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  •   Supreme Court Gets Basic
    With Harassment Law

    Supreme Court

    By Joan Biskupic
    Washington Post Staff Writer
    Thursday, April 23, 1998; Page A10

    The Supreme Court grappled yesterday with the fundamentals of sexual harassment law: What constitutes harassing conduct by a boss, and when should a company be held financially responsible?

    In many ways, during oral arguments, the justices seemed to be stepping back, looking at long-standing distinctions for reviewing complaints and wondering whether they still worked.

    "How did all this come up?" asked Justice Ruth Bader Ginsburg, referring to categories and standards used by courts but never drawn in the core federal law forbidding harassment on the job.

    The actual question before the court is a narrow one: whether a worker can sue a company based on a boss's sexual advances and threats of retaliation if she spurned the advances and the threats went unfulfilled. The case originated with Kimberly Ellerth, whose supervisor at Burlington Industries told her, "I could make your job very hard or very easy," asked her to wear shorter skirts and touched her inappropriately.

    Ellerth neither submitted to his propositions nor lost her job or a promotion because she rejected the boss. After she sued, Burlington tried to have the case dismissed. A federal appeals court ruled, however, that employers may be held liable even if the worker suffered no adverse job consequences.

    Yesterday, Burlington's lawyer, James Casey, said before the high court that employers should be liable only for tangible job detriments, not "bluffing."

    Some of the justices seemed to agree that more than a threat would have to be shown to invoke an employer's financial responsibility. If it is "just a threat," Justice Anthony M. Kennedy suggested, there has been no company action.

    The court's decision this summer on Burlington's appeal could affect Paula Jones's appeal in her case against President Clinton. Like Ellerth, Jones contends that when a boss implicitly threatens a job consequence, his advances are illegal. The so-called "quid pro quo" allegation is one part of Jones's complaint, but the judge in her lawsuit found that even under the most lenient standard, Jones's lawsuit could not go forward.

    The justices tried to consider the narrow question of liability for a supervisor's sexual advances in the broader context of protection against all harassment in Title VII of the Civil Rights Act of 1964. The difficulty arises from court distinctions between what is known as "quid pro quo" harassment, misconduct by a supervisor linking requests for sexual favors to some job benefit or detriment, and "hostile work environment" harassment, which can be brought against co-workers and supervisors and involves severe or pervasive abuse that interferes with the worker's ability to do the job.

    Justice Sandra Day O'Connor said the sexual innuendo and misconduct Ellerth asserts might constitute a hostile work environment. "I don't see a lot of difference here," she said.

    One traditional difference, however, has been in an employer's liability. In quid pro quo cases, courts usually hold employers strictly liable, without asking a worker to show that an employer ignored or was otherwise negligent in allowing the harassing conduct to occur.

    The Justice Department has joined the case of Burlington Industries v. Ellerth on the woman's side, saying if an employee believes a threat is genuine, and the supervisor has the authority to carry it out, she has a case. Deputy Solicitor General Barbara Underwood told the justices yesterday that a threat, even if empty, has a coercive and detrimental effect on a worker. Ellerth's lawyer, Ernest Rossiello, similarly said a company should be held accountable whenever a supervisor uses his authority in any way to make a sexual demand.


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