Justices clash over harassment issue

WASHINGTON — WASHINGTON -- Justices Antonin Scalia and Ruth Bader Ginsburg clashed yesterday during a spirited exchange in the Supreme Court over how to define sexual harassment in the workplace.

At issue was whether a woman's job performance must suffer in some way before she can claim she is a victim of illegal job discrimination.


Government attorney Jeffrey P. Minear was arguing that a woman's job performance need not be affected by the harassment.

"You're still talking about an unpleasant environment," said Justice Scalia, clearly unconvinced that such conditions alone constituted discrimination.


At this point, Justice Ginsburg jumped in to agree with Mr. Minear. In her view, sexual jokes and uncouth behavior alone could amount to illegal workplace discrimination against women.

"One sex has to put up with something the other sex doesn't have to put up with," she said. "It is different treatment for men and women," she said.

During much of the hour, the Supreme Court's two most assertive justices batted the issue back and forth, pressing the competing attorneys to bend to their view of the law.

Though Justice Scalia, 57, and Justice Ginsburg, 60, are said to be close friends who respect each other's legal ability, they have wasted little time in staking out contrasting positions.

The exchanges came as the justices heard arguments in the case of Teresa Harris vs. Forklifts Systems, seeking to clarify the law on sexual harassment on the job.

Though Ms. Harris was called a "dumb-ass woman" by her boss and made the victim of embarrassing jokes, the U.S. appeals court in Cincinnati said her job rights were not violated because she did not suffer "psychological damage."

But other federal courts have taken the view that a woman's rights are violated simply when she is subjected to offensive language.

By the end of the hour, it seemed clear the justices would throw out the requirement that a woman must suffer demonstrable psychological harm before she can win damages from her employer.