Court to tackle harassment in workplace, schools Back-to-back hearings set on sex-related lawsuits of ex-lifeguard, ex-student

March 25, 1998|By Lyle Denniston | Lyle Denniston,SUN NATIONAL STAFF

WASHINGTON -- When Beth Ann Faragher was 19, she took a job as an ocean lifeguard to earn money while attending college in Florida. In a matter of days, her supervisors began making sexual remarks to her. Soon, Faragher says, "almost continual touching" began. "It was a great job," she recalls, "except for those two men."

Some 13 years later, the lawsuit she filed against the city of Boca Raton -- "I didn't want to have this happen to any other lifeguards at that beach" -- has made its way to the Supreme Court.

Today, Faragher will be in the courtroom as the justices hold a hearing on her appeal. Right after that, the court will hear the case of a Texas woman, Alida Star Gebser, who as a 14-year-old ninth-grader six years ago enrolled in a college-credit social studies course, only to find herself led into a months-long sexual relationship with the teacher. Gebser is suing the Lago Vista school district.

With sexual misconduct claims holding the rapt attention of political Washington, the Supreme Court takes its turn with back-to-back hearings that will focus on sexual harassment in the workplace and in the schools.

In a year marked by an unusual willingness to hear harassment cases, the justices are preparing to answer nettlesome issues about who can be held to blame for unwanted sexual advances toward a worker or student.

After a dozen years in which it issued only three sexual harassment decisions, the court has put four such cases on its docket for the current term. One has been decided: This month, the court ruled that same-sex harassment on the job is covered by the main federal law against sex discrimination in the workplace.

A fourth case, in April, will test a theory that Paula Corbin Jones' lawyers are invoking in her sexual misconduct case against President Clinton: that an employee can suffer sexual harassment even if she loses no job benefits or opportunities, so long as she was threatened with such harm if she did not submit to advances.

"There is a good legal reason for the court to take these cases: to clear up the conflict in the lower courts" over sexual harassment law, says Kathryn J. Rodgers, executive director of the National Organization for Women Legal Defense Fund.

It is only a coincidence that the court is involved in these cases just as sex scandals develop around Clinton. Cases reach the Supreme Court in an order determined by the timing of lower-court rulings; the justices agree to hear appeals one case at a time, without treating them as a group.

The few sexual harassment cases the court has already decided have provided little guidance. Consequently, lower courts have gone off in conflicting directions. "Common sense has simply fled the field," Rodgers said. "These cases allow the court to clear the air."

Lawyers for employers say they also want the court to step in. Stephen A. Bokat, executive vice president of the U.S. Chamber of Commerce, said: "The reason the law is unsettled is that Congress has created a cause of action against employers, but has failed to specify the standard of care to which employers are to be held."

Jay E. Grenig, a Marquette University law professor, says there is a broader reason for the court's increasing caseload on harassment. Grenig said it "is the harvest of the results" of the 1991 Senate hearings on Justice Clarence Thomas' nomination to the court, dominated by allegations of sexual harassment by a woman who had worked for Thomas, Anita F. Hill.

"Without regard to who did what," Grenig said, "the hearings produced an increased awareness of rights in this area." The result, he said, was a sharp rise in the number of new harassment lawsuits.

Of the two cases the justices are set to hear, Faragher's case from Boca Raton may have the wider impact. It will establish rules that employers nationwide will have to follow under Title VII of the 1964 Civil Rights Act.

"If employers realize they can be held liable for supervisory harassment," says Barbara J. Fick, a law professor at the University of Notre Dame, "this would create a powerful incentive to develop and disseminate anti-harassment policies and more effectively police the workplace to prevent such misconduct."

Faragher, now a criminal defense lawyer in Denver, said that during her stint as a lifeguard, she was unaware that the city of Boca Raton had a policy against sexual harassment on the job. She thought her job would be in jeopardy if she "went to City Hall." When she learned that there was such a policy, she recalls saying: "Wow! I've never seen this before."

Boca Raton, supported by business groups, contends that employers should be held liable for supervisors' harassment only if the employers knew of the harassment and could thus act against it. Even if an employer has no policy against such harassment, the city argues, the employer should not be liable.

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