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Supreme Court Watch: Sexual Harassment Decision

June 26, 1998 at 12:00 AM EDT


PHIL PONCE: The court handed down two decisions today affecting employer liability in sexual harassment cases. We get more on the rulings from Jan Crawford Greenburg, Supreme Court reporter for the Chicago Tribune. Jan, welcome back. And one of the cases was from Chicago. What were the facts in that case?

JAN CRAWFORD GREENBURG, Chicago Tribune: That case involved a young woman by the name of Kimberly Ellerth. She had worked at a branch of a company in Chicago for about 15 months and quit when she said she could take it no more. She’d been subjected, she said, to a repeated harassment by one of her supervisors. The harassment, she said, included veiled threats, something to the extent of, you know, Kim, I could make life very easy for you here at Burlington, the company, and she was just constantly subjected to these threats.

So she sued and argued that the company should be held liable for the supervisor’s threats. The company denied all the allegations as to the supervisor, but they said, look, even if this is true, we shouldn’t be held liable, because nothing bad happened to you, Ms. Ellerth; in fact, you were promoted. So these were just mere threats, even if true, these were just threats, and you can’t prove any kind of harm. So that was the issue in that case. If an employee can’t prove harm, can she still sue the employer?

PHIL PONCE: And there was another case today, one on Florida. The facts in that case-

JAN CRAWFORD GREENBURG: That involved a lifeguard, yes, working for the City of Boca Raton. She sued the city after she quit her job and alleged also a pattern of harassment. But she argued that she had been harassed on different grounds. She said that two of her supervisors subjected her to a pattern of lengthy, offensive comments, unwelcome touching, just overall subjected her to work in this abusive kind of working environment.

And based on that harassment, she believed the city should be held liable for the acts of its supervisors. Now, she told no top officials at the city, so the city said, you know, we shouldn’t be held liable because we didn’t know about it; you didn’t complain to one of the higher ups about this behavior.

PHIL PONCE: And how did the court rule in those cases?

JAN CRAWFORD GREENBURG: Well, the court-even though these are two very different cases with different facts-the court today issued pretty clear rules about when employers are going to be held liable for a supervisor’s harassment. And it said-in both of these cases-the employer can be held liable. And that was a big victory for workers, particularly workers in areas where judges have said no, you really have no claim.

PHIL PONCE: So in the first case an employer could conceivably be held liable, even though the employee suffered no harm on the job.


PHIL PONCE: And in the second case an employer could be held liable even if the employer didn’t have actual notice.

JAN CRAWFORD GREENBURG: That’s right. But the court didn’t stop there, and that’s why I think today’s ruling not only is a victory for workers but also a victory for employers, because the court said even though we’re going to say you’re liable, the employer can avoid liability and present a defense in these kind of cases if the employer can show that he had taken reasonable care to implement say a policy or to stop sexual harassment or root it out, and that the employee didn’t take advantage of that policy, that she-or that she didn’t complain about it, that she didn’t do anything.

So it gave-the court gave employers a defense today. And that’s something I think that businesses have long wanted. It’s a clear rule. It gives businesses an idea of how they can defend themselves in the workplace, yet, it also gives workers a means of getting some kind of redress if they’ve been wronged as well.

PHIL PONCE: Strong dissent from Justice Thomas.

JAN CRAWFORD GREENBURG: That’s right. Justice Thomas-he had two objections to the ruling today-basically he said, first of all, this really isn’t that clear, it’s not as clear as you think it is, and this is just going to lead to more and more litigation, because now courts are going to have to decide when employers have instituted proper policies and whether or not these defenses are correct; that he also said that the decision was wrong, because it almost imposed a different standard in sexual harassment cases than the standard that’s now in place for racial harassment cases, and that the standard now for sexual harassment cases is a little tougher, but legal commentators and-

PHIL PONCE: Tougher on the employers, you mean?

JAN CRAWFORD GREENBURG: Right. Yes. And even in the opinion today Justice Kennedy suggested, well, no, that’s not right, that this new standard will probably also apply in the racial harassment cases as well.

PHIL PONCE: Jan, this makes four cases this term that the Supreme Court has decided dealing with sexual harassment. By way of a very quick review, the other two cases in this term were-

JAN CRAWFORD GREENBURG: Well, the first big case clearly decided that a person can sue for sexual harassment even if he’s been harassed by someone of the same sex. That was a big ruling. The lower courts were split on that. The second case involved a completely different federal law than the one at issue in the workplace.

It involved an education spending law, and it said that school districts, a stronger decision in favor of the school districts, it said school districts are not going to be held liable for a teacher’s harassment of a student unless a high-ranking official within the school knew about the harassment, and, you know, really was deliberately indifferent to it.

PHIL PONCE: How muddy were the waters in the lower courts? How much sort of institutional pressure was there on the court to decide these cases?

JAN CRAWFORD GREENBURG: Well, I think it’s very significant that we have four sexual harassment cases this time. It’s very unusual. And it illustrates that the law is just a mess ever since the court handed down its decision in 1986 saying that sexual harassment could be illegal discrimination. In fact, in the Ellerth case, the case from Chicago, the chief judge for the appeals court in Chicago, Richard Posner, had all but pleaded with the court to jump in here and resolve this chaotic state of the law. So today’s ruling was welcomed not only by businesses and lawyers but also I think by some federal judges, as well.

PHIL PONCE: Jan, we’ll come back to you in a little bit.

PHIL PONCE: Now, a wider look at the impact of these two cases and other sexual harassment cases decided by the Supreme Court this term. We’re joined by two attorneys who specialize in sexual harassment law. They both filed friend of the court briefs, on opposite sides, in one of today’s cases. Kathy Rodgers it the Executive Director of the NOW Legal Defense & Education Fund, and Bill Kilberg is in private practice here in Washington. And welcome to you both. Ms. Rodgers, what is the impact of today’s rulings on employees?

KATHY RODGERS, NOW Legal Defense Fund: Well, the impact on today’s rulings is tremendous, and it’s very favorable for employees. The court has said loud and clear that sexual harassment is discrimination and it is the employers responsibility to root it out. The employers have the capacity to do that, and that’s what the law requires, and so from today on we can move from denial and evasion and avoiding dealing with this issue to putting in place the policies that will root out the harassment that’s good for women, that’s good for all women, and it’s very good for employers too.

PHIL PONCE: Ms. Rodgers, would you say that employees are the winners in these cases?

KATHY RODGERS: I actually think that this is a win/win. The employees are big winners in this case, because now women can go to work knowing that they have a right not to be sexually harassed and that the employer has to do something about it. But at the same time, the employers have clear guidelines on what they should do. They should put in place policies; they should communicate those policies. And by doing that, they will eliminate the harassment. That’s the real goal here.

PHIL PONCE: Mr. Kilberg, the impact on employers.

BILL KILBERG, Attorney: I think it’s positive. Clearly, employers would have preferred a standard that said that employers are not liable unless they knew or should have known of the wrongdoing by individual supervisors. But this is a positive decision. What many employers feared and where some courts have been headed is a notion of strict liability that employers would be liable, regardless of whether they knew or should have known, and without any defense.

What the court today did was give employers a very clear affirmative defense. If the employer, as Ms. Rodgers indicated, if the employer puts a policy in place, distributes that policy to the employees, in other words, makes it known, and if that policy is usable, user-friendly, the employer will have a defense to actions of a supervisor about which the employer did not otherwise know.

PHIL PONCE: But do these two cases in some way make employers a little more vulnerable than they were before? The burden, according to some observers, has shifted to employers. Is that a fair description?

BILL KILBERG: It’s a fair description that employers have a burden of proof that they wished or would have preferred not to have had. On the other hand, employers don’t have the strict liability that they feared they might have.

PHIL PONCE: The absolute liability you were talking about earlier.

BILL KILBERG: Exactly. So it’s a bit of splitting of the baby. From the employer’s perspective, it’s not as good as what many employers would like. Justice Thomas’s dissent is much clearer on that point. Nonetheless, it’s a positive decision. What employers want more than anything else is clear guidance. What can I do to avoid liability? And they want to know that before the fact, rather than after the fact. The Supreme Court took a large step today towards giving them that information and that certainty.

PHIL PONCE: Ms. Rodgers, as far as guidance to employees, is there something now that employees have to keep in mind if they’re going to keep-to keep their claims viable?

KATHY RODGERS: Well, I think what happens for employees is that they now know they have a right to be free from sexual harassment in the workplace, and that it’s the employer that has to take the steps to eradicate it. So what employees should be doing is saying to employers we need these policies and these procedures, and let’s put them in place and get rid of the sexual harassment.

We will have a real victory and the world will be a very different place when we finally get employers to stop talking about avoiding liability and start talking about eliminating the sexual harassment in the workplace, which is going to be good for the employees. They can go into work. They can do their jobs. They can be productive. That’s what they want to do. They don’t want to be bringing lawsuits. And that’s in the best interests of employers. That’s the message that the Supreme Court sent loud and clear today, and we hope the employers will hear it. This is not just about avoiding liability. This is about rooting out the harm that sexual harassment does in the workplace to women.

PHIL PONCE: How about that, Mr. Kilberg? Have employers been concerned mainly about avoiding liability, as opposed to doing “the right thing?” Ý

BILL KILBERG: No employer wants to have a workplace that is permeated with sexual harassment. That’s never been a desire of employers. Nobody wants that. That’s conduct which is unacceptable. The problem for employers has been that the employer does not want to be the policeman of the workplace. We don’t want to intrude upon the privacy of employees. We don’t want to have to put cameras around the workplace. We don’t want to be reading people’s e-mails. We don’t want to have to police the activities of our employees in that way.

What we learned today was that if an employer has a policy, disseminates that policy, make sure that employees are aware of it, and take steps when complaints are received that the employer can avoid liability and, therefore, avoid the necessity for the kind of intrusion into the daily lives of employees that employers do not wish to engage in.

PHIL PONCE: Are you saying that there were a lot of employers in New York doing, taking those kinds of steps that you’re talking about?

BILL KILBERG: I think employers generally over the last few years have been taking those steps. The reality is that the law of sexual harassment has been developed over a period of years now. Employers are aware it’s there. Employers have been taking steps to put procedures in place. Not all employers have been as conscientious as they will now have to be under the Supreme Court’s ruling about making sure that employees are aware of those policies and that those policies are regularly updated and the information regarding them is regularly distributed. That is clearly a message from these decisions, and I think employers will take that message to heart.

PHIL PONCE: Ms. Rodgers, do you agree with Mr. Kilberg that-let me ask you this-how clear do you think the overall state of sexual harassment law is now?

KATHY RODGERS: Oh, I think that these decisions have clarified the rules greatly and this is all to the good. We very much wanted-we at NOW Legal Defense Fund and in the women’s movement-wanted the confusion in the lower courts to be clarified. And the Supreme Court today came to the right conclusion. They came to the result that we asked for, which was to say first that it is the employer’s responsibility to eliminate the sexual harassment and then to allow the employer’s efforts, its effective efforts at preventing or stopping sexual harassment, to mitigate against the liability that the employer would have.

And I don’t think that’s a great burden. I would only add that there is one more very important fact here, which is that not only must there be a policy in place and it must be implemented, but the employees have to be confident that they will not be retaliated against for bringing complaints. And the more that employers publicize their policies and act on complaints promptly, they will be able to assure employees that that does not have to be a problem. No one ever wanted cameras in every room in the office, and that, to me, is a myth that was created to try and avoid the basic responsibility.

PHIL PONCE: You mean a camera as a means of monitoring to make sure that sexual harassment was not taking place?

KATHY RODGERS: Yes. That’s just an exaggeration of what employers would have to do to try and trivialize the problem and to try and deny that there was a problem. The court has just swept away all that underbrush and just very clearly and in understandable language set out the standards, and that’s good for everyone.

PHIL PONCE: Bill, a real quick response, because I have to get back to Jan for a second.

BILL KILBERG: A quick point. Just simply that the court also emphasized the obligation of employees to complain if, in fact, sexual harassment has been going on. An employee does not bring her complaint; the employer is not liable. The court makes a point of noting the obligations of employees, as well as employers.

PHIL PONCE: Jan, what else is in the pipeline? What unfinished business in the area of sexual harassment might the Supreme Court be looking at in the future? Are there any cases in the pipeline?

JAN CRAWFORD GREENBURG: Well, today’s case concerned the employer’s liability for the actions of his supervisors. Not at issue were an employer’s liability for a co-worker on co-worker sexual harassment.

PHIL PONCE: Is that a big issue?

JAN CRAWFORD GREENBURG: It certainly has been. And I think that the lower courts are somewhat split on that. The court gives clues on how its lower court should proceed, but that really wasn’t at issue today. And then, of course, as Justice Thomas said in his dissent, this ruling is going to create, as he said, more and more litigation, because now we’re going to have to decide what employers, what policies are adequate, and what’s not.

PHIL PONCE: Well, that’s where we’ll have to leave it. I thank you all very much.