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Clarity on Sex Harassment

The U.S. Supreme Court closed its term last week by issuing some sensible guidance in one of the most highly charged areas of employment law, sexual harassment. The ruling drew praise from business and women’s groups alike.

Most people have a pretty clear idea of what constitutes loutish behavior in the office or on the factory line. But consensus has been elusive on when gross jokes and comments or sexual solicitations rise to the level of harassment and when employers become financially liable for the behavior of their employees. Appellate courts have spun out a variety of conflicting rules and tests in recent years, setting the stage for the high court’s action Friday.

In a pair of 7-2 decisions, the court made it clear that supervisors can indeed be held accountable. Both cases turn on a provision of the 1964 Civil Rights Act, which prohibits workplace discrimination on the basis of race, gender or ethnicity, and an earlier high court decision holding that sexual harassment in the workplace is a form of discrimination.

In one case, involving Burlington Industries Inc., the justices ruled that employers can be held legally responsible when a supervisor demands sex from a subordinate, even if the worker rejects the overture and suffers no job-related consequences. The Clinton administration argued in friend-of-the-court briefs for the harassed employee, though this ruling might, ironically, help revive the claim by Paula Corbin Jones that an alleged sexual overture made by President Clinton when he was Arkansas governor constituted harassment. Earlier this year, a federal judge threw out Jones’ claim on the ground that her job was unaffected.

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In the other dispute, involving a suit by a former Florida lifeguard against the city of Boca Raton, the court said an employer might have to pay damages when a supervisor subjects a lower-level employee to a “hostile work environment,” even if the employer doesn’t know about the harassment.

In April, the court held that the Civil Rights Act covers same-sex harassment, but it drew a line between simple teasing and hostile conduct.

The court’s clarity is in welcome contrast to its often tentative and piecemeal decisions in some other areas of the law. Taken together, these decisions reveal an unusual degree of consensus on what constitutes sexual harassment on the job--and what to do about it.


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