Court Taking Workers Out of Harm’s Way

It is not what you might have predicted from a conservative Supreme Court.

In a final flurry of rulings, the high court last week pressed ahead the quiet revolution in the American workplace, where boorish behavior and crude sexual advances are going the way of smoking in the office.

The compromise resolution of the two sexual harassment cases may symbolize the emerging character of the high court. The outcome in these cases, probably the most difficult of the term, avoided the ideological polarization that was the norm until about six years ago.

In four major decisions concerning job discrimination, the court expanded the reach of the civil rights laws and left employers subject to huge damage verdicts.

Victims of sexual harassment were told they could win damage suits against a company even if they suffered no direct job losses and had not complained about unwanted advances.

Companies were told they must rid their ranks of abusive supervisors or pay the price for the abuse. As one justice put it, the burden of stopping workplace harassment must now be seen as “one of the costs of doing business.”

These legal protections are not limited to women who are harassed by men. Such protection also covers same-sex harassment, the court said earlier this year.

The justices also opened the door to a new era of anti-discrimination protection for the millions of Americans who have an impairment or a disease. In the first decision interpreting the Americans With Disabilities Act of 1990, the court signaled it will extend the measure broadly, covering not only those who are truly disabled but also those who have conditions that could prove disabling.

In a test case from Maine, the court ruled that a woman infected with the virus that causes AIDS is fully protected by the law, even though she has no symptoms of the disease.

Surprised and delighted, civil rights lawyers and women’s rights advocates pronounced the court’s term a success.

“It is a welcome change from previous years, when the court and Congress often seemed at war over civil rights laws,” said Steven R. Shapiro, national legal director for the American Civil Liberties Union. “The price of discrimination has just gone up,” he added.

The justices “have put sexual harassment into the category of wrongs that employers just cannot tolerate, like stealing from the company,” said Abby Leibman, executive director of the California Women’s Law Center in Los Angeles.

Plaintiffs’ lawyers attending a national conference in Monterey “danced in the aisles” Friday when the pair of harassment rulings were announced, said Cliff Palefsky, a San Francisco attorney.

“In this field, big victories don’t always happen,” he said. “These decisions are going to compel employers to take affirmative steps to prevent harassment in the workplace.”

Creating a bonanza for trial lawyers was not the court’s goal, however. The justices said they hope to prevent discrimination and harassment in the first place. As Justice David H. Souter put it, the “primary objective” of the federal law “is not to provide redress [for discrimination victims] but to avoid harm.”

To avoid harm for workers and employers, the justices announced a new set of rules for handling claims of sexual harassment. On the one hand, companies are liable for a worker’s harassment by a supervising employee, even if officials knew nothing about it. However, employers can also successfully defend themselves if they prove they had a strong and effective policy against sexual harassment.

Throughout the 1980s, the high court was divided into two factions: a powerful, liberal bloc led by aging Justices William Brennan and Thurgood Marshall, and an equally staunch, if younger, conservative faction, led by then-Justice William H. Rehnquist and, later, Antonin Scalia. The two sides differed bitterly and fought repeatedly over such charged issues as the death penalty, abortion and affirmative action. In the court’s end-of-the year opinions, both sides would fire verbal volleys across the divide.

Since the departure of Brennan in 1990 and Marshall in 1991, the ideological fervor has cooled and given way to a more even-tempered, pragmatic court. The results tend to reflect the moderate-to-conservative views of justices such as Anthony M. Kennedy and Sandra Day O’Connor, both appointees of President Reagan.

Both fail to satisfy conservative purists such as Scalia. Indeed, Scalia seems to reserve his angriest dissents for attacking O’Connor and Kennedy.

For true liberals, however, the court is even more disappointing. No one has filled the void left by Brennan and Marshall.

President Clinton’s two appointees, Justices Ruth Bader Ginsburg and Stephen G. Breyer, have lived up to their advance billing as moderate liberals. Both also play the role of judicial technocrats, more interested in probing procedural technicalities than on focusing on broader issues of justice.

The lack of a liberal voice on the court is most apparent in law enforcement cases. For example, when faced with the question of whether a Sacramento County police department could be sued for a reckless, high-speed chase that resulted in the death of 16-year-old motorcyclist, all nine justices voted to shield law enforcement agencies.

In California, the liberal-leaning U.S. 9th Circuit Court of Appeals would have allowed a jury to decide whether the police acted with “reckless disregard” for safety when they undertook a 100-mph chase through city streets. No one spoke for that view on the Supreme Court.

On the issue of sexual harassment, however, the court’s ideological amiability helped forge a workable compromise. Seven of the justices--all but Scalia and Clarence Thomas--agreed on the outcome announced Friday, ranging from Chief Justice Rehnquist on the right, to Breyer and John Paul Stevens on the left.

“This is what judges are supposed to do. They saw a serious problem in the law, and they invented a thoughtful way to solve it,” New York University Law Professor Burt Neuborne said Saturday at a conference reviewing the court’s term.

Still, the outcome in the workplace harassment cases also seemed to undercut the ruling in a related school case announced Monday. By a 5-4 majority in an opinion written by O’Connor, the court shielded school districts from being sued for damages by a student who was sexually abused by a teacher.

By week’s end, the National Women’s Law Center in Washington had sent a letter to Clinton and congressional leaders urging them to revise the federal education law at issue in the case to allow such lawsuits.

The court’s decision in the school case “sends exactly the wrong message. The less vigilant you are [toward sexual abuse], the better off you are,” said Leibman, the attorney for the Los Angeles-based law center.

By contrast, the court’s workplace rulings put the onus squarely on employers to stamp out sexual abuse by supervisors.

“Any employer that does not have a properly drafted anti-sexual harassment policy is crazy,” said Paul Grossman, a Los Angeles attorney who represents some of California’s largest employers. Others added that a “paper policy” will not suffice. If sued, a company must prove that it did whatever it could to prevent harassment and that it responded quickly to any hints of trouble.

What is illegal sexual harassment? It is not a bad joke or crude comment, the justices said. Common sense has not been repealed. Mere “discourtesy or rudeness” is not harassment, they explained.

A victim must show she suffered “severe or pervasive” abuse from a supervisor, conduct that is so “offensive that a reasonable person would find it hostile or abusive,” the court said.

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.”

One veteran employment law expert said he was taken aback by the fast pace of change in the law governing the workplace.

“It’s truly dramatic when you think back just 25 years. I filed the first big discrimination suit against AT&T; in 1973, and the issue was ‘men’s’ jobs and ‘women’s’ jobs,” said William J. Kilberg, a Washington lawyer. “That’s how they were listing in want ads. Now, we’re arguing the fine points of liability for harassment.”

On behalf of the National Assn. of Manufacturers, Kilberg had urged the justices to shield employers for harassment they were unaware of. Nonetheless, he said he was pleased the law had been clarified.

“It is not what we wanted, but we can live with it. It gives employers a road map. It tells us where we have to go.”

Times staff writer Davan Maharaj contributed to this report.

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Of Powers and Protections

Here are the major rulings of the Supreme Court’s just-completed 1997-98 term:

* Sex Harassment: Employers who did not know their supervisors were sexually harassing employees still can be held legally responsible for such misconduct, and on-the-job sexual harassment also can be illegal when the offender and victim are the same sex. But school districts are not liable when teachers sexually harass or abuse students unless some administrator knew about, and ignored, the misconduct.

* Privilege: Lawyer-client confidentiality extends beyond a client’s death.

* Disability: People with HIV are protected by the Americans With Disabilities Act even if they have no visible AIDS symptoms. Also, state prison inmates are protected by the act.

* Veto: The line-item veto law Congress passed to give the president the power to cancel specific items in spending and tax laws is unconstitutional.

* Arts: The government can take standards of decency into consideration when deciding which artists will receive federal arts grants.

* Seizures: Forfeitures aimed at punishing someone are unconstitutional fines if they are “grossly disproportional to the gravity of the offense.”

* Police: Police and their employers are not liable for injuries from high-speed car chases unless their conduct “shocks the conscience.”

* Ellis Island: Most of it is in New Jersey, not New York.

* TV Debates: State-run public television stations need not invite all ballot-qualified candidates to political debates they sponsor.

* Evidence: The military’s ban on the use of polygraph test results in criminal trials does not violate defendants’ rights.

* Immunity: Local lawmakers are immune from being sued over the laws they enact, even if they had discriminatory motives.

* Credit Unions: Federal regulators wrongly let federally chartered credit unions enroll members beyond traditional membership pools.

Source: Associated Press