Supreme Court Answers Sexual Harassment Questions

by Kelly Stabinsky, PAC Intern and Linda Berg, PAC Director

As the media and the public grapple with the issue of sexual harassment in the workplace, the military and maybe even the White House, the U.S. Supreme Court has chosen to take on this crucial issue itself, offering further clarification for the harassed, the accused, their employers and their counsel.

In a recent decision, the Supreme Court confirmed the expansive scope of sexual harassment law by ruling that same-sex sexual harassment constitutes illegal discrimination. Three other sexual harassment cases dealing with questions of employer liability will also be decided before the justices' session concludes this summer. In March, the Supreme Court unanimously ruled in Oncale v. Offshore Sundowner that Title VII of the Civil Rights Act of 1964, which makes it illegal for employers to discriminate on the basis of sex, is applicable to same-sex harassment. The sexual orientation of the parties was deemed irrelevant.

Oncale, a Louisiana man, was employed by Sundowner Offshore as a roustabout on an offshore oil rig in the Gulf of Mexico. While on the oil rig, Oncale was allegedly subjected to various forms of sexual humiliation, assault and rape threats. He also testified that he was once held down in the community shower while his supervisor and two other men sexually assaulted him with a bar of soap. Although Oncale reported the harassment on two separate occasions to his supervisors, the actions were passed off as "hazing" and nothing was done.

Oncale quit his job with Sundowner Offshore and filed a federal lawsuit alleging both types of recognized sexual harassment, quid pro quo harassment (where requests for sexual favors are linked to job benefits) and "hostile environment" harassment (where the behavior is so severe or so permeates the workplace that it interferes with an individual's ability to do her or his job). The district court ruled in favor of Sundowner Offshore. The Fifth Circuit Court of Appeals agreed and dismissed the case, stating that Title VII did not apply to same-sex sexual harassment. The Supreme Court reversed the decision, and the case has been remanded to the lower court to be heard on its merits.

Writing for the court, Justice Antonin Scalia said, "Male-on-male sexual harassment in the workplace was assuredly not the principal evil Congress was concerned with when it enacted Title VII, but statutory prohibitions often go beyond the principal concerns of our legislators." The Supreme Court's ruling in this case has been praised by lesbian and gay advocacy groups for treating same sex harassment no differently than male-female harassment.

In three other cases pending before the Court, further clarification on the parameters of sexual harassment is likely.

The issue at stake in two of these cases is whether an employer can be held responsible for the actions of its employees if the employer was never made aware of the discriminatory behavior.

In Faragher v. the City of Boca Raton, a woman employed as a lifeguard was allegedly forced to quit her job after a supervisor repeatedly touched her, calling her and other women "bitches and sluts." Another supervisor described a sexual act in her presence, tackled her and made comments about her breasts. When she filed suit against the city of Boca Raton alleging sexual harassment, the city responded that because they were never made aware of the events they had no liability for the alleged actions of the supervisors.

The second case, Gebser v. Lago Vista Independent School District, concerns a school district s liability for a teacher's sexual involvement with a 14 year-old female student. Although the student claimed that the relationship was consensual, she also stated that she was afraid to tell anyone about the relationship for fear she would be barred from the advanced level courses the teacher taught. The teacher pled guilty to statutory rape charges, and Gebser pursued a civil suit against the school district under Title IX. Both the district court and the Fifth Circuit Court of Appeals granted summary judgment in favor of the school district. The question on appeal to the Supreme Court is whether the school district is liable for the high school teacher's actions when the administration was not aware of the problem.

A third case, Ellerth v. Burlington Industries, may have serious political implications. The case involves a marketing representative from Illinois who filed a sexual harassment suit after leaving her job, alleging that a senior manager in the company asked her to wear short skirts, repeatedly grabbed her, told offensive jokes and said, while staring at her breasts, "I could make your life very hard or very easy at Burlington."

Although aware that Burlington had a policy against sexual harassment, the woman never reported the misconduct for fear of losing her job. When she was considered for a promotion, her harasser conducted the interview and told her that she was not "loose enough" for him. Despite this, she received her promotion. After the promotion he continued to make sexually explicit comments. Within two months of receiving her promotion she quit her job, writing a letter saying she had quit because of the harassment. The allegations in her lawsuit involve both "hostile environment" and quid pro quo sexual harassment.

The District Court granted summary judgment in favor of the employer, and the appellate court affirmed in part that dismissal. On appeal to the Supreme Court is the question of whether adverse employment consequences are necessary to establish a sexual harassment claim.

Paula Jones' lawsuit was dismissed in part because she could not prove adverse employment consequences from the alleged sexual misconduct by President Clinton, giving the Supreme Court's decision on Ellerth great political impact. The dismissal of Jones' case is now on appeal. Should the Supreme Court find that the threat alone of adverse job consequences can be the basis for sexual harassment liability, Jones may have grounds for a successful appeal. The judge in the Jones case also ruled that Clinton's alleged statements did not constitute a clear threat of job detriment.

The Supreme Court has accepted an unprecedented number of sexual harassment cases this session. The stakes are high for women in the workplace as the rules of this law are more clearly drawn by the justices. NOW will continue to watch the Supreme Court and its rulings on employment discrimination closely.

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