Acceptable Behavior Sexual Harassment Message Swift and Clear: Don`t Do It

By William H. Freivogel Of the Post-Dispatch | St Louis Post-Dispatch (MO), November 14, 1993 | Go to article overview

Acceptable Behavior Sexual Harassment Message Swift and Clear: Don`t Do It


William H. Freivogel Of the Post-Dispatch, St Louis Post-Dispatch (MO)


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 unreserved.

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 says.

"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 discrimination.

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 beyond recognition.

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, she said.

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. …

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