Court to Clarify Definition of Sex Harassment

The Supreme Court agreed Monday to clarify the definition of illegal sexual harassment in the workplace, determining whether it need only be behavior that offends a woman or whether she must be psychologically damaged by it as well.

The ruling, due next year, will affect not only millions of working women but also could have a significant financial impact on employers.

Under the Civil Rights Act of 1991, women who suffer sexual harassment can win up to $300,000 in damages from their employers.

But neither Congress nor the high court has spelled out precisely when sexist jokes or derogatory comments about women cross the line from annoyance to illegal sexual harassment.

Lower courts generally have relied on guidelines from the U.S. Equal Employment Opportunity Commission, which says that the offensive behavior must affect the victim’s job performance and create an “intimidating” environment to be termed harassment.

On Monday, however, the justices announced that they would hear an appeal from a Tennessee woman whose employer once called her “a dumb-ass woman” and joked that they should “go to the Holiday Inn to negotiate your raise.”

A federal magistrate deemed his comments “truly gross and offensive” but nonetheless dismissed the woman’s lawsuit because the remarks did not “seriously affect (her) psychological well-being.”

The case (Teresa Harris vs. Forklift Systems, 92-1168), which will be heard in the fall, marks the second time that the justices will have grappled with the issue of sexual harassment in a little more than a year.

Last year, the high court strengthened the law against sexual harassment in schools and colleges by ruling unanimously that these institutions can be forced to pay damages to students who have suffered sexual abuse or harassment.

Overall, however, the high court has had little to say about sexual harassment, and Congress has said even less.

In the Civil Rights Act of 1964, Congress made it illegal for employers to discriminate against employees because of gender. That law unquestionably protected a woman who was fired or denied a promotion because she refused sexual advances by a male supervisor.

In 1986, the justices expanded this protection by ruling unanimously that a supervisor who creates a “hostile work environment” for a woman also violates the law, even if her job or her salary is unaffected by the sexual harassment.

But since then, judges across the nation have divided over when a supervisor’s jokes and demeaning comments about women are enough to trigger a verdict against a company.

“This is especially important now because women have a possibility for a remedy” against sexual harassment, said Marcia Greenberger, co-president of the National Women’s Law Center. Before the 1991 law was passed, women who were sexually harassed on the job could gain only a judge’s order demanding an end to the harassment. Now they can file suit and seek compensatory and punitive damages against employers.

According to the EEOC, sexual harassment is defined as “unwelcome verbal or physical conduct of a sexual nature” that “unreasonably interferes with an individual’s job performance” or creates “an intimidating, hostile or offensive working environment.”

Victims of such harassment can be male as well as female and the harasser can be a co-worker as well as a supervisor, the EEOC said in a 30-page memo issued in 1988.

Further, judges should consider how a “reasonable person” would be affected by the conduct.

“For example, the commission believes that a workplace in which sexual slurs, displays of ‘girlie’ pictures and other offensive conduct abound can constitute a hostile work environment, even if many people deem it to be harmless or insignificant,” the memo said. It was signed by then-EEOC Chairman Clarence Thomas, now a Supreme Court justice.

In the case of Teresa Harris, a magistrate agreed that a “reasonable person” would have been offended by her supervisor’s comments but nonetheless concluded that that alone did not trigger a violation of the law.

From 1985 to 1987, Harris worked as a rental manager for a company that leased forklifts. She and her husband occasionally socialized with her employer, Charles Hardy, the president of Forklift Systems.

On the job, however, Hardy made derogatory comments to Harris. “You’re a woman, what do you know,” he said several times. He also commented on her clothes and suggested that she and other women retrieve coins from his front pants pocket. He also asked Harris and other female employees to pick up objects that he dropped on the floor.

In August, 1987, Harris met with Hardy to complain about his conduct. But the sexual jokes continued and included his comment about going to the Holiday Inn. Upset and angry, she quit her job and filed a lawsuit. She sought back pay because she contended that she had been forced out of her job.

In a trial before U.S. Magistrate Ken Sandidge, several female co-workers said that they were not offended by Hardy’s jokes. They also noted that Harris regularly joined Hardy and other employees in after-hours “bull sessions” where sexual jokes were exchanged over beers.

The magistrate concluded that it was a “close case.” Hardy “was vulgar and crude, but the sexual conduct was not in the form of sexual propositions or physical touching. Although Hardy may at times have genuinely offended (Harris), I do not believe that he created a working environment so poisoned as to be intimidating and abusive to her.”

Both a federal judge and the U.S. 6th Court of Appeals upheld his conclusion.

In his appeal, Harris’ attorney questioned whether a woman must “suffer severe psychological injury,” and the justices agreed to review the case.

In other actions, the court:

--Let stand a $375,000 libel verdict against a West Virginia newspaper, which questioned in an editorial the ethics of a lawyer who it said “took every penny” of a workers’ compensation award won by a “sick immigrant miner” (Daily Gazette vs. Hinerman, 92-984).

--Refused to hear an appeal from a California man who made an illegal $120,000 contribution to a third-party candidate in the 1986 race for the U.S. Senate (Goland vs. U.S., 92-985).