High Court Holds Employers to Strict Harassment Rules
The Supreme Court put the nation’s employers on notice Friday that they can be forced to pay damages to their workers who are sexually harassed by a low-level supervisor, even if they knew nothing about the harassment and the victim failed to complain.
In a pair of rulings, the court said the general rule is that companies and public employers are automatically liable for a supervisor’s sexual harassment.
Until now, many judges have said that a company cannot be blamed if a supervisor, ignoring its policies, chooses to grab, proposition or otherwise harass a subordinate.
The rulings stand in contrast to one earlier this week that shields school districts from responsibility for sexual abuse of students.
In the short term, the rulings--handed down as the court ended its current term--are likely to increase the number of sexual harassment lawsuits, already one of the fastest-growing areas of law. They also may increase the chances that Paula Corbin Jones’ sexual harassment lawsuit against President Clinton could go to trial.
Corporate lawyers and women’s rights advocates predicted that over time, zero-tolerance policies in the workplace may replace lawsuits.
“These decisions create real incentives for employers to adopt strong policies against harassment,” said Martha F. Davis of the National Organization for Women’s Legal Defense Fund in New York. “I think this will help everyone resolve these issues in the workplace rather than in court.”
Robin S. Conrad, an attorney for the U.S. Chamber of Commerce, agreed that good corporate policing will head off lawsuits.
“We like this because it clarifies the law,” she said. “It sets a clear, bright-line standard. It says employers must have a strong policy against sexual harassment. It must be communicated to the employees, and they need an effective complaint procedure.”
The rulings contain some good news for employers. If sued, companies sometimes can successfully defend themselves by proving that they have a strong policy against sexual harassment and that they respond quickly to complaints. They must also show that the victim failed to complain.
But the burden of proof remains on employers. The court in effect said that companies must prove their innocence if a worker suffers harassment on the job. When in doubt, the company is liable, the justices said on a 7-2 vote.
In California, the court’s strict new approach to liability may have less impact than elsewhere, some lawyers said.
“Strict liability has been the rule under California state law,” said Raquelle de le Rocha, a Los Angeles lawyer who represents employers. Companies can be forced to pay damages for a supervisor’s harassment, she said, even when higher officials were unaware of it.
The Supreme Court’s strong stand against sexual harassment in the workplace is in marked contrast to the court’s 5-4 decision earlier this week on school districts’ liability when a teacher sexually abuses a student.
As a matter of common sense, the two rulings are hard to reconcile.
They interpret different laws, however. The school case focused on Title IX, part of the federal education aid law. Justices Sandra Day O’Connor and Anthony M. Kennedy, who were in the majority both times, characterized the school law as designed to change “policies” in areas such as women’s sports. Congress did not intend to open the door to money claims against school systems, they said.
By contrast, the workplace discrimination law specifically allows money lawsuits against employers. In 1991, Congress amended the Civil Rights Act to say that victims of job discrimination can win as much as $300,000 in damages from their employers.
That new law, combined with the televised allegations of sexual harassment against Clarence Thomas, then a nominee to the Supreme Court in the same year, spurred a steep increase in the number of complaints and lawsuits. The U.S. Equal Employment Opportunity Commission said that it received nearly 16,000 new complaints of on-the-job sexual harassment last year, more than double the number from 1991.
But the lower courts have been divided on how to handle those claims. Most come from women allegedly harassed by a supervisor without the knowledge of top company officials.
This spring, the Supreme Court heard two cases in an effort to clarify the law.
One came from Beth Ann Faragher, who had worked as a beach lifeguard for the city of Boca Raton, Fla. After leaving her job, she filed a harassment suit saying that she and other women had been subjected to regular lewd comments from two beach supervisors. She had been grabbed and tackled in the sand, listened to comments about her breasts and heard repeated requests for oral sex.
In suing the city, Faragher claimed that her supervisors had used the power of their positions to harass her. A federal judge agreed, but the U.S. Court of Appeals in Atlanta threw out the judgment against the city. It ruled that the supervisors were on a “frolic” of their own, unrelated to their duties. For this reason, it said, the employer should not be liable for the supervisors’ misconduct.
The Supreme Court reversed that ruling (Faragher vs. Boca Raton, 97-282) and said that the city must pay for this “misuse of supervisory authority.” City officials had not “exercised reasonable care to prevent the supervisors’ harassing conduct” at the beach, said Justice David H. Souter. They had not adopted a strong policy against harassment. They did not tell Faragher and others of a complaint procedure. And the rampant abuse at the beach should have been detected sooner, he concluded.
The second case came from a Chicago woman whose boss also made repeated comments about sex. He urged her to wear shorter skirts and advised her that she was not “loose enough” to suit him. “You know, Kim, I could make your life very hard or very easy,” sales manager Ted Slowik allegedly told Kimberly Ellerth.
After a year, Ellerth quit and sued the company, Burlington Industries. A federal judge threw out her claim, however, because she did not suffer a “tangible job consequence,” such as a demotion, for refusing her supervisor’s advances.
The U.S. Court of Appeals in Chicago voted to revive Ellerth’s lawsuit, holding Burlington liable for the supervisor’s harassment even though no specific job consequence was involved.
The high court sided with Ellerth and revived her claim for a trial in the case (Burlington vs. Ellerth, 97-569). “Although Ellerth has not alleged she suffered a tangible job employment action at the hands of Slowik,” Kennedy noted, “Burlington is still subject to vicarious liability for Slowik’s action.” To defend itself, the company must prove that it “exercised reasonable care” to prevent harassment in the workplace, he said.
That decision may well revive the nation’s best-known claim of sexual harassment: Jones’ lawsuit against Clinton.
In April, a federal judge in Arkansas threw out Jones’ lawsuit before trial because she had not suffered a “tangible job consequence” for rebuffing the alleged advances of Clinton, then governor of Arkansas.
But the Supreme Court’s opinion in Ellerth’s case makes clear that harassment plaintiffs can win even without evidence of a “tangible job consequence.” Lawyers for Jones have asked the U.S. Court of Appeals in St. Louis to revive her suit.
“The court’s decision affirms what the Paula Jones legal team has been stating since we took over the case last October: that regardless of tangible job detriment, sexual harassment in the form of unwelcome advances . . . is sufficient for women to receive remedies in a court of law,” said John Whitehead, president of the conservative Rutherford Institute, which funded the suit.
Martha Davis, the NOW Legal Defense Fund lawyer, agreed. “I think in terms of the law, it really helps her [Jones]. It increases the likelihood the 8th Circuit [Court of Appeals] will send it back for a trial.”
Robert S. Bennett, the president’s lawyer in the case, disputed that assessment. “The facts in the Burlington case are clearly distinguishable from the Jones case,” he said in a statement. He added that Jones did not allege “severe and pervasive conduct” by her supervisor, as required by law.
But significantly, the court stressed Friday, the law requires evidence only of “severe or pervasive” harassment. While Jones did not claim that she suffered pervasive harassment from Clinton, her lawyers said that a onetime incident of severe harassment is enough to go to trial.
The majority opinions were signed by Chief Justice William H. Rehnquist and Justices John Paul Stevens, Sandra Day O’Connor and Stephen G. Breyer as well as Souter and Kennedy. Justice Ruth Bader Ginsburg added only a short statement saying that she agreed with the outcome.
Justices Clarence Thomas and Antonin Scalia dissented. “The court manufactures a rule” that wrongly holds employers liable, even if they have a good policy against harassment and the plaintiff never complains, Thomas said. He argued that companies should not be held liable unless plaintiffs can prove that officials were “negligent” in permitting the on-the-job harassment.
