Justices support harassed workers Employers held liable for supervisors' acts, including threats

THE BALTIMORE SUN

WASHINGTON -- Defining new standards to govern sexual harassment, the Supreme Court ruled yesterday that employers should often be held legally responsible for mistreatment by supervisors of workers under their control.

And, the court made clear for the first time that workers who are threatened with job penalties if they don't submit to sexual advances or they refuse to tolerate sexual remarks may sue for damages even if those threats are never carried out.

But it also created a new legal defense that sometimes could spare employers from heavy damages -- if they show they have clear anti-harassment policies and make it easy for workers to file complaints about abuse.

By votes of 7-2, in two decisions that may have an effect on Paula Corbin Jones' attempt to revive her sexual misconductcase against President Clinton, the court moved to clarify the federal law that governs sexual advances in the workplace -- Title VII.

The rulings favoring harassment claims contrasted sharply with a decision this week making it far more difficult for students to prove sexual harassment by their teachers. The earlier ruling, however, was under a different federal law -- Title IX -- and the court said Congress had not encouraged student lawsuits, as it has those by workers.

Court recesses for summer

Yesterday's rulings were the final major rulings of the court term. The justices then began a summer recess, with no indication that any of the older justices was ready to retire, as recent rumors had suggested.

A key part of yesterday's ruling said that the employer will be held to blame, even if it has anti-harassment policies in effect, if a supervisor harasses an employee and then fires a worker who resists, denies that worker a promotion or pay raise, or transfers the worker to an unwanted or undesirable reassignment.

Potential defense

The main question in Title VII cases, the court said, will be whether a worker is actually penalized in some way by a harassing supervisor. That supervisor's adverse actions against the worker, the court said, will make the employer itself liable -- with no defense.

In instances where threats of job penalties are not carried out, workers may also win harassment cases, the court said. In those situations, though, management will be able to offer the legal defense that it had anti-harassment policies in operation and the worker did not complain of harassment.

Both rulings had been awaited eagerly by employee rights advocates, women's groups and business organizations -- and also by lawyers on both sides of Jones' lawsuit, who were looking for clues on how that case could be affected.

Jones' lawsuit contended that Clinton made a crude sexual gesture toward her when he was governor of Arkansas and she was a state employee, then warned her to keep it between themselves and indicated he knew who her boss was.

A federal judge dismissed Jones' case in April, finding that -- if the advance occurred -- Jones suffered no job penalty for refusing to submit and that there actually was no threat. But Jones has asked a federal appeals court to reinstate her case. Her lawyers recently got a delay in the procedural scheduling of her appeal, to await the outcome of the Supreme Court cases that were decided yesterday.

Jones' lawyers heartened

John Whitehead, one of Jones' lawyers and president of the Rutherford Institute, which is paying her legal fees, said the Supreme Court had upheld "Paula Jones' primary legal arguments -- that regardless of tangible job detriment, sexual harassment in the form of unwelcome advances and either threats or promises of employment action is sufficient for women to receive remedies in a court of law."

Jones' attorneys hope that the court ruling, especially as it deals with threats of workplace retaliation for resisting sexual advances, will help them win from the federal appeals court an opportunity for a new round before the judge who dismissed her lawsuit.

But Clinton's private lawyer, Robert Bennett, said that judge already had taken into account the legal theories the Supreme Court dealt with yesterday, and said Jones could not benefit from them anyway.

What the court ruled yesterday, Bennett said, "does not undercut the persuasive opinion of District Judge [Susan Webber] Wright throwing out Ms. Jones' case."

One of the two cases involved a woman who complained of crude sexual overtures by her supervisors when she was a municipal beach lifeguard in Boca Raton, Fla., while in college there. After another worker complained, the first woman, Beth Ann Faragher, quit because of the abuse.

The Supreme Court, applying its new legal formula, ruled that Faragher, now a Denver lawyer, should win her case without any further review in lower courts. The city could not show that it had made beach employees aware of its anti-harassment policy, and city officials made no attempt to monitor the conduct of beach supervisors, the court declared in the opinion by Justice David H. Souter.

The other case involved a Chicago sales staff member for Burlington Industries, Kimberly Ellerth, who complained that one her sales supervisors repeatedly made sexual remarks or gestures toward her, and three times appeared to be threatening her job if she did not submit -- threats that were never carried out.

But, the same formula did not lead to an immediate victory in the case for Ellerth. Her case involved only threatened adverse job actions. So, the court said in an opinion by Justice Anthony M. Kennedy, the dispute should return to lower courts, where both sides could apply the new ruling.

2 rulings, same voters

Joining the two court opinions were the same voting group of justices: Souter and Kennedy, along with Chief Justice William H. Rehnquist and Justices Stephen G. Breyer, Ruth Bader Ginsburg, Sandra Day O'Connor and John Paul Stevens. Dissenting in both cases were Justices Antonin Scalia and Clarence Thomas, who said that the majority had gone too far to hold employers liable for what their supervisors have done.

But the rulings drew praise yesterday both from the U.S. Chamber of Commerce and women's rights groups -- the chamber saying the court had spared employers from automatic liability, and the women's activists saying it had made it easier for harassment victims to win.

Pub Date: 6/27/98

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