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Several recent decisions by the U.S. Supreme Court have begun to define new parameters by which individuals and courts can evaluate sexual harassment cases.
On June 26 the Supreme Court handed down two rulings concerning sexual harassment in the workplace, and on June 22 it decided a case that sets out school districts' responsibilities when sexual harassment is charged against one of their employees. (Click here for a summary of court decisions.)
In one case, the court ruled by a 7-2 vote that employers are liable for the unwelcome and threatening sexual advances made by a company supervisor, even if the threats are not carried out and the harassed employee suffers no adverse, tangible effects (Burlington Industries v. Ellerth). In another 7-2 vote, the court found that an employer is potentially liable for harassment by a supervisor (Faragher v. Boca Raton, Fla.).
In other recent decisions the court ruled 5-4 that school districts are not responsible if teachers sexually harass or abuse students and school administrators do not know about it (Gebser v. Lago Vista Independent School District,).
The justices further clarified the parameters of sexual harassment when they ruled unanimously on March 4 that federal laws banning sexual harassment on the job apply to situations in which both the harasser and the person filing the complaint are of the same gender (Joseph Oncale v. Sundowner Offshore, et al.).
It may well be that the prominent cases this year, along with the presence of two women on the Supreme Court, have prompted the court to set these recent standards, said Elissa Benedek, M.D., former APA president and a forensic psychiatrist and clinical professor of psychiatry at the University of Michigan Medical Center.
"I think the court is in the process of clarifying what the definition of sexual harassment is and what is severe enough to be compensated," she said. "The rulings will force companies that have not had an articulated policy to develop, publicize, and educate staff about it."
In addition, now that a victim does not have to be damaged to litigate, companies will pay more attention to preventing sexual harassment, she added.
"If employers are held liable, I think they'll take it more seriously," said Leah Dickstein, M.D., director of the division of attitudinal and behavioral medicine in the department of psychiatry and behavioral sciences at the University of Louisville. "I think the most senior leaders in institutions should be responsible to educate and protect whoever reports to them. They should ensure that the entire staff knows about sexual harassment policies-the groundspeople-everyone."
Dickstein recommends that organizations hire people in their human services departments to conduct yearly workshops for staff on sexual harassment.
Dickstein, who is also the associate dean for faculty and student advocacy at the University of Louisville, educates staff and students about sexual harassment at the university and says that schools and universities are no different from corporate employers when it comes to the necessity for institution leaders to set and enforce policies. In October 1997 the president of the University of Louisville sent a letter to all faculty and staff along with a copy of the university's policy and procedures on sexual harassment.
"Faculty, staff, and students should be aware that sexual harassment and all other forms of discrimination in the workplace or the educational environment are unacceptable conduct and will not be tolerated," he wrote.
Though the cases that precipitated the rulings raised a variety of legal questions, the justices focused on employer liability when making decisions and therefore sent a clear message to employers. In Faragher v. Boca Raton, Fla., lifeguard Beth Ann Faragher sued for sexual harassment, charging that two of her supervisors made vulgar comments, slapped her on the buttocks, and tackled her to the ground. A federal district court ruled that the harassment was serious and met the test for discrimination under Title VII of the 1964 Civil Rights Act, but a federal appeals court reversed that ruling. The appeals court said an employer is liable only if it has given the supervisor authority to harass. Other appeals courts had ruled that employers were liable if they were negligent in allowing the supervisor's conduct to occur.
In the case of Burlington v. Ellerth, Kimberly Ellerth, a marketing representative for Burlington Industries in Chicago said a boss told her he could "make [her] job very hard or very easy" and asked her to wear shorter skirts. He also touched her inappropriately. Ellerth did not lose her job or opportunities for promotion when she did not submit to the harassment or suggestions. She sued after she quit her job.
The court, in an opinion written by Justice Anthony Kennedy, ruled that harassment victims need not show an obvious job consequence. It also said, however, that if there is no clear job loss, the employer can overcome liability by showing that it took reasonable care to prevent and correct harassment, and that the employee herself failed to take reasonable steps to either prevent or stop the harassment.
The case that elicited the ruling on school district liability, Gebser v. Lago Vista Independent School Distric, was brought to the court by a young woman named Alida Star Gebser, whose high school social studies teacher seduced and had a sexual relationship with her. The teacher, Frank Waldrop, lost his teaching license and was criminally prosecuted after a police officer found him having sex with Gebser in a car. The parents of two other students had complained about comments Waldrop made in their childrens' classrooms, and a school principal forced him to apologize but never reported the complaints to the school superintendent or investigated enough to discover Waldrop's relationship with Gebser. Gebser and her mother sued the Lago Vista Independent School District for sex discrimination under Title IX of the Education Amendments of 1972, a federal law that forbids sex discrimination by schools that receive federal funds.
In writing her ruling against Gebser, Justice Sandra Day O'Conner said that Title IX is unlike the 1964 Civil Rights Act, which bans sex discrimination and harassment on the job. Under Title IX, schools risk losing federal funds only when officials are told of a violation and do not act. O'Conner said Congress did not intend to make a district responsible in private lawsuits for sex discrimination without a finding of actual knowledge and "deliberate indifference to discrimination."
Dissenting Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg, and Stephen G. Breyer, maintained that school districts should be responsible for teachers' misconduct on the theory that teachers are acting on behalf of the school.
Currently many students and staff at the University of Louisville and employees at other organizations fear repercussions if they report sexual harassment, said Dickstein. They are more aware of the problem and the avenues of action, but they continue to believe that making charges will create too many additional difficulties and unwanted publicity.
Benedek believes that the recent Supreme Court rulings will begin to change that situation. She also expects the Supreme Court to hear more of these kinds of cases and further clarify sexual harassment policy. Ultimately, she predicted, it will be easier for litigants to file and win cases.