The Harassment Muddle

Sexual discrimination in the workplace was outlawed by the Civil Rights Act of 1964, and a Supreme Court ruling in 1986 held that sexual harassment in the workplace is a form of discrimination. But what exactly constitutes harassment? Lower and appellate courts have not given consistent answers, with the result that case law in this important area is something of a muddle. But the Supreme Court could change matters, and society would be better for it.

The court will rule later this year on a suit brought against Burlington Industries by a former employee and could use the opportunity to try to impose some order on this chaos. A narrow ruling would leave some vexing issues unresolved. What ultimately may be needed is legislation that more precisely sets the boundaries of impermissible sexual behavior in the workplace.

Kimberly Ellerth, the former Burlington employee, alleges that over 14 months she was subjected on 130 occasions to sexual comments, propositions and touching by her supervisor. Ellerth alleges that she was threatened with demotion or firing if she did not give in to the supervisor’s sexual advances. At no point apparently did Ellerth make an official complaint to the company about this treatment. Neither does she contend that she was denied promotion for rebuffing the advances.

One of the questions before the court is whether Burlington should be liable for damages because of the behavior of one of its supervisors even though it was never informed of the harassment. Another question is whether the supervisor’s threat to retaliate against her was harmful even if it was not carried out.

Appeals courts have held that a supervisor’s request for sex by itself violates the law, even if rejection of that demand leaves an employee’s job status unaffected. If the Supreme Court upholds this view in the Ellerth case, it’s possible that Paula Jones’ suit against President Clinton could be reinstated. The fundamental claim of Jones, however, did not rest on a threat to job status following an alleged sexual advance. Such a purported threat is a key part of Ellerth’s suit against Burlington.

Most people have a pretty clear idea of what constitutes unacceptable sexual behavior in the workplace. But does every loutish remark or unappreciated joke mean that someone has been made a victim of sexual harassment? The law needs to be consistent and uniformly applied. For that to happen, either the courts or Congress will have to provide clearer guidance than is found in current law.