Harassment in the Workplace

November 14, 1993

The Supreme Court last week struck another blow for women's rights -- but one whose impreciseness will require it to try again in the future to give employers and courts clearer guidelines as to what is illegal.

The case before the court was very clear. A woman's boss at an equipment rental company in Tennessee continually made demeaning and insulting comments of a sexual nature to her in the presence of others. He expressed surprise when she told him she was offended. He apologized and promised to stop. But he didn't. So she quit and sued, charging that the workplace had been made abusive for her because of her sex.

Lower courts have disagreed on the proper definition of "abusive." Several judges have said that to violate Title VII of the Civil Rights Act, which prohibits discriminating against women with respect to "conditions or privileges of employment," the workplace environment must have been such as to cause psychological harm. So even in the Tennessee case, if the woman victim was not literally made sick, the act would not protect her.

That obviously is far too strict a standard, as Justice Sandra Day O'Connor said for a unanimous court. Such a standard allows many varieties of unacceptable discriminatory practices. Unfortunately, Justice O'Connor's standard is objectively vague and relies on the victim's subjectivity as well. She listed several criteria, such as "frequency" and "severity" of "abusive" behavior, but said that in the end illegal discrimination in the workplace has to be determined on a case by case basis -- and that one determinant is whether the plaintiff alone thinks she or he is being abused.

As Justice Scalia said in a concurring opinion, this leaves juries "virtually unguided" and opens "more expansive vistas of litigation." He joined the court only because, he said, "I know of no alternative." For the sake of all involved, especially women who continue to be the victims of this kind of discrimination, we hope Mr. Scalia and his colleagues think of an alternative when the next workplace harassment case reaches the court.

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