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MARGARET WARNER: In 1993, Kimberly Ellerth applied for a marketing job at Burlington Industries in Chicago. Burlington is a textile maker with headquarters in Greensboro, North Carolina. Ellerth was interviewed by Theodore Slowik, vice president of sales and marketing, for a job as a merchandising assistant. Ellerth charges that during the interview, Slowik asked about her sex life and stared conspicuously at her breasts and legs. A week later, Ellerth was offered the job; she accepted. Slowik was based in New York but worked with Ellerth when he came to Chicago and when both traveled to company headquarters in Greensboro. At those times she says Slowik made repeated sexual remarks and suggestions to hear and also touched her inappropriately.
KIMBERLY ELLERTH: It made me feel like, like, like a piece of meat. I was, I was completely humiliated, embarrassed. I couldn’t believe that, that, that that was happening to me.
MARGARET WARNER: Ellerth also alleges that Slowik suggested her success at the company depended on being sexually compliant. She said Slowik told her: “I could make your life very hard or very easy at Burlington.” Ellerth rejected all his overtures and suggestions, she says. She was promoted, nonetheless, in March 1994. Still, she cited Slowik’s alleged harassment as her reason for her resigning two months later. In October of that year, Ellerth filed a sexual harassment complaint against Burlington with the U.S. Equal Employment Opportunity Commission and the Illinois Department of Human Rights. In the complaint, she said she felt compelled to resign because of what she called the “hostile offensive environment and abusive work environment created by Slowik’s sexual harassment.” Burlington’s employee handbook at the time said the company would not tolerate sexual harassment and urged employees to report any problems promptly. Ellerth says she knew of the policy but never complained out of fear her job would be in danger if she did. Burlington says it had no knowledge of any misconduct by Slowik and notes that Ellerth’s career at Burlington never suffered because of the alleged harassment.
MARGARET WARNER: The case went to the Supreme Court today. And for more on the case and a report on what happened at court we’re joined by Jan Crawford Greenburg, the national legal affairs and Supreme Court reporter for the Chicago Tribune. First, Jan, what is the legal issue or legal issues at the heart of this case?
JAN CRAWFORD GREENBURG, Chicago Tribune: Well, this case raises the very important question of whether an employee can sue for sexual harassment if she rebuffs a supervisor’s advances, yet still suffers no job detriment; she’s not transferred, demoted, sent to Siberia, as Justice Scalia suggested today. And it’s important because it raises the key issue of when an employer is liable for a supervisor’s actions.
MARGARET WARNER: Now, briefly, how did this case end up at the Supreme Court?
JAN CRAWFORD GREENBURG: Kimberly Ellerth sued Burlington Industries in federal court under Title VII of the Federal Civil Rights Act. That law prohibits employers from discriminating against workers because of their race, their sex, the religion, their national origin. In 1986, the Supreme Court said that sexual harassment could amount to illegal sexual discrimination under the law. And since then, lower courts have kind of developed that law along two separate kind of categories. And Ellerth, like most plaintiffs, sued under both categories. She said first that she had been subjected to a hostile work environment because her harassment had been so severe and abusive that it really had changed the conditions of her employment. But she also said that she’d been subjected to what’s called quid pro quo sexual harassment. And that kind of comes into play when a supervisor conditions a job benefit on whether or not the employee performs some kind of sexual favor. And here Ellerth said, you know, that’s kind of what had happened to her. Now, the lower court said, no, she had no claim on either track, not the hostile work environment claim or the quid pro quo. She appealed, and ultimately, the entire court of appeals sitting in Chicago heard her case. Curiously, it said that she had kind of waived her hostile work environment claim, but it said that she had stated the second claim, the quid pro quo claim, and it allowed, you know, her suit to proceed. But the court was very, very divided. In fact, there were eight separate opinions–
MARGARET WARNER: The appeals court.
JAN CRAWFORD GREENBURG: And it couldn’t really come to any conclusion, and the fact that Judge Richard Posner pretty much urged the Supreme Court to step into what he said was the chaotic law, and that’s what the court really did today. It stepped in and tried to make some sense of what the law is.
MARGARET WARNER: All right. Well, let’s go to what happened in court today. What was the gist of the arguments, first from the Burlington lawyer and then from the lawyer for Ms. Ellerth?
JAN CRAWFORD GREENBURG: Burlington’s lawyer, James Casey, argued that Ellerth had no claim because Theodore Slowik essentially had committed no company act. He was not acting for the company, even though he denies the allegations. But, assuming that they were true, he was not acting for the company. He didn’t fire her. He didn’t demote her. He didn’t do anything within his authority. And the threat of, you know, any kind of bad action just wasn’t enough. It was not a company act.
MARGARET WARNER: And her lawyer?
JAN CRAWFORD GREENBURG: Of course, her lawyer said, no, no, no. This is a company act. He’s a vice president, my goodness, you know, he is the company, and the company is him. So, of course, she should be able to sue for his actions and the company–because he acted on behalf of the company–should be liable.
MARGARET WARNER: So how did the justices respond? What thread could you see in their questions?
JAN CRAWFORD GREENBURG: Well, it was a very, very lively argument that reflected, I believe, very deep divisions on the court and certainly revealed what is the incredibly convoluted state of the law. There were no shortage of opinions. And we can expect to see anything from a sweeping opinion that pretty much reworks the law to a more narrow approach that is limited to whether or not, you know, any kind of job detriment is required. Justice Ruth Bader Ginsburg, for example, said she was just mystified why the law had developed along these kind of two separate tracks. And she said, you know, it’s not been the Civil Rights Act, these terms, so why do we have these two categories? I mean, of course, the court doesn’t have to go that far. And I doubt that it will rework the law. Instead, the bulk of the argument focused on whether or not the economic detriment was necessary and whether or what standard of liability an employer should be held to.
MARGARET WARNER: What do some of the more conservative members of the court indicate?
JAN CRAWFORD GREENBURG: Well, Justices–for example, Justices Antonin Scalia and Anthony Kennedy kind of suggested they were a little skeptical that Kimberly Ellerth had presented a quid pro quo claim. They said, well, you know, nothing happened here; she’s suffered no harm. Firing was a company act. A threat’s not a company act. You know, I really fail–you know, they said, I really fail to see what harm she suffered, what was the act. Justice Sandra Day O’Connor suggested that maybe this wasn’t a quid pro quo claim but, in fact, was one of a hostile work environment. Now, of course, that raises the question of whether or not Ellerth had waived that claim, and that’s still, you know, to be resolved.