Court Says 1 Remark Isn’t Sex Harassment

The Supreme Court stressed again Monday that a single crude remark by a supervisor is not enough to trigger a sexual harassment lawsuit.

The justices threw out a discrimination claim brought by a Las Vegas school official who said she was demoted after complaining about her supervisor’s comment.

In an unsigned opinion, the justices sought to clarify the difference between offensive comments and workplace discrimination.

In recent years, many companies--out of fear of lawsuits--have adopted policies that strictly forbid sexist jokes or lewd remarks in the workplace. Those policies have created the perception that the law itself makes such comments illegal.

Federal law makes it illegal for employers to discriminate against an employee on the basis of race, sex, religion or national origin. And for the last 15 years, the court has said that sexual harassment can be considered illegal sex discrimination because it changes the working conditions for the victim.

But the justices have cautioned that sexual harassment refers to a pattern of “severe or pervasive” abuse, not “a mere offensive utterance.” They have said that a supervisor’s “simple teasing [or] offhand comments” do not violate the law, even if an employee might find them irksome and harassing.

The line between harassment and discrimination is not precise, however, and judges often differ on whether an employee’s complaint rises to the level of illegal discrimination.

The liberal-leaning U.S. 9th Circuit Court of Appeals, whose jurisdiction covers the West Coast states, has said it sets a “very low” threshold for allowing such discrimination cases to go to a jury. As long as the employee had a “reasonable belief” that the crude comment amounted to sexual harassment, the case can go to trial, the appeals court said.

But the Supreme Court called that rule dubious and said that the case of Shirley Breeden was not a close call. It should have been dismissed without a trial, the high court ruled unanimously.

In 1994, Breeden was a school administrator in Clark County, Nev., whose job involved reviewing job applications. She met with a male supervisor and another male co-worker to review the files on several applicants. One applicant reportedly told a woman he worked with, “I hear making love to you is like making love to the Grand Canyon.”

After the comment was read aloud, the supervisor said to Breeden, “I don’t know what that means.” The other man said, “Well, I’ll tell you later,” and the two chuckled.

Several days later, Breeden complained to a higher supervisor about what she considered the offensive exchange. Not long afterward, she said her supervisor spoke harshly to her and then had her reassigned to largely clerical duties. She considered the demotion as retaliation for her complaint.

In 1997, she sued the school district under the portion of federal law that forbids employers to punish workers for complaining about “an unlawful employment practice.”

A judge in Las Vegas rejected her claim and ruled for the school system. But last year, the 9th Circuit revived her lawsuit on a 2-1 vote and cleared it to go to a jury.

Judges William C. Canby of Phoenix and Stephen Reinhardt of Los Angeles, speaking for the majority, said jurors should decide whether her demotion was an act of retaliation. In dissent, Judge Ferdinand Fernandez of Pasadena said the case should have been dismissed. “As I see it, Breeden has unreasonably built a whole edifice of alleged harassment and retaliation upon the shaky foundation of a single comment at a single meeting.”

The school district appealed, and without bothering to hear arguments on the issue, the Supreme Court tossed out Breeden’s case.

“No reasonable person could have believed that the single incident recounted above violated” federal antidiscrimination law, the court said in Clark County vs. Breeden, 00-866. “Her supervisor’s comment and . . . the chuckling are at worst an isolated incident that cannot remotely be considered ‘extremely serious,’ as our [sexual harassment] cases require.”

The justices did not consider the case as setting a new rule but as restating previous rulings. There were no dissents.