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  •   Supreme Court May Clarify Grounds for Sexual Harassment Suits

    By Joan Biskupic
    Washington Post Staff Writer
    Saturday, January 24, 1998; Page A04

    The Supreme Court said yesterday it will decide whether a woman who was subjected to unwanted sexual advances by her boss, but did not submit and did not then lose her job, can sue for illegal sexual harassment.

    At issue are so-called quid pro quo sexual harassment lawsuits in which a worker claims she was threatened with job loss or other retaliation if she spurned advances.

    The case from Chicago – Burlington Industries v. Ellerth – marks the fourth sexual harassment dispute pending before the justices this term. The unusually high number of cases on this sensational but difficult subject are occurring as sexual harassment lawsuits continue to rise nationally and as the issue of sex in the workplace has burst to the forefront with allegations against President Clinton involving former White House intern Monica Lewinsky and continuing developments in the Paula Jones lawsuit.

    The other cases already before the high court and likely to be decided by the end of June will answer whether a person can sue for illegal sex discrimination if he was victimized by someone of the same sex; in what cases employers may be held legally responsible for the misconduct of supervisors; and whether a school district is responsible for a teacher who seduces a student.

    Separately yesterday, the justices announced they would decide whether a federal law protecting disabled persons from bias applies to inmates in state prisons. The case was brought by a Pennsylvania prisoner who was kept out of a motivational boot camp because of a history of hypertension. A federal district court dismissed his case, but an appeals court reinstated it, saying Congress intended the Americans with Disabilities Act to broadly cover services and programs, including prisons. Other lower courts have ruled the opposite. More than half the states and the District of Columbia urged the justices to review the controversy in Pennsylvania v. Yeskey.

    In another development yesterday, the justices did not act on a closely watched dispute over federal regulations intended to open the nation's $100 billion local-telephone market to greater competition. The federal government and long-distance companies have appealed a lower court decision that struck down Federal Communications Commission guidelines for the prices new competitors such as AT&T and MCI must pay to connect to local networks.

    The Justice Department and long-distance companies have asked the court to hear the case. While yesterday's silence is difficult to read, time is running out for the justices to add another new case to their calendar under the court's usual procedures.

    The 1964 Civil Rights Act protects workers from sex discrimination, including harassment, on the job. The new case was brought by Kimberly B. Ellerth, a merchandising assistant in Burlington Industries's mattress-fabric division from March 1993 to May 1994. She claimed she was sexually harassed by Theodore Slowik, a New York-based vice president for one of Burlington's divisions whom she dealt with regularly. Ellerth said Slowik told offensive jokes, touched her inappropriately, commented on her physical features and made sexual innuendos to her over the telephone.

    She alleged he said, "You know, Kim, I could make your life very hard or very easy at Burlington," and "Are you wearing shorter skirts yet, Kim, because it would make your job a whole lot easier." Ellerth construed these as implying that she would have to engage in sexual relations with Slowik to succeed in the business. But she did not submit, did not lose her job and was, in fact, promoted.

    A trial court threw out her harassment complaint, but the U.S. Court of Appeals for the 7th Circuit reversed, saying the case could go forward.

    In a key part of its decision now before the Supreme Court, the appeals court said a person could allege that she was subjected to quid pro quo sexual harassment even if a supervisor's threat did not result in some adverse employment consequence. Such "quid pro quo" harassment involves situations in which requests for sexual favors are linked to job conditions.

    As Burlington noted in its appeal to the high court, the 7th Circuit was the first to hold that a quid pro quo claim can be brought in the absence of tangible effect on employment. James J. Casey, the company's lawyer, said yesterday it is important that the court clarify the rules for businesses.

    Elena M. Dimopoulos, one of Ellerth's lawyers, said the court should recognize that someone who does not submit to sexual overtures and does not suffer economic loss nonetheless can suffer psychologically from the threat of punishment.

    The court will hear the case in April, and a ruling is likely by late June.

    © Copyright 1998 The Washington Post Company

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