THE SIGNIFICANCE of the Supreme Court's sexual harassment
ruling last week wasn't so much in what the court said. It was more
in how quickly, clearly and unanimously it said it.
Seldom does the court hand down an important decision before
Thanksgiving. Seldom does it speak with one voice on such a
controversial topic. Seldom are its opinions so straightforward and
Writing for the court, Justice Sandra Day O'Connor said that
targets of sexual harassment do not need to show that they suffered
psychological damage to win their suits.
The court wanted to "trumpet the message again that sexual
harassment violates the court's `broad rule of workplace
equality,"' says Karen Tokarz, law professor at Washington
University. It wanted to send the message "to employers, to judges
who have been erratic in ruling on these cases and, most
importantly to juries who will now be the ones deciding. . .," she
"The speed of the decision, only four weeks after the oral
arguments, and the unanimity of the decision, underline how serious
the court is about this issue."
Mary Anne Sedey, a St. Louis lawyer who specializes in sexual
harassment cases, says that a major impact of the decision is "on
the perception of women in the world about whether they have any
protection. It had short clear language . . . that you don't have
to put up with this stuff.
"The important thing about law is not so much whether you can
win a lawsuit, but the standard that it sets in peoples' lives.
This is a clear message . . . to employers that they must not
permit it and to males who do this sort of thing."
As a matter of law, the decision was little more than a
reiteration of the seven-year-old precedent of Meritor Savings Bank
of Washington vs. Vinson. In Meritor the court recognized that
sexual harassment violated the federal law against sex
But last week's decision was an important restatement, says
Tokarz. During those seven years, some of the lower courts had
created new legal barriers that impeded sex harassment suits.
Imagine the federal courts as a sophisticated version of the
elementary school game of "telephone," where the initial message is
garbled as it is whispered around a circle of students.
By the time the Meritor decision was interpreted by the 13
appellate courts and dozens of district courts, it had mutated
The blatant sexual harassment that Teresa Harris allegedly
faced from the president of a Nashville equipment firm, Forklift
Systems Inc., was no longer enough to win in court.
Harris lost because she hadn't proved psychological damage from
a series of incidents in which Forklift president Charles Hardy
allegedly ridiculed her with sexually suggestive language, sexual
epithets and humiliating demands.
O'Connor rejected that psychological test. The target of
harassment need not suffer a "nervous breakdown" to win in court,
Although the decision straightens out the lower courts, it
doesn't do much to simplify the tricky process of drawing a line
between permissible and impermissible behavior.
WHAT ABOUT A FRIENDLY PAT?
A common refrain from men in the work force is that the law
outlaws friendly gestures and wholesome social contact.
Lois Vander Waerdt, whose firm, The Employment Partnership,
helps companies devise sexual harassment policies, disagrees.
The court hasn't suddenly made it illegal to hug or date or pat
a colleague on the back, she says.
"After the Clarence Thomas hearings a man came up to me and
said, `I'm not even going to shake hands with women anymore.' "
Vander Waerdt recalls. "I said, `That is not what Clarence Thomas
is accused of.' "
What is important, she says, is that men - the perpetrators in
more than 95 percent of the sexual harassment cases - be sensitive
to the way their behavior is received. …