Court to Hear Supervisor Harassment Case
By Joan Biskupic
Taking up the case of a former Florida lifeguard who says she was sexually harassed on the job, the Supreme Court announced yesterday it will decide when an employer may be held responsible for the misconduct of its supervisors.
A ruling could clarify conflicting standards among lower courts nationwide and determine how easily a harassment victim can win money damages not only from a supervisory employee but also from the typically wealthier company or government employer.
The Supreme Court already had several job discrimination cases on the docket this term. Yesterday's addition gives the justices two major disputes specifically in the area of sexual harassment. In early December, the court will hear arguments over when a worker may claim sexual harassment by someone of the same sex.
Yesterday's case, to be heard early next year, was brought by Beth Ann Faragher, who worked as an ocean lifeguard for the city of Boca Raton intermittently from 1985 to 1990. She claimed that one of her supervisors, Bill Terry, touched her shoulders or waist on a number of occasions, patted her thigh and slapped her on the buttocks. Another supervisor, David Silverman, made offensive comments to Faragher. Similar complaints were made by another female lifeguard, but neither woman brought the matter to the attention of the Parks and Recreation Department management.
That last fact was important to an appeals court, which reversed a trial court's judgment finding that the city of Boca Raton was directly liable for Terry's and Silverman's conduct creating a "hostile work environment" and violating federal anti-discrimination law. The 11th U.S. Circuit Court of Appeals ruled an employer may be held liable only if it knew or should have known about the hostile environment and failed to act promptly.
A key to determining liability, the appeals court said, is whether the misconduct became so pervasive that the employer should have known about it. "The evidence suggests that just the opposite is true," the appeals court said. "The lifeguards were stationed at a remote location and had little contact with city officials. The harassment itself occurred intermittently over a long period of time."
In her appeal, Faragher, who quit her lifeguard job to attend law school, noted that other lower courts have been inclined under traditional agency principles to hold an employer liable for the harassing conduct of its supervisors. And dissenting judges on the 11th Circuit said the majority failed to consider the responsibility of an employer for its "agents." The dissent said, "Faragher was completely isolated from the city's higher management, and Terry and Silver directly controlled and supervised all aspects of her day-to-day activities." A ruling in Faragher v. City of Boca Raton is likely to be handed down sometime before the court recesses next summer.
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