High Court Takes Up Harassment Cases
By Joan Biskupic
The Supreme Court yesterday took up for the first time the question of when an employer should be held financially responsible for the groping, vulgar language or other sexual harassment by its supervisors.
The two cases argued before the justices ultimately could affect how both private companies and government employers respond to sexual misconduct, what they do to stop it and how vulnerable they are to victims seeking money damages.
The issue arises as the American public is muddling through larger questions of sexual harassment that have arisen in the swirl of allegations surrounding President Clinton. And the justices demonstrated yesterday that they, too, are confounded by aspects of this difficult area of the law: Should an employer be liable for the crude remarks and touching by a supervisor if the incidents were never reported to management? Is the company off the hook if it has a policy against harassment?
And, as Justice Sandra Day O'Connor asked, "Don't you think every employee in the country knows you can complain to someone up the ladder?"
Not everyone does know, said lawyers representing the interests of a former lifeguard suing the city of Boca Raton, Fla., for sexual harassment. Further, both William R. Amlong, attorney for former lifeguard Beth Ann Faragher, and Justice Department lawyer Irving L. Gornstein, intervening on behalf of the U.S. Equal Employment Opportunity Commission, said women may fear retaliation if they complain.
Amlong also said that telling employers that they aren't liable for actions they don't know occur would have the effect of encouraging companies to look the other way when they do suspect harassment in the workplace. "It's hear no evil, see no evil, pay no lawsuit," he said.
The core question is whether an employer should be liable for the wrongdoing of supervisors who create what's known as a "hostile work environment" by their verbal and physical misconduct. This is illegal under Title VII of the Civil Rights Act of 1964, which prohibits sex discrimination on the job.
Faragher worked at a city beach for supervisors Bill Terry and David Silverman. She said Terry patted her thigh, slapped her on the behind, and called her and other women offensive names. At one point, Faragher said, Silverman, who also spoke crudely to her about her breasts, tackled her to the ground.
Faragher said the abuse went on for four years, but she never complained to city authorities for fear of jeopardizing her job. A federal appeals court said the city could not be held liable for the harassment because the men were acting outside the scope of their employment.
The second case involved a 14-year-old girl, Alida Star Gebser, who said she was seduced into having an affair with her high school teacher, Frank Waldrop. The teacher was criminally prosecuted after the pair was discovered having sex by a police officer in the Texas town where they lived. Gebser and her mother then sued the Lago Vista Independent School District, alleging sex discrimination. A lower appeals court said the district could not be liable unless it actually knew of the abuse as it was going on and failed to do anything about it.
Lawyers who represent harassment victims argue that it helps deter abuse on the job if employers are held financially responsible for their workers' actions. But many employers say they cannot constantly police the workplace for misbehavior of a sexual nature.
Lawyer Harry A. Rissetto, representing the city of Boca Raton, said "trying to find out sexual harassment of the subtle kind . . . is nearly impossible."
"What is subtle about what is described here?" Justice Ruth Bader Ginsburg responded.
Rissetto told the justices the "frolics or improprieties" of the men were not within the scope of their employment so the city cannot be held liable. He also said an employer cannot be liable unless it knew or clearly should have known about the wrongdoing.
But Amlong, representing Faragher, said employers should be liable based on the general theory that their supervisors act as their agents. He said that even if an employer claims it didn't know about the harassment, a jury could infer from the pervasiveness of the wrongdoing that the activity was taking place.
Chief Justice William H. Rehnquist said it sounded as if Amlong wanted employers to have to pay for the harassment under all circumstances, even if they had policies against it. Amlong said he was not pressing for such "strict liability," as it is called, but failed to give the court solid examples of when a company would not be liable for sexual harassment by a supervisor.
While Faragher v. Boca Raton arose under Title VII, the school case of Gebser v. Lago Vista Independent School District was filed under Title IX of the Education Amendments, prohibiting sex discrimination by schools that receive federal funds. The justices suggested in their questions yesterday that they may be unlikely to rule that a district is liable under that statute, giving schools the option of accepting federal money and certain conditions.
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