Justices Give Expansive View of Sex Harassment

Supreme Court justices, struggling to define what is illegal sexual harassment, suggested Wednesday that a supervisor’s request for sex from a female subordinate probably violates the law even if she ignores him.

Regarded as one of the most important sexual harassment issues to come to the court in years, the case could determine whether a threat by a supervisor is harassment even if it is not followed up with action.

Justice David H. Souter asked a lawyer defending Burlington Industries from a sexual harassment charge: “Suppose he says, ‘You are going nowhere in this company unless you grant sexual favors to me.’ What could be more hostile than that?” Souter was referring to a form of sexual harassment found to exist if there is a “hostile environment” in the workplace.

The company, based in Greensboro, N.C., maintains that a supervisor’s “unfulfilled threats” to demote a woman who resisted his advances did not violate the law. “The supervisor has done nothing except say some words,” said Chicago attorney James J. Casey, representing the textile maker.

But most of the justices disagreed in their comments and questions during the hourlong argument.

Justice Anthony M. Kennedy compared sexual harassment to racial harassment. “Suppose he says, “I’m not going to promote you because you are Asian or Hispanic. Is there a violation there?” Kennedy asked.

No, Casey replied. “There is no harm,” he said, unless the supervisor denies a promotion for that reason.

“You mean despite the insult or personal hurt?” Kennedy responded.

The justices heard the case (Burlington Industries vs. Ellerth, 97-569) to resolve a fundamental dispute over what is illegal sexual harassment.

Some jurists, including the judge who dismissed the Paula Corbin Jones lawsuit against President Clinton, have said that female workers who are sexually harassed by their supervisors must also show that their job status changed as a result of the abuse.

Lawyers for Kimberly Ellerth, the woman suing Burlington for incidents that occurred in the company’s Chicago offices, said that a supervisor’s demands for sex violate the law even when the woman’s job status is otherwise unaffected.

The ruling, due by late June, is likely to have a direct effect on thousands of future claims. If the court sides with Burlington, employees who say that they were harassed on the job will probably be blocked from suing unless they can show that they suffered a demotion, a loss of promotion or some other “tangible job detriment.”

However, if the court rules for Ellerth, it will put companies on notice that they could be forced to pay large liability judgments for harassing comments by their supervisors. Burlington said that it had a firm policy against sexual harassment. Nonetheless, Theodore Slowik, a company vice president for sales, repeatedly suggested that Ellerth, a young marketing assistant, should have sex with him, according to her sworn complaint.

The company’s lawyer said that Burlington should not be liable because its top officials did not know of or approve of such harassment. But that defense was quickly undermined by Justice John Paul Stevens. He noted that Slowik himself was a top official, a vice president for sales.

“Why isn’t that notice to the company?” Stevens asked.

Ernest Rossiello, a lawyer for Ellerth, agreed. In employer law, companies are responsible for the actions of their senior officials.

But those views were not unanimous on the court. The justices sounded divided on the issue and somewhat confused by the law. Justice Antonin Scalia, for example, insisted that--unless the woman suffered discrimination in her job status--she had no claim.

“If he pulls her aside and says, ‘Come over to the water cooler. I want to tell you something.’ But he takes no action against her,” Scalia said. How could that violate the job discrimination laws? he asked.