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  •   Four Supreme Court Cases Address Parameters of Sexual Harassment

    By Joan Biskupic
    Washington Post Staff Writer
    Sunday, February 8, 1998; Page A06

    Kimberly Ellerth was a marketing representative whose boss asked her to wear short skirts, grabbed her knee and said, "You know, Kim, I could make your job very hard or very easy."

    Beth Ann Faragher was a lifeguard whose boss patted her on the rear and talked about her breasts. And Joseph Oncale was an oil rig roustabout whose co-workers cornered him in the company shower.

    With these three cases and one other, the Supreme Court will resolve a record number of disputes this term that focus on the issue of sexual harassment. Since 1986, when the high court first said sexual harassment was discrimination covered by the 1964 Civil Rights Act, the justices have decided only one other case on the subject.

    But the times and the law have changed.

    The new cases could be the start of a trend at the nation's highest court, as more appeals based on the law governing power and sex on the job arrive on its marble doorstep.

    By summer, when they recess, the justices will have decided whether employees who do not succumb to their bosses' advances and suffer no job setback can still sue and win money damages for harassment. Perhaps more importantly for business in America, the justices also will decide exactly when companies are responsible for harassment by their supervisors.

    The rulings are sure to affect employers' policies, how much they watch over their workers and the overall atmosphere on the job. "Perhaps the Supreme Court will bring order to the chaotic case law," wrote the 7th Circuit Court of Appeals when it failed to reach a consensus on parts of Ellerth's case.

    Richard Posner, the influential chief judge of the Chicago-based circuit, described the difficult task of regulating relationships: "Romantic encounters, including romantic encounters between supervisors and supervised, are a fact of the workplace. [Federal law] does not purport to forbid them, and would be quixotic if it did. . . . The words, the gestures, the other behaviors that differentiate the fully consensual relationship from the coercive relationship will often be invisible to the supervisor's supervisors."

    Lawyers in the field say that, for the most part, judges recognize sexual harassment when they see it. And the cases this term do not so much turn on what is sexual harassment, but on when companies are responsible.

    Still, there is some confusion about the fundamentals of illegal harassment, demonstrated in some lower court opinions and by some recent comments on the alleged relationship between Monica S. Lewinsky and President Clinton. Nothing that has been asserted about the former White House intern would suggest that her case involves illegal harassment.

    Sexual conduct becomes unlawful only when it is unwanted. That means workers can successfully sue only when they did not solicit the attention and regarded it as offensive. The misconduct must be severe or pervasive, but one episode can be illegal if it is linked to the offer (or loss) of a job.

    The new cases are at the Supreme Court as the nation is preoccupied with sex and power in the workplace – largely because of the White House allegations. But they also could portend a new round of such legal dilemmas at the court.

    There has been a big increase in harassment lawsuits across the country, largely tracing to two key 1991 events: the enactment of a federal law allowing victims of sex discrimination to win compensatory and punitive damages, creating an incentive for some employees and lawyers to bring cases they otherwise would not; and the Senate hearings in which Anita Hill accused her former boss, Clarence Thomas, then a Supreme Court nominee, of sexual misconduct. Those hearings raised awareness about alleged misconduct between bosses and their workers.

    "It takes a few years for cases to be tried and appealed," said Ellen Simon, a Cleveland lawyer who specializes in sex discrimination. "This is fallout from 1991: money damages, lawyers, Anita Hill. . . . The cases now before the court are very important. I think it will be helpful to parties on both sides to have the issues clarified."

    Ann Reesman, a District lawyer who represents employers' groups, agreed that companies need to know their potential financial liability and added: "Companies realize this is not only a liability issue, but a business one. Harassment affects productivity and morale."

    Hill's unproven accusations against now-Justice Thomas continue to draw public interest, as have, since 1991, several other disputes on the subject. Last week, in the largest sexual harassment settlement by the federal government, a Boston-area drug company, Astra USA Inc., agreed to pay $10 million to end a lawsuit alleging widespread debauchery and sexual abuse by its officials. The government contends in a separate but similar case that Mitsubishi Motor Manufacturing of America Inc. created a sexually hostile environment at its plant in Normal, Ill.

    Title VII of the 1964 Civil Rights Act makes it illegal to refuse to hire someone, or to discriminate with respect to the "compensation, terms, conditions" of the job, because of sex. The prohibition on sex discrimination was a little-discussed amendment to civil rights legislation primarily intended to protect blacks.

    In 1986, Chief Justice William H. Rehnquist wrote for the court that harassment that creates an offensive or hostile environment is illegal sex discrimination. Since then, the Equal Employment Opportunity Commission has defined essentially two types of harassment: "quid pro quo," in which requests for sexual favors are tied to promotions or other conditions of employment; and "hostile environment," in which the behavior interferes with an individual's ability to do the job or creates an intimidating, hostile environment.

    In 1993, the court said victims need not show that they suffered serious psychological injury as a result of the harassment. The law's prohibition on sex discrimination "comes into play before the harassing conduct leads to a nervous breakdown. So long as the environment would reasonably be perceived, and is perceived, as hostile or abusive, there is no need for it also to be psychologically injurious."

    Ellerth's case against Burlington Industries tests whether when a worker claims a boss's advances were linked to a condition of her employment, she still has a case even if she rejected him and was promoted anyway. Ellerth alleges that she endured a barrage of sexual comments, innuendo and occasionally more from a company vice president Theodore Slowick.

    Over protests from Burlington, the 7th Circuit allowed the case to go forward, saying that a person could claim she was subject to "quid pro quo" harassment and hold a company liable even when a supervisor's threat did not lead to some adverse job consequence (Burlington Industries v. Ellerth).

    The case of Faragher looks more broadly at an employer's responsibility when the employer might not know sexual misconduct is underway. Faragher worked as a lifeguard for the city of Boca Raton, Fla., under supervisors Bill Terry and David Silverman. Faragher said Terry often touched her shoulders or waist, patted her thigh and slapped her on the rear end. Terry called Faragher and other women "bitches," and Silverman performed a pantomime in front of female lifeguards depicting a sex act, tackled Faragher and talked about her breasts.

    But she had never complained to recreation department officials about the conduct, and the 11th U.S. Circuit Court of Appeals said the city of Boca Raton could not be held financially liable for the harassment: "[A]n agent is not acting within the scope of his employment when he is `going on a frolic of his own.' . . . This case provides the archetypical example of employees stepping outside of the scope of their employment and seeking to further personal ends."

    The Justice Department has entered Faragher v. Boca Raton on Faragher's side, saying the appeals court too narrowly interpreted longstanding "agency" principles. "Even when a supervisor refrains from explicitly threatening adverse employment consequences," the Justice Department said, " . . . a subordinate is bound to be aware that the supervisor has that power. A supervisor bent on exploiting his authority therefore may not need to make explicit threats; he may be able to rely on implicit understandings."

    The business-dominated Equal Employment Advisory Council, represented by Reesman, is siding with Boca Raton. It asks the high court to hold employers liable for a supervisor's sexual harassment only if the supervisor had authority to harass or the employer knew about the misconduct and failed to stop it.

    "It's important to get the law straight for everyone involved," said Faragher, who left her Boca Raton lifeguard job for law school and now is a public defender in Denver. "It's important for employers so they know when they're going to be liable and when not. And it's important for employees who have to go through this. It affects your work and your personal life – for the rest of your life."

    Oncale's case, the only one of the batch in which the justices already have heard arguments and a decision is imminent, arose after his boss and two co-workers sexually taunted and abused him. He has asked the justices to rule, for the first time, that Title VII covers not only harassment by men of women and by women of men, but same-sex misconduct as well. Lower courts are split on the issue. During the December hearing in the case, a majority of the justices seemed inclined to find in Oncale v. Sundowner Offshore Services that the 1964 prohibition on sex discrimination applies even when the victim and the harasser are the same sex.

    The fourth and final case asks whether a school district is liable for a high school teacher who lures a student into an affair even when the administrators did not know of the misconduct. The dispute, Doe v. Lago Vista, involves sexual harassment not covered by the 1964 Civil Rights Act but by a 1972 law against sex discrimination in schools, known as Title IX.

    In both situations, however, lawyers who want to hold employers liable say making them financially responsible will encourage those with the most power to deter sexual abuse to do so.

    © Copyright 1998 The Washington Post Company

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