Justices Weigh Liability, Sex Harassment

Tourists who visited the Supreme Court on Wednesday may not have known that they had come upon a debate on the nation’s hottest legal topic: sexual harassment.

There was no explicit talk of grabbing, groping and fondling. No gutter words were uttered. Instead, for two hours, the lawyers and justices spoke mostly of “strict liability” and “agency principles” and “model complaint procedures.”

In their own way, however, the justices were grappling with a multimillion-dollar question of sexual harassment law: Who should pay for it? Should companies and school districts be forced to pay for the sexual misconduct of their supervisory employees?

Women’s rights advocates, joined by Clinton administration lawyers, say that sexual harassment will not be rooted out of the workplace and the schools unless companies and school systems are held liable for it. Since they put supervisors in their jobs and teachers in their classrooms, they should be forced to pay for their abuses, lawyers for the victims say.

Big-business lawyers maintain that this is unfair and could impose huge costs on American firms. The U.S. Chamber of Commerce says that employers should be held liable only when top company officials “knew or should have known of the harassment” and did nothing to stop it.

Two cases were argued before the court Wednesday. One concerned a former Florida lifeguard who said that she suffered repeated vulgar, sexist comments from two beach supervisors. She did not complain of this harassment to city officials but sued the city of Boca Raton after she quit.

The second was filed by a 15-year-old Texas schoolgirl after a police officer found her and a teacher having sex in a car. She said that she was too frightened to stop the secret affair or to complain to school officials about it. After the teacher was arrested, she and her mother sought damages from the Lago Vista school district near Austin.

A lawyer for the school district said that a single verdict in favor of a schoolgirl could take away its entire $1.6-million annual budget. Faced with that threat, school officials would probably turn down federal funds, he said, and thereby escape liability under federal law.

In their comments and questions, the justices seemed to side with the employers and the school districts, not the female victims.

“Don’t you think every employee in the country knows that if they’re mistreated they can complain to somebody higher up the ladder?” asked Justice Sandra Day O’Connor. The law should not be written for the “totally ignorant,” she said. “Reasonable people would know and understand you can complain.”

Justices Antonin Scalia and Ruth Bader Ginsburg expressed the same point about the Texas schoolgirl, whose affair with the teacher began when she was 14.

“And she didn’t know there were people she could complain to, like the principal?” asked a skeptical Scalia. Ginsburg noted that other girls had complained to their parents about the male teacher.

She also wondered why the school district should be held liable for an affair between a teacher and a student. “Here, nobody knew about this. How could a school district know about something like this?” she asked.

The lifeguard’s case might be different, Ginsburg suggested, because several women endured “leering, groping and foul language” from two supervisors in public. “Nothing was secret,” she said.

But Scalia questioned why city hall should be held liable for it. “You mean this was so obvious [that] the employer must have known?” he asked the woman’s lawyer. “The employer was downtown. This was going on at the beach.”

The lawyer for the former lifeguard, Beth Ann Faragher, said that the high court should not “reward ostrich-like behavior” and make employers immune from liability just because they knew nothing of the abusive behavior of their supervisory personnel.

“It’s hear no evil, see no evil, pay no lawsuit,” said attorney William R. Amlong of Ft. Lauderdale.

While the city had an official policy against sexual harassment, Amlong said, it did nothing to enforce it and officials did not tell Faragher how she could complain when mistreated.

Suppose a company had a model policy, and new employees were given “a name and telephone number” where they could complain, Ginsburg said. If so, would that employer be immune from liability in the future?

No, the lawyer replied. Not unless the complaint policy had been used effectively by other women who had been abused.

“That sounds like strict liability!” Chief Justice William H. Rehnquist and Justice Anthony M. Kennedy interjected simultaneously.

The members of the court made clear that they do not want to hold employers automatically liable for all sexual harassment in the workplace, even when a company has done everything to prevent it and the victim has not complained.

However, some justices appeared to search for a middle ground between holding employers always liable or never liable for abuse by low-level supervisors.

In 1992, Faragher sued the city under Title VII of the Civil Rights Act, which makes it illegal for an employer to “discriminate against any individual . . . because of sex.” A judge found the city liable because the sexual harassment was so “pervasive” that the city should have known about it. He awarded her $10,000 in damages from the two supervisors and $1 from the city.

The U.S. Court of Appeals in Atlanta overturned the $1 in damages on grounds that the city had no knowledge of the harassment. The Texas schoolgirl, Alida Gebser, fared even worse in the lower courts, which threw out her lawsuit before trial.

The justices will meet privately on Friday to vote on the cases (Faragher vs. City of Boca Raton, 97-282, and Gebser vs. Lago Vista, 96-1866). They will issue rulings by the end of June.