When do vulgarities become illegal? High court to hear harassment case


WASHINGTON -- When do sexual comments and tasteless jokes on the job cross the line that separates mere annoyances from illegal sexual harassment? And how much is enough to prove that the line has been crossed?

At one extreme, a federal appeals judge in Cincinnati has held that women at male-dominated work sites must put up with "rough-hewn and vulgar language." At the other, the federal appeals court in San Francisco has said that crude remarks about sex can amount to illegal gender discrimination.

Now the Supreme Court must resolve the issue in a case it will hear this week, and its ruling could affect virtually every workplace in the nation. Women's groups see an opportunity to ZTC address one of their fundamental grievances; employers dread the damage awards of up to $300,000 provided by the 1991 Civil Rights Act.

The case (Teresa Harris vs. Forklift Systems, 92-1168) marks only the second time that the Supreme Court has considered a sexual harassment dispute.

It is the first since the issue captured the nation's attention during Senate confirmation hearings for one of the court's own members, Justice Clarence Thomas. In stunning testimony two years ago, Anita Faye Hill charged that in the early 1980s Justice Thomas repeatedly embarrassed her with sexual comments when they worked together at the Equal Employment Opportunity Commission. Justice Thomas flatly denied any such remarks.

In the case before the court, both sides agree on what was said. What they disagree on is the significance of the comments.

The case was brought by Teresa Harris, who in 1985 went to work as a sales manager for a company in Nashville, Tenn., that sold and leased forklifts. She had been attracted to the firm by owner Charles Hardy's reputation as an astute businessman.

She soon learned he was something else as well.

Ms. Harris said that he repeatedly humiliated her. "Let's go to the Holiday Inn to negotiate your raise," he said in front of a group of employees. At other times, he asked her and other females to retrieve coins from his front pants pocket.

Why did she stay in his employment? "I needed to work. I had two sons at home," she said last week. "And I hoped it would end."

A few weeks later, when Ms. Harris returned to the office with the news that she had signed up a new long-term client, Mr. Hardy responded: "What did you do, promise him (sex) on Saturday night?"

Shortly afterward, Ms. Harris quit and filed a sexual harassment suit against her employer.

In 1964, Congress made it unlawful for employers to discriminate against any employee in regard to "compensation, terms, conditions or privileges of employment" based on factors such as race, sex, religion or national origin.

No one questions that an employer who demands sexual favors from an employee would be in violation of the law. In 1986, the Supreme Court went further and said that employers also violate the law if they create a "hostile working environment" for female employees.

The U.S. magistrate who tried Ms. Harris' case concluded her employer was a "vulgar and insensitive" man who enjoyed "demeaning" women. His behavior, the magistrate found, ranged from "annoying" to "truly gross."

Nonetheless, he dismissed her claim because Mr. Hardy's harassment was not "so severe as to . . . seriously affect [her] psychological well-being." In addition, he said, Mr. Hardy's comments did not truly "interfere with her work performance" or cause her a true "injury."

Ms. Harris sought to overturn that decision in the U.S. appeals court in Cincinnati. That court previously had thrown out several sexual harassment complaints by female workers in blue-collar jobs on the grounds that women must accept "sexual jokes, sexual conversations and girlie magazines," because those are the norm at male-dominated work sites.

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