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Court Asked To Define Sex Harassment in the Workplace

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WASHINGTON--In a case with as much potential impact for schools as for other employers, the U.S. Supreme Court last week tackled the issue of what constitutes illegal sexual harassment in the workplace.

The High Court heard arguments Oct. 13 in a sex-discrimination case from Tennessee that may result in a better definition of what kind of conduct creates a "hostile'' working environment that violates Title VII of the Civil Rights Act of 1964.

Like the rest of American society, schools and school administrators have paid much more attention to the issue in recent years. Adding to concerns about liability for harassment of their employees, schools have also learned that they can be held liable for sexual harassment of students by teachers or other students.

August W. Steinhilber, the general counsel of the National School Boards Association, said school officials need more direction from the High Court.

"The N.S.B.A. has been running training programs on sexual harassment for school districts for the last four to five years,'' he said. "If we have more guidance so we can train our people about what they can and cannot do, it's welcome.''

The case of Harris v. Forklift Systems Inc. (Case No. 92-1168) addresses the question of when sex-based comments or jokes cross the line and become illegal sexual harassment.

Teresa Harris was a manager for a Nashville truck-leasing company, where her male boss allegedly made frequent remarks to her such as, "You're a woman, what do you know?'' The boss also allegedly made female employees retrieve coins from his front pants pockets and allegedly once suggested to Ms. Harris that they "go to the Holiday Inn to negotiate your raise.''

When Ms. Harris sued under Title VII, a federal magistrate found the boss's conduct "vulgar'' and "demeaning'' but said it was not severe enough to create a "hostile working environment.'' He dismissed the suit.

Defining 'Hostile' Workplace

The High Court first extended the scope of sex discrimination to include sexual harassment in a unanimous 1986 decision in Meritor Savings Bank v. Vinson. In that case, the Court said that Title VII bars not only demands for sexual favors in return for promotions or job security, but also conduct that creates a "hostile working environment.''

The Court said a hostile environment is created by harassment severe or pervasive enough to alter the conditions of a victim's employment.

Lower federal courts have used different tests for applying the Meritor ruling. In the Harris case, the U.S. Court of Appeals for the Sixth Circuit required the victim to prove she had suffered psychological injury in order to win her suit. The appeals court affirmed a decision that said Ms. Harris did not prove such injury.

Jeffrey P. Minear, a U.S. Justice Department lawyer, last week told the Justices that harassment victims should not have to show psychological injury to win a Title VII case.

Instead, he argued, the standard should be whether the objectionable conduct would affect a "reasonable'' victim's job performance--the standard adopted by the Equal Employment Opportunity Commission.

Stanley M. Cherneau, the lawyer for Forklift Systems, said he agreed with the E.E.O.C. standard, but argued that the federal magistrate in this case properly ruled that the work performance of a reasonable person would not have been affected by the boss's conduct. Sexual-harassment charges require a case-by-case examination of the facts, he said.

Several Justices suggested that the standard should be based on a definition of a "reasonable employer'' instead of the sensibilities of a "reasonable employee.'' Mr. Steinhilber of the N.S.B.A. applauded that concept.

"We need some kind of a standard on which employers are going to be judged, not just a subjective standard based on some individual who feels aggrieved,'' he said.

The Court also heard arguments last week in a case that will determine whether the Civil Rights Act of 1991 can be applied retroactively to cases that were pending at the time of its enactment, an issue on which federal courts of appeals have issued contradictory rulings.

The law overturned several Supreme Court rulings that had limited the scope of civil-rights protections.

U.S. Solicitor General Drew S. Days 3rd told the justices that the law should be retroactive. The consolidated cases are Landgraf v. USI Film Products (No. 92-757) and Rivers v. Roadway Express Inc. (No. 92-938).

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