Boston.--It isn't often the Supreme Court gets to rule on the law's sense of humor.
Then again, it isn't often the court gets to hear an act quite like the one Charles Hardy performed regularly at Forklift Systems Inc. Tomorrow morning, the highlights of this stand-up comedian's routine will come before the nine justices. They will be treated to some of the one-liners he used on his employee Teresa Harris:
"Let's go to the Holiday Inn and negotiate your raise."
Don't wear a bikini "because your ass is so big, if you did there would be an eclipse and nobody could get any sun."
"I have a quarter way down there, would you get it out of my [front] pocket?"
"You're just a dumb-ass woman."
If the justices find Mr. Hardy lacking in wit, well, so did Teresa Harris. The Nashville woman found him demeaning, humiliating, infuriating. But with two kids to support and a $40,000-a-year job at stake, she didn't want to be driven out.
"I tried to let it roll off my back," Ms. Harris recalled over the phone. When that didn't work, she tried confronting him. The end came when she won a new account, and he said: "What did you do, promise the guy . . . some 'bugger' Saturday night?" Some kidder.
At that point, Ms. Harris quit. She went to court to pin another label on her boss' humor. She called it harassment. Sexual harassment. The case carrying her name asks the justices to agree.
The law in this area is still new. So far, the court has ruled that there are two kinds of sexual harassment. One is the quid pro quo kind: sleep with me or you'll get fired. The other is the kind Teresa Harris describes at Forklift: conduct that makes a "sexually hostile" workplace.
But the highest court has not yet defined that conduct. The justices have only said that it must be "sufficiently severe or pervasive to alter the conditions of [the victim's] employment and create an abusive working environment."
Indeed, a lower-court magistrate ruled that the Forklift Jokester wasn't offensive enough to make this sexual harassment. He wrote:"This is a close case, but Charles Hardy's comments cannot be classified as much more than annoying and insensitive."
In addition, the magistrate ruled, Teresa Harris wasn't devastated enough to claim harassment. Her ability to function in that workplace became proof that it wasn't severely hostile. She hadn't shown "serious psychological injury."
This is where the law is up for grabs. Three circuit courts have ruled that a woman must prove she's been psychologically injured -- make that devastated -- before she can claim harassment. Three others have ruled that she only has to prove that a reasonable person would find the conduct offensive or unwelcome.
Now it's up to the justices ofthe Supreme Court to resolve the issue. As Judith Lichtman of the Women's Legal Defense Fund phrases the question before the court, "How bad does bad have to be before it's bad enough? And who decides?"
If Charles Hardy is merely an insensitive man, then Teresa Harris is merely a hypersensitive woman, and other women should grin and bear it. If a woman must be psychologically devastated before she can prove that the environment is hostile, she'll be powerless to change a workplace until, perversely, it's destroyed her.
The truth is that Teresa Harris is a strong woman. She may have been reduced to tears, tranquilizers, alcohol and self-doubt, but she was not devastated. She walked out of Forklift, she retrained to be a bone-marrow-transplant nurse. When she cries these days at work, it's for very different reasons.
It's the strong women who bring cases against Forklift or for that matter, Tailhook. What an irony if a court decides the working environment is OK because it didn't turn a strong woman into a basket case. Yes, and segregation didn't destroy the spirit of Rosa Parks.
When Teresa Harris arrives at the Supreme Court tomorrow, she won't have Charles Hardy on her mind. That's over. The man who bothers her now, she says, is the lower-court judge. "How can a judge say, 'This man did everything you said. He's a vulgar man who demeans women in the workplace, but so what.' That eats me up inside. That can't be. That has to change."
If it does change, if life gets a bit better in a thousand workplaces, it's because Teresa Harris couldn't take another joke.
Ellen Goodman is a syndicated columnist.