Court struggles toward standard for employers' blame Justices hearing two cases of sexual harassment

March 26, 1998|By Lyle Denniston | Lyle Denniston,SUN NATIONAL STAFF

WASHINGTON -- The Supreme Court indicated yesterday that it wants to hold employers responsible for a supervisor's sexual harassment of workers, but that management should not be automatically liable in every case.

During a hearing on a test case involving a Florida lifeguard who sued after being subjected to crude sexual advances by two of her superiors on the beach, the justices became mired in complexity about how to write a standard of legal blame for employers.

"This is like running around Robin Hood's barn," Chief Justice William H. Rehnquist protested as a Fort Lauderdale lawyer for the former lifeguard offered the court little help in clarifying employers' legal responsibility.

"We're looking for something simple and easy to apply," Rehnquist added.

But at the end of the hearing -- and one immediately afterward, exploring sexual harassment of students by teachers -- the justices seemed no closer to a simple legal standard for employer responsibility either in the workplace or the school setting.

The former lifeguard involved in the first case, Beth Ann Faragher, is now a lawyer in Denver.

Yesterday, before the court began hearing her lawyer argue the case, Faragher was sworn in as a member of the court's bar.

She leaned forward frequently to catch the fast-paced exchanges among the justices in her case and in the school dispute that followed.

Twelve years ago, the court made clear that sexual harassment in the workplace was a form of illegal sex discrimination.

Six years ago, it indicated that teacher harassment of students might also violate federal anti-discrimination law.

However, the court has never spelled out the standards for judging when the employer or the school district itself will be held to account for sexual misconduct by supervisors.

Several justices hinted that they were reluctant to hold employers to blame any time a supervisor engages in such misconduct, even when the employer has an announced policy forbidding harassment.

Faragher's lawyer, William R. Amlong, argued that employers should be held to blame because "the dynamics of a supervisor/subordinate relationship" lead women on the job to fear retaliation if they complain to any superior about harassment.

Chief Justice Rehnquist and Justice Anthony M. Kennedy retorted that that reasoning sounded like a form of automatic liability, which they clearly did not embrace.

Justices Sandra Day O'Connor and Antonin Scalia pressed Amlong to offer examples of how he thought employers could avoid absorbing liability in every case.

But the justices hinted just as clearly that they were not embracing a suggestion by the lawyer for the city of Boca Raton, the employer in the lifeguard case, that employers should be legally blamed only when a supervisor uses a position of power conferred by the management to force sexual advances on a worker.

In Faragher's case, this did not occur.

Some justices reacted disapprovingly when the city's lawyer, Harry A. Rissetto, referred to the specific harassment in the case as mere "frolics" of the supervisors.

The justices also sparred with the lawyers, and with one another, over whether employers would be held to blame if they failed to adopt and fully enforce a clear-cut anti-harassment policy.

O'Connor suggested that there might be no need to impose that duty on employers, because "every employee in the country knows they can complain about mistreatment to somebody up the ladder.

"It is not as if everybody is ignorant."

When the court took up the teacher-student harassment case, involving a then-14-year-old female student who was led into a sexual relationship with a male teacher, the justices seemed unwilling to hold school districts to the same standard of responsibility for harassment that might be applied to other kinds of employers.

In the key federal law against sex bias in education, Congress did not outlaw all harassment -- only that which occurs in schools or colleges that receive federal money.

Several justices suggested that school districts may not have been given clear-cut notice that they must act to root out harassment as a condition for access to federal grants.

Pub Date: 3/26/98

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