High Court May Clarify Scope of Sex Harassment

“You know, Kim, I could make your life very hard or very easy at Burlington.”

Ted Slowik, a vice president of Burlington Industries, already had made life miserable for Kimberly Ellerth, his newly hired young merchandising assistant, with insistent comments about her legs, her skirts and her sex life. Now, as they were leaving a hotel lounge together after a long business day, he made one of what Ellerth called his repeated suggestions that sex with him would advance her career.

After 14 months, she quit and sued the textile manufacturer in federal court.

Her case goes before the Supreme Court today to resolve a fundamental dispute over the law of sexual harassment. Is it illegal for a supervisor to demand sex from a subordinate or must the harassed subordinate also prove that she suffered a specific “job detriment”--a demotion or a failure to gain a promotion--for refusing her boss’ advances?

Ellerth’s case achieves the remarkable feat of bringing together the Clinton administration and the Rutherford Institute, the conservative group that underwrote Paula Corbin Jones’ sexual harassment lawsuit against President Clinton.

In separate friend-of-the-court briefs supporting her, the administration and Rutherford urged the justices to take a strong stand against sexual harassment in the workplace and to rule clearly that a supervisor may not demand sex from a subordinate.

And, in an ironic twist for Clinton, a victory by his administration’s lawyers in this week’s case may revive Jones’ lawsuit against the president.

“There is no legitimate reason for a supervisor to demand sexual favors,” the administration says. A supervisor’s “extortionate demand” for sex violates federal civil rights law even if the female worker refuses and afterward suffers no “job detriment,” the administration’s lawyers maintain.

Rutherford agrees with the need for a zero-tolerance policy. “A supervisory employee should [not] be entitled to engage in egregious harassment of an employee,” regardless of the impact on her job, its lawyers say.

By coincidence, this issue was in the national spotlight three weeks ago when U.S. District Judge Susan Webber Wright threw out the Jones lawsuit before trial. Because the former Arkansas state clerk had no evidence that she had suffered a “tangible job detriment” for refusing Clinton’s alleged advances, she had no case, Judge Wright ruled.

A federal judge in Chicago took the same view of Ellerth’s case. Because she had no evidence that Slowik retaliated against her for refusing his advances, he dismissed her claim before trial.

“This is the real story in sexual harassment law, that many judges set a very high barrier for plaintiffs to get over,” said David B. Oppenheimer, an expert on harassment law at Golden Gate University Law School in San Francisco. “It differs quite a bit by region, however,” he added. California judges, taking a more liberal view, have said that employers are “strictly liable” for harassment by supervisors.

During oral arguments today, an administration lawyer will join Ellerth’s attorney in urging the Supreme Court to send her case to a jury.

The stakes in the case (Burlington Industries vs. Ellerth, 97-569) go far beyond Jones and Ellerth. The ruling, expected by July, will have an impact both on workers who suffer harassment on the job and on American businesses, which could be forced to pay liability judgments.

Women’s rights advocates fear that, if the high court sides with Burlington, it will encourage even more judges to dismiss sexual harassment claims before trial.

Lawyers for Burlington, joined by the U.S. Chamber of Commerce, say that it is unfair to hold companies automatically liable for harassment by their supervisors.

Slowik’s harassment amounted to nothing more than “an empty threat that [did] not result in any job detriment” to Ellerth, the company argues. The company says that Slowik is still employed in the same position, despite Ellerth’s sworn deposition detailing the pattern of harassment. The Chamber of Commerce also says that “unfulfilled threats” of retaliation by supervisors seeking sex should not result in liability judgments against a company.

The law on sexual harassment is a work in progress. The 1964 Civil Rights Act simply makes it illegal for employers to discriminate against employees in the “terms and conditions” of their work because of their race and sex.

In 1986, the Supreme Court said that workplace sexual harassment was a type of illegal sex discrimination. But since then, the law has been shaped by lower court judges on a case-by-case basis.

Some jurists, including Wright in Little Rock, Ark., have taken the narrower, more restrictive view of the law. Because the law bans job discrimination, plaintiffs must prove that their job status was affected, they maintain. A record of harassment alone is not enough.

In her complaint, Ellerth cites 130 examples in which Slowik commented on her body, asked about her sex life, touched her knees, told gross jokes and asked her on the phone what she was wearing. When she complained to another manager, she was told to ignore him. “Ted is just Ted,” she quoted the manager as saying.

When she sued, U.S. District Judge Ruben Castillo granted a summary judgment for Burlington. Ellerth’s claimed harassment was not sufficiently severe to be considered a “hostile environment,” nor did her job status suffer enough to prove a quid pro quo harassment, he concluded.

“To prevail on a theory of quid pro quo harassment, she would have to prove that Slowik actually withheld tangible employment benefits as a result of her failure to submit to his sexual overtures,” the judge said.

Other courts, however, including the U.S. 9th Circuit Court of Appeals in San Francisco and the U.S. 7th Circuit Court of Appeals in Chicago, have taken a broader, more expansive approach. They have maintained that a supervisor’s demands for sex violate the law, even if the woman’s job status is unchanged as a result.

The full 7th Circuit Court, on an 8-3 vote, revived Ellerth’s case and said that Slowik’s harassment and veiled threats, if true, violated the law. When Burlington appealed, the Supreme Court agreed to hear the case to settle the split among the lower courts.

The division of opinion is apparent even among the lawyers who work for Clinton.

Lawyers at the Justice Department and the U.S. Equal Employment Opportunity Commission adhere to the expansive view.

Sexual demands by a supervisor are always “illegitimate and indefensible,” U.S. Solicitor General Seth Waxman and civil rights chief Bill Lann Lee say in their brief to the court. “When a supervisor abuses [his] power by conditioning job benefits on submission to sexual demands,” the law is violated and the company is liable for damages, they argue.

Robert S. Bennett, the president’s private lawyer, took the more restrictive view in his successful bid to have the Jones case dismissed. Since Jones could not show that her job suffered after she rebuffed Clinton’s alleged advances, she had no case, Bennett said.

Burlington’s lawyers echo Bennett’s argument. Ellerth has no case, the company maintains, because she did not “actually suffer a tangible job detriment as a result of her refusal to submit” to Slowik’s advances.

Last week, Jones announced that she would appeal her case to the U.S. 8th Circuit Court of Appeals in St. Louis. Even if the high court rules for Ellerth, the decision will not necessarily revive Jones’ lawsuit and clear the way for a trial against President Clinton.

On the one hand, if the high court rules that a woman need not show that she suffered a “job detriment” after refusing her supervisor’s sexual advances, that opinion could lead the appeals court to reverse Wright and to revive the Jones lawsuit.

On the other hand, Ellerth has much more evidence of harassment by her supervisor. The high court may not help Jones much if it focuses on Slowik’s implied threat that Ellerth must yield to him to advance her career.

Ernest Rossiello, a lawyer for Ellerth, contrasted her suit to that of Jones.

“Ours is a much stronger case on the facts,” he said. “Hers was a one-shot deal and there were no threats. We have a record of pervasive harassment, including touching, and implied threats from her boss,” he said. His client has shunned publicity and has refused nearly all requests for interviews and photos.

But the Jones case has put an even brighter spotlight on the Ellerth case. “If we win, it will help her [Jones] somewhat but ours is really a much stronger case,” Rossiello said.