated Press Writer
    Friday, June 26, 1998; 9:46 p.m. EDT

    WASHINGTON (AP) -- The Supreme Court issued a landmark sexual harassment ruling Friday, putting employers on notice that they can be held responsible for supervisors' misconduct even if they knew nothing about it.

    The court closed out its 1997-98 term in dramatic fashion, issuing a pair of 7-2 decisions that make companies easier targets for sexual-harassment lawsuits.

    Together, the two rulings spell out the court's most clearly defined guidelines for when businesses can be held accountable for on-the-job harassment. The decisions came just four days after a ruling that made it far more difficult for students who are sexually harassed or abused by teachers to hold school districts financially responsible.

    Friday's decisions said employers always bear such responsibility when a supervisor's harassment results in some tangible professional injury such as a firing, a demotion or an undesirable reassignment.

    Under the new ruling, if a harassed employee has not suffered such a tangible injury, the employer may try to limit or avoid liability by proving two things:

    --It ``exercised reasonable care to prevent and correct promptly any sexually harassing behavior.''

    --And the complaining employee ``unreasonably failed to take advantage of any preventive or corrective opportunities provided ... or to avoid harm otherwise.''

    Past rulings had allowed harassed employees to collect from supervisors or even co-workers who harass them, but had been murky on the liability of the employer business.

    The decisions are unlikely to help Paula Jones' effort to revive her sexual-harassment lawsuit against President Clinton. The federal trial judge who dismissed her case ruled Mrs. Jones did not show Clinton ever made a clear threat of retaliation or that the alleged harassment was so pervasive that it created a hostile environment for her.

    Marcia Greenberger, of the National Women's Law Center, said the rulings were ``an important step for combating sexual harassment, providing important incentives to employers to make sure it never surfaces.''

    And Kathy Rodgers of the NOW Legal Defense Fund, said, ``They place the burden on employers to eliminate sexual harassment.''

    The U.S. Chamber of Commerce's Steve Bokat, representing businesses, said the nation's employers ``can live with'' the rulings. ``The court ... set a clear, bright line on when an employer is liable and when it is not,'' he said.

    Friday's rulings did not focus on defining what constitutes harassment -- that issue has been handled in several previous decisions dating back to 1986. ``Common sense and appropriate sensitivity to social context will enable courts and juries to distinguish,'' the court said last March.

    Justices Anthony M. Kennedy and David H. Souter wrote the two decisions, which originated in Chicago and Boca Raton, Fla.

    Justices Clarence Thomas and Antonin Scalia were the only dissenters from the two rulings.

    The court also ruled that sex-harassment laws no longer will rely so heavily on the differences between ``hostile-environment'' cases that can involve supervisors or co-workers and ``quid-pro-quo'' cases, which always involve supervisors and are most vividly illustrated by the boss who says, ``Sleep with me or else.''

    The court said in the Chicago case that such a threat, even if it proves to be an empty one, can be a hostile-environment violation of a federal anti-discrimination law and can leave an unknowing employer liable.

    The rulings revived a former lifeguard's lawsuit against Boca Raton, Fla., and kept alive an Illinois woman's lawsuit against her former Chicago-based employer.

    In the Chicago case, Kimberly Ellerth sued Burlington Industries over the alleged sexual misconduct of her boss's boss.

    Ellerth was a merchandising assistant in Burlington's mattress-fabric division from March 1993 to May 1994, when she resigned. Her lawsuit said she quit because she was harassed by Theodore Slowik, a New York-based vice president of sales and marketing in her division.

    Slowik supervised Ellerth's supervisor, but in the course of business Slowik dealt with her on a regular basis.

    Ellerth, now a homemaker in Belvidere, Ill., accused Slowik of touching her inappropriately, telling offensive jokes and making sexual innuendoes. She said he once told her, ``You know, Kim, I could make your life very hard or very easy at Burlington.''

    In the Florida case, Beth Ann Faragher intermittently worked as an ocean lifeguard for the city of Boca Raton, Fla., from 1985 to 1990 to help pay her way through college.

    In 1992, while pursuing a law degree, Faragher sued the city and two lifeguard supervisors she accused of unwanted touching and making offensive comments and gestures. Faragher, now a public defender in Denver, alleged that one of the men patted her thigh, slapped her on the rear and otherwise repeatedly touched her.

    Faragher won $10,000 in damages from the two supervisors but lower courts ruled she could not collect from the city because no one further up the supervisory chain knew about the harassment.

    The Supreme Court reversed the lower court decisions and even ruled that Boca Raton failed to rebut the allegations of its liability. Thus, apparently all that remains to be determined in the case is how much money Faragher can collect from the city.

    Studies indicate that at least 40 percent -- and perhaps as many as 90 percent -- of all working women have experienced sexual harassment during their careers.

    The number of sexual-harassment complaints received by the federal Equal Employment Opportunity Commission climbed to 15,889 last year, but the number reportedly has decreased so far this year.

    © Copyright 1998 The Associated Press

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