This week the Supreme Court will begin a groundbreaking
effort to define and clarify an emerging, confused area of United
States law: sexual harassment.
Considering the volume of news generated by harassment
allegations in recent years, many Americans may think this a
settled area of jurisprudence. Since Anita Hill accused
then-Supreme Court nominee Clarence Thomas of improper advances in
1991, federal harassment claims have tripled. Sixty such cases are
now filed every working day.
Yet the law dealing with sexual harassment has been unclear
and unevenly applied since its beginnings in the landmark Civil
Rights Act of 1964. Before this year, the US Supreme Court has
heard only two sexual-harassment cases. Neither ruling spelled out
what harassment is, or who is liable for damages stemming from it.
Now that is changing. The high court this year took an
unprecedented four harassment cases - two are being argued this
week - that will likely clarify the law and result in far-ranging
effects for millions of men and women in the workplace, and for
their employers as well.
"There is definite confusion out there about the legal
standards that apply," says Nancy Perkins of the law firm of Arnold
and Porter here, who filed Supreme Court briefs on behalf of the
National Women's Law Center. "The justices seem to want to clear it
up all across the board."
The court will ask, for example, whether an individual even
needs to experience economic or job-related harm to bring a suit.
That question bears directly on allegations against President
Clinton by Paula Jones and Katherine Willey - though none of the
Supreme Court cases was filed, or accepted as a result of the
various allegations besetting the White House.
The court will also look at the level of responsibility an
organization must take for the behavior of its employees. Must top
executives know of wrong behavior before suit can be brought, or is
reporting to a mid-level supervisor enough? Is a school system
liable for any teacher who sexually exploits a student?
Which way will it go?
It's not clear which way the high court will rule in these
important areas. One reason: In the area of sexual misbehavior,
justices do not have predictable views based on whether they are
liberal or conservative.
Most sexual-harassment law has been developed by liberal
legal theorists. Yet the generally conservative Chief Justice
William Rehnquist wrote the first opinion on harassment in 1986,
allowing cases to move forward. Justice Clarence Thomas, a strong
conservative, joined the opinion in a 1989 ruling that sharpened
the law to forbid sexual advances if they led to a hostile work