Court May Give Nod To Harassment Suit

Kimberly Ellerth steadily refused the sexual advances of a supervisor. But she was never demoted, fired, or suffered a cut in pay. As part of a two-person sales team in Chicago, she was even promoted in due course.

Still, after 14 months of unwanted touching, suggestive comments, and ogling, Ms. Ellerth resigned and slapped a sexual-harassment suit on her employer, Burlington Industries, a textile manufacturer.

Should Ellerth be allowed to make a harassment claim - even though she was not subject to specific harmful retaliation at work, the current legal standard?

That was the question before the Supreme Court yesterday in the most significant of four sexual-harassment cases taken by the high court this year. If questions by the justices are any indication of the outcome, it appears a majority of the court believes Ellerth should be allowed to sue.

By itself, the Ellerth case is important because the justices could decide that any and all forms of sexual advances in the workplace are grounds for a suit - not just cases where threats of harm have been followed by actions such as firing.

But Ellerth is getting an added bounce in the public mind: A decision in her favor could breath new life into the Paula Jones case against President Clinton. A judge has ruled that Ms. Jones did not suffer harm on the job. Also, Jones alleges that then-Governor Clinton mentioned the name of her boss just prior to asking for sex - opening up the possibility of a quid pro quo suit when a higher ranking person makes sexual advances in a coercive way.

In argument yesterday, Justice David Souter focused on the role of the supervisor, picking at the logic of Burlington's lawyer James Casey, who argued a one-time act by a supervisor doesn't count as harassment because "all he has done is to speak words [in making a proposition]."

"But why not?" asked Justice Souter. If a boss calls a woman into his office and says she won't be promoted without granting sexual favors, "why is that not harassment?" he said. "We are talking about someone with power to change the entire world of the employee. What is clearer than that?"

Until this year, the high court had heard only two sexual-harassment cases in all its history. Last month, in an opinion authored by Justice Antonin Scalia, the court spelled out clearly that "same sex" harassment in the workplace is illegal.

But the Ellerth case cuts a wider swath. "It could mean that the mere fact of a proposition will be sufficient to make a harassment claim," says Jay Grenig, a legal scholar at the University of Wisconsin. If the court decides in her favor, "we'd see a lot more cases, an enormous expansion of liability on the part of companies."

The facts in the case are as follows: Ellerth began working for Burlington Industries in 1993. From the start, her boss in New York, the vice-president of sales, began making suggestive remarks. At one after-hours meeting, he allegedly said, "Kim, I could make your job very hard or very easy at Burlington."

There are two basic legal theories under which Ellerth can sue. The first, a quid pro quo suit, always involves a supervisor's aggression, and under it a company is liable so long as there's "tangible result" of economic harm. The second, the hostile workplace environment test, relates to the behavior of a range of fellow employees.

Burlington's lawyer doesn't dispute the facts but argues that because the supervisor never acted on his threat, the company isn't liable. Also, he points out, Ellerth never filed a complaint under a clearly stated if ambiguously applied company policy against harassment. She filed her suit only after she resigned.

But Justice John Paul Stevens noted that if a supervisor becomes aware of notorious behavior, the company is liable. Then, he asked, why is it not liable when the supervisor himself is the perpetrator?

In ruling, the high court could say a threat alone is enough to bring suit. Or it could point out that Burlington had a harassment policy, that Ellerth did not use, and that the company can't be liable for threats.

Or, the court could carve out some middle ground. Vicki Schultz of the Yale University Law School says the court could find a new standard in which a plaintiff must show that a threat had "real consequences" - but that the standard of those consequences can be lower.