Clarifying Laws on Harassment

This week the Supreme Court will begin a groundbreaking effort to define and clarify an emerging, confused area of United States law: sexual harassment.

Considering the volume of news generated by harassment allegations in recent years, many Americans may think this a settled area of jurisprudence. Since Anita Hill accused then-Supreme Court nominee Clarence Thomas of improper advances in 1991, federal harassment claims have tripled. Sixty such cases are now filed every working day.

Yet the law dealing with sexual harassment has been unclear and unevenly applied since its beginnings in the landmark Civil Rights Act of 1964. Before this year, the US Supreme Court has heard only two sexual-harassment cases. Neither ruling spelled out what harassment is, or who is liable for damages stemming from it.

Now that is changing. The high court this year took an unprecedented four harassment cases - two are being argued this week - that will likely clarify the law and result in far-ranging effects for millions of men and women in the workplace, and for their employers as well.

"There is definite confusion out there about the legal standards that apply," says Nancy Perkins of the law firm of Arnold and Porter here, who filed Supreme Court briefs on behalf of the National Women's Law Center. "The justices seem to want to clear it up all across the board."

The court will ask, for example, whether an individual even needs to experience economic or job-related harm to bring a suit. That question bears directly on allegations against President Clinton by Paula Jones and Katherine Willey - though none of the Supreme Court cases was filed, or accepted as a result of the various allegations besetting the White House.

The court will also look at the level of responsibility an organization must take for the behavior of its employees. Must top executives know of wrong behavior before suit can be brought, or is reporting to a mid-level supervisor enough? Is a school system liable for any teacher who sexually exploits a student?

Which way will it go?

It's not clear which way the high court will rule in these important areas. One reason: In the area of sexual misbehavior, justices do not have predictable views based on whether they are liberal or conservative.

Most sexual-harassment law has been developed by liberal legal theorists. Yet the generally conservative Chief Justice William Rehnquist wrote the first opinion on harassment in 1986, allowing cases to move forward. Justice Clarence Thomas, a strong conservative, joined the opinion in a 1989 ruling that sharpened the law to forbid sexual advances if they led to a hostile work environment. Just this term, the most conservative member of the court, Justice Antonin Scalia, wrote an opinion agreed to by the entire court in the Oncale "same sex" case, which allows members of the same sex to bring federal suit in cases of sexual abuse.

Essentially, there are two types of federal harassment claims. In the first, sexual advances are unlawful if they create an abusive or hostile work environment. In the second, the job status of the victim must be adversely affected.

The case this term that relates to current White House troubles and could further define sexual harassment as a form of unlawful discrimination will be heard in late April. It deals with a woman, Katherine Ellerth, who alleges a pattern of harassment from the vice president of her company, including unwanted touching, and a comment that she was not "loose enough."

Ms. Ellerth rebuffed the advances but was promoted nonetheless. How the high court views her charge of harassment could help answer the question of whether unwanted advances constitute discrimination, even if rebuffing the advances doesn't harm job prospects.

The importance of this case to Mr. Clinton stems from the fact that his lawyers argue that whatever occurred between him and Paula Jones, she did not subsequently suffer lack of career advancement. (Her lawyers argue otherwise.) Kathleen Willey, meanwhile alleges that the president groped her, yet says that her White House career did not suffer when she rebuffed him.

This week

This week the court also takes up the question of when an institution is liable for harassment. One case, Gebser v. Lago Vista, involves allegations that a high-school teacher lured a 14-year-old student into a relationship. The court must decide whether to uphold a lower-court ruling that would seem to require a student to inform a top-level official before suit can be brought.

Another case deals with a lifeguard at Boca Raton, Fla., who argues a pattern of abuse over years by her supervisors. The city had a sexual-harassment policy, but it had not been communicated in a serious way to city employees. Again, must the abused person tell a high official? Can a city be liable for the actions of its low-level supervisors if those officials do not report abuse?

Whether the high court will be able to draw clearer lines in an area of human behavior as difficult and contradictory as sexual misconduct is questionable, say some experts. "It's not going to be easy to make distinctions between behavior that is just bad manners and actionable harassment," says law professor Jay Grenig of the Marquette University law school in Milwaukee.