DEBATING THE LAW
March 25, 1998
The Supreme Court has heard arguments in two cases which could set a major legal precedent concerning liability in sexual harassment cases. Following a discussion of today's hearing, three legal experts debate the how clear the current sexual harassment laws are and whether these laws are improving the treatment of women in the workplace.
JIM LEHRER: The many legal sides to sexual harassment. The Starr investigation and the Paula Jones case involving President Clinton and the recent trial of Army Sgt. Major McKinney have brought a new and bright light to this issue. We look at it now, beginning with what happened today before the U.S. Supreme Court. The justices heard arguments in two sexual harassment cases touching on the liability of the employers of sexual harassers. Here to tell us about the cases and the arguments is NewsHour regular Stuart Taylor, senior writer with the National Journal and contributing editor of Newsweek. Stuart.
A RealAudio version of this segment is available.
March 25, 1998:
A panel of legal experts discuss the state of sexual harassment law.
March 4, 1998:
Stuart Taylor discusses the Supreme Court's ruling on same-sex harassment.
September 11, 1997:
A report on the problem of sexual harassment in the U.S. Army.
May 27, 1997:
A report on the Paula Jones sexual harassment suit against President Clinton.
April 29, 1997:
Staff Sergeant Delmar Simpson is found guilty of 18 counts of rape in a military trial.
January 7, 1996:
The Supreme Court considers whether freedom from sexual harassment is a constitutional right.
April 26, 1996
A report on complaints of sexual harassment by women at a Mitsubishi automotive plant.
Browse the NewsHour's coverage of legal issues.
STUART TAYLOR, National Journal: Nice to be here.
The facts behind the Florida case.
JIM LEHRER: All right. Let's take them one at a time. The first involves a female lifeguard in Florida. What are the facts?
STUART TAYLOR: Beth Ann Faragher was a lifeguard for about five years--1985 to 1990--for the city of Boca Raton, an ocean lifeguard way out on the beach. There were a few women lifeguards and a lot of men. She claimed two years, I think, after she stopped life guarding and gone to law school, as a matter of fact, that she was sexually harassed throughout that period by two of her three supervisors. A lot of crude talk--belittling talk, dirty talk, a lot of unwanted touching on various parts of her anatomy, shoulder, rear end, being tackled once, I think, and lewd and suggestive comments being made, other--I think seven other female lifeguards made similar complaints, and it was established, more or less, for purposes that by the lower courts that this was sexual harassment. The issue for the Supreme Court is whether in addition to suing the people who did this, she could sue their employer, the city of Boca Raton, what the standard should be, and whether the employer's liable.
JIM LEHRER: Now, what are the two arguments on both sides of that question?
STUART TAYLOR: Her lawyer, William Amlong, argued essentially that the employer should be liable in this case for about three independent reasons: One, the harassment was so pervasive that the people at city hall should have known about it, even though they were across the bridge--you know, street and the beach; two, one supervisor was not involved in the harassment, was told about it, the girls, the women complained to him, and he did not report it up the line, and, in essence, told the plaintiff and others the city doesn't care about this, just endure it; three, although the city had a written sexual harassment policy, it was not communicated to any of these people, and, therefore, there was no ready procedure for the women who felt harassed to complain. The argument for the plaintiff was all of those things, I mean, the city should have known and was acting and had delegated power to these people to give--to do harassing, and, therefore, should be liable. And, in essence, by the way, the lower court held that too and awarded Ms. Faragher $1 in nominal damages.
JIM LEHRER: Held the city responsible.
STUART TAYLOR: Held the city responsible but only gave her $1. There were slightly larger awards against the others. The city's argument coming back again, Harry Rissetto said basically there's no way for an employer to know about these kinds of things. They were off on the beach, down the beach. Nobody from city hall was anywhere near there. Nobody told us; we didn't know about it. Even if we had communicated complaint procedures, the nature of these facts was such as to suggest that there would have been no formal complaints, and we should not be held liable for conduct we cannot control.
JIM LEHRER: Any clues from the questions or the reactions from the justices about how this thing might go?
STUART TAYLOR: There was lively questioning by about eight of the justices. And one of the things they centered on was how much difference it should make whether or not the city has a policy. Justice Ginsburg, in particular, Justice O'Connor seemed to be interested in well, if the city has a really good--if the city does everything right--communicates to all its employees, here's where you complain, please let us know about it. Should this insulate them from liability? But I think the more they kicked it around, the more Chief Justice Rehnquist's plaintive question at one point seemed to ring true, which is, you know, all of this sounds like going around Robins Hood barn, all of the complicated ways of structuring the argument. We're looking for something clear and simple to administer, and I think the chaos in the lower courts, which has existed and which has led to the Supreme Court deciding so many of these cases this year, was replicated in the efforts of the justices to come to grips with how do you do this.
Is a school district responsible for the actions of a teacher?
JIM LEHRER: Yes. All right now, the other case involved a student in Texas who had an affair or was induced--claimed--it was induced--to have an affair with a teacher. What were the arguments there?
STUART TAYLOR: It began at age 14, by the way, and the teacher secretly seduced her and carried on an affair for a long time. The lawyer for the student and her mother and--
JIM LEHRER: Sued the school district.
STUART TAYLOR: Sued the school district.
JIM LEHRER: Right. Okay.
STUART TAYLOR: The teacher got caught and went to prison for statutory rape. This was a crime. And it comes under the rubric of sexual harassment under Title 9, which is special federal legislation imposing sex, non-discrimination obligations on school districts, and other educational institutions that take federal money. The argument for the plaintiff and the administration was you should have very broad liability on school districts in order to force them to pay whenever they basically don't stop teachers from doing this sort of thing, even if it would be hard to do. It wasn't quite that broad, but it was close. The school district argued, on the other hand, look, we have--we get $120,000 in federal funds; this liability is being attached retroactively as a condition; we could be assessed millions and millions of dollars for something we had no knowledge of and no control of, and we shouldn't be hit with this kind of liability based on a law that is a condition attached to the federal grant that we would have turned down in the first place if we knew it came with this condition attached to it.
JIM LEHRER: Chaos on this one too before the justices?
STUART TAYLOR: There was a little less chaos. I think the--on that one I'd be a little more likely to think a school district is going to win largely because the student did--the evidence does not suggest that a student would have ever reported to it to anyone under any circumstances, even if she had been given a written invitation from the school board to do so. She didn't tell her parents. And when she was asked why she kept doing what this man wanted, the answer was basically that, well, he was her mentor and her teacher and she wanted him to keep being her teacher. Although that doesn't mitigate him criminally, it may mitigate the school district's ability to control a situation.
"These cases are perhaps more important money-wise because they're about when the employer has to pay."
JIM LEHRER: Now, Stuart, put this two cases in the context, the total context with the other cases that the Supreme Court is going to hear on sexual harassment. Put it in the context of what is now before the Supreme Court and what they're trying to clear up generally on sexual harassment.
STUART TAYLOR: Well, earlier this year they decided that same sex sexual harassment, man-on-man, in that case was not necessarily, you know, might be actionable. In earlier cases, which were also unanimous--
JIM LEHRER: There was a guy on the oil rig off the Gulf Coast, right.
STUART TAYLOR: The fact that it's male-on-male does not mean it can't be sexual harassment. It can be, if it's gender based, if they're picking on him because he's a man, as opposed to a woman. There has to be a sex discrimination component. But in that case and two earlier cases, going back to '86, the Supreme Court has laid out general guidelines for what sexual harassment is. Nobody really quite understands where the line is, but these cases are perhaps more important money-wise because they're about when the employer has to pay. Usually--
JIM LEHRER: They don't try to define sexual harassment, right? In other words, that's not the issue.
STUART TAYLOR: Not in these two cases. In these two cases they're taking it as a given that the supervisors were guilty of sexual harassment and that the plaintiff was entitled to damages. The question is whether the plaintiff's entitled to sue the school district in one case or the employer, city of Boca Raton, in the other, and when should the people with the money basically, which is who the plaintiffs always want to sue--
JIM LEHRER: Sure.
STUART TAYLOR: --when they should have to pay up.
JIM LEHRER: But those could be very--this could be very--these could be very important in terms of the way, whether it's a school district or a company or whatever, the way they go about the business of imposing sexual harassment rules, correct?
STUART TAYLOR: Enormously important, and one risk on the other side, I mean, everybody let's the justice seem to think, well, they should have good rules to encourage people to report it. Justice Breyer pointed out that if you're too--he seemed to suggest that if they're too draconian in trying to have rules and have spies everywhere to make sure nobody's telling a dirty joke or something like that--that you could have other undesirable effects. In other words, if you do everything you conceivably could to make sure sexual harassment never occurs, you're going to have sort of an Orwellian police hovering over the workplace all the time. Now, that wasn't really brought out, but Justice Breyer hinted at it by saying you don't want to go too far and aggravate tensions in the workplace.
JIM LEHRER: The rulings in these two cases that were heard today should be expected when?
STUART TAYLOR: By June. And they're being anxiously awaited by the people who care about the money, by the employers who pay and by the plaintiff's lawyers who get rich bringing these suits. They're not as important symbolically perhaps as some others, but in terms of when it comes down to the money, these are as important as any sexual harassment cases the court's decided.
JIM LEHRER: Okay. Stuart, thank you very much.
STUART TAYLOR: Thank you.