Defining the Terms of Harassment
By Joan Biskupic
CHICAGO Kimberly Ellerth was 23, fresh out of college and recently married, when she landed a prized marketing job with Burlington Industries in its Chicago office. But eventually her dream job became unbearable, she said, after a boss began making sexual advances toward her.
The supervisor would accompany Ellerth on business trips, and once in a hotel lounge, after ogling her body, he allegedly said, "You know, Kim, I could make your life very hard or very easy at Burlington."
Later, in a telephone conversation, he reportedly said, "I don't have time for you right now, Kim, unless you tell me what you're wearing." Shorter skirts would help, she remembers him saying. Another time, he allegedly rubbed her knee and said she was not "loose enough for him."
Ellerth did not submit to his propositions and lost neither her job nor a promotion as a result. But after about a year, when the boss supposedly refused to authorize a project of hers and asked in a telephone call, "Are you wearing shorter skirts yet?" Ellerth quit.
She began thinking, "This isn't fair. This isn't right." So she sued Burlington for sexual harassment and triggered a chain of events that has now given the Supreme Court one of its most important and topical cases of the term. How the issue is decided could affect Paula Jones's appeal of her sexual harassment suit against President Clinton.
The question is whether a worker has a legitimate sexual harassment case if she neither submitted to the boss nor suffered any tangible detriment because she said no.
Lawyers in the field say circumstances like this where the threat of punishment is never carried out are common in the nation's workplaces. But in many courts, if a woman is claiming what is known as "quid pro quo" sexual harassment in which a job benefit or loss depended on whether she submitted to the boss she must show that she suffered a hardship for refusing to succumb.
If the Supreme Court rules that workers can bring a case when a retaliatory threat goes unfulfilled, many more victims would be able to sue their employers. Right now, several lower courts require proof of tangible consequences. During oral arguments this week, the justices will weigh whether there can be a quid pro quo case if there is no "quo," that is, the woman did not suffer any definite job detriment.
Jones, like Ellerth, contends that when a boss implicitly threatens some job consequence, his advances are illegal. The quid pro quo allegation is just one part of Jones's multifaceted complaint against President Clinton, and the judge in the case said that even under the most lenient standard, Jones's case could not go forward. But if the Supreme Court rules in a way that redefines the terms of harassment, it could complicate and further prolong Jones's case against Clinton.
Burlington Industries, where Ellerth worked from March 1993 to May 1994, said it should take more than a threat to make companies financially responsible for a supervisor's abusive talk or conduct. When there's no actual firing, demotion or definitive job action, Burlington lawyer James Casey contends, employers have no way of knowing that a supervisor is conditioning some job benefit on his sexual demands.
Lower courts are split on the question, and employers and employees with significant stakes are watching how the Supreme Court resolves the conflict. The 7th U.S. Circuit Court of Appeals said Ellerth had a case based on the serious threat of job harm, rejecting the theory that an economic or tangible injury must be shown.
The case before the high court is Burlington's appeal of that decision last August that employers may be strictly liable under Title VII of the Civil Rights Act of 1964 even if the worker neither succumbed to a boss's advances nor suffered any adverse job consequences as a result.
In making its argument, the company points to a 1995 case from the D.C. Circuit Court of Appeals that said, "It takes more than saber-rattling alone to impose quid pro quo liability on the employer; the supervisor must have . . . [subjected] the victim to adverse job consequences as a result of her refusal to submit."
Casey, the company's lawyer, defines a "tangible" job loss as "anything that rises to the level of something that would affect one's career."
"Congress simply cannot have intended for [federal law] to make employers strictly liable for the behavior of their supervisory employees at all times and all places," he said.
But Ellerth's lawyer, Ernest Rossiello, said that if a supervisor is going to use his authority to win a sexual demand, the company should be held accountable, whether the employee was punished or not. If a supervisor has the power to threaten some consequence, he said, that is enough to invoke the company's responsibility.
"In a lot of cases there is no job loss or bonus forfeiture," Rossiello said in an interview. "But why should a woman have to come into work and have to be humiliated, like, 'Hey tootsie, nice legs.'‚"
Rossiello said Ellerth remains upset over the episode and has nightmares. "This has screwed up her whole life," Rossiello said. "She had a good life and a good job. This was exactly the job she went to college for." After working as a substitute teacher, Ellerth is now a homemaker with two small children.
Ellerth, whose version of events at Burlington was recorded in a lower court proceeding, has refused all recent requests for interviews. In a session earlier this year with Court TV, she remained composed until she was pushed for details about her time at Burlington. Then she broke into tears, continually reaching for tissues as she talked about how "humiliating" and "degrading" the experience was: "It made me feel like a piece of meat."
Since the alleged abuse occurred four years ago, the two sides have been locked in a dispute over whether the incidents, even if true, constituted sexual harassment. As a result, Ellerth has never had a trial on the merits of her case. The man she accused of harassing her, Theodore Slowik, continues to work for Burlington, because company officials say they investigated and believe nothing improper occurred.
Legal experts say it is not uncommon for a worker to feel the threat of retaliation for spurned advances but have no paper trail to show to management or the courts.
Alice Jansen claims that she too was subjected to sexual harassment in much the same way that Ellerth describes. Jansen was 39 and recently divorced when she found a well-paying secretarial job at a packaging company in Chicago. But the relief she felt at getting work to support two children and pay a mortgage quickly disappeared.
"First, he started talking about my looks, asking me to wear skirts," Jansen said of her boss. "Then . . . he would pat his crotch as he talked to me. He was always coming in asking for a 'quickie,'‚" meaning oral sex, she said.
Jansen flushes as she says, "Just the mere fact of someone telling me he wants [oral sex]. I was angry. How does he get away with it?" But she ended up keeping her job even after her boss left the company. Because of the similarity of the cases, the dispute was consolidated with Ellerth's in the 7th Circuit, but Jansen has since decided to settle her claim. Ellerth's moved forward and will be heard by the Supreme Court on Wednesday.
Many groups with a stake in the matter will be watching.
The Equal Employment Opportunity Commission filed a brief in the case arguing that claims such as Ellerth's are legitimate and should be heard. "The employee may decide not to accede to the demand, and the supervisor may decide not to enforce it, and those decisions may affect the extent of recoverable damages," Solicitor General Seth P. Waxman wrote in a brief for the EEOC. "But as long as the employee reasonably believes that the threat is genuine, and the supervisor has authority to grant or withhold the benefit," the employee should be able to bring a sexual harassment complaint.
In a similar vein, the National Employment Lawyers Association has told the court that because job supervisors have such authority in society, courts should find that unlawful harassment occurs when a boss makes a threat, whether or not the threat is carried out.
On the other side, the U.S. Chamber of Commerce has urged the court to find in Burlington Industries v. Ellerth that an unfulfilled threat is actionable only when it was sufficiently severe to change the conditions of the job and only if the employer knew or should have known about it and failed to take action.
© Copyright 1998 The Washington Post Company