By Myrianthopoulos, Thalia
National NOW Times , Vol. 31, No. 4
During its 1998-1999 term, the Supreme Court's decisions delivered a consistent message: when women face discrimination by state institutions, their rights will be protected, but when the interests of private businesses are at stake, the Court is less inclined to interfere.
Schools Liable for Harassment
In a surprise ruling limiting state immunity, the Supreme Court held in Davis v. Monroe County Board of Education that Title IX of the Education Amendments of 1972, which prohibits sex discrimination in federally-funded education, includes a right to sue for student-onstudent sexual harassment.
The 5-4 decision delivered by Justice Sandra Day O'Connor ruled that school districts can be liable for damages under Title IX for failing to stop a student from subjecting another student to sexual harassment, but only if the school was deliberately indifferent to the harassment. O'Connor emphasized that "damages are not available for simple acts of teasing and name-calling among school children," but rather for behavior "so severe and pervasive, and objectively offensive that it can be said to deprive the victim's equal access to educational opportunities or benefits provided by the school."
The case was brought by Aurelia Davis, the mother of a fifth-grade girl who complained she was subjected to five months of sexual advances, taunting and unwanted touching by a boy who was eventually convicted in juvenile court of sexual battery against the girl.
The girl's previously high grades fell, as she became unable to concentrate on her studies. Teachers and administrators refused to respond to repeated complaints by Davis and her daughter.
Although pleased with the general outcome of the ruling, NOW and the four liberal justices who formed O'Connor's majority agree that the "deliberately indifferent" test for school liability is too high a hurdle for girls seeking legal remedies for sexual harassment in school.
Employers' Liability Limited
Victory on sexual harassment is by no means absolute, as evidenced by the ruling in Kolstad v. American Dental Association, a sex discrimination case concerning punitive damages for intentional discrimination under Title VII ofthe Civil Rights Act of 1964, as amended by the Civil Rights Act of 1991.
In a 7-2 decision written by Justice O'Connor, the court found that victims of job discrimination can collect punitive damages under Title VII without establishing "egregious" employer misconduct. An employee must only show "malice" or "reckless indifference" by the employer, which ultimately focuses on the employer's state of mind. Egregious behavior may be offered as evidence of that state of mind, but is not the only evidence permitted.
However, in a separate 5-4 vote, in which Justices O'Connor, Antonin Scalia and Anthony Kennedy joined dissenters Clarence Thomas and Chief Justice William Rehnquist to form a majority, the Court said "an employer may not be vicariously liable for the discriminatory employment decisions of managerial agents where [their] decisions are contrary to the employers' good faith efforts to comply with Title VIL" The majority ruling, which does not define "good-faith effort," sets an ambiguous standard and an additional obstacle to punishing employers for sexual harassment.
Carole Kolstad brought this suit when she was passed over for a promotion in favor of a man with less experience. The Court's ruling makes it unlikely that Kolstad, and other women who bring successful discrimination suits against employers, will be able to collect punitive damages, a remedy Congress made available for the first time when it amended the Civil Rights Act in 1991.
Disability Definition Restricted
Proponents of employee rights were further disappointed by the Court's ruling in three federal disability law cases handed down the same day as Kolstad. The Court held that petitioners in all three cases were not disabled under the intended definition in the Americans with Disabilities Act of 1990 (ADA). …