U.S. Supreme Court Tackles Two Touchy Employment Cases

THE JOURNAL RECORD, October 14, 1993 | Go to article overview

U.S. Supreme Court Tackles Two Touchy Employment Cases


WASHINGTON (AP) _ The Supreme Court tackled the sensitive question Wednesday of when off-color workplace behavior _ such as a boss asking a female employee to take coins from his pocket _ becomes illegal sexual harassment.

"This is not simply a hurt-feelings situation, it makes it tangibly more difficult to do the job," Clinton administration attorney Jeffrey Minear argued in the case of a Tennessee woman who said her boss sexually harassed her.

In another closely watched case, the administration argued that a 1991 civil rights law should apply to thousands of employment-bias cases that were pending when it was enacted.

The 1991 law provides "new remedies ... for old wrongs" and should not be restricted to cases where the alleged discrimination occurred after the law was enacted, Solicitor General Drew Days III told the court.

The sex-harassment case was heard by the first Supreme Court to include two female justices _ Sandra Day O'Connor and new arrival Ruth Bader Ginsburg, a former leading women's rights advocate.

The issue has received heightened attention in recent years, partly because of Anita Hill's accusation during Justice Clarence Thomas' 1991 confirmation hearing that he harassed her years earlier.

Thomas, who strongly denied any such conduct, sat silently during Wednesday's arguments.

The high court ruled in 1986 that on-the-job sex harassment is illegal if it is "sufficiently severe or pervasive to alter the conditions of the victim's employment."

Interpreting that standard must depend on the perspective of a reasonable person who is the target of alleged harassment, Irwin Venick argued in behalf of Teresa Harris, who sued her ex-boss after resigning in 1987.

Harris said Charles Hardy, president of Forklift Systems of Nashville, Tenn., asked her to retrieve coins from his pants pocket, suggested they start "screwing around" although he knew she was married, and asked if she won a sales contract by providing sexual favors.

Attorney Stanley M. Chernau, representing the company, said rulings that denied Harris any remedy should be upheld. "I don't think that offensive conduct automatically alters conditions of employment," he said.

Chernau conceded that the 6th U.S. Circuit Court of Appeals went too far when it said Harris must prove actual psychological injury to win a sex-harassment case.

Nobody defended that standard, and it appeared to be doomed. But the justices seemed less sure of what to do about the 1986 standard.

Justice Antonin Scalia said that previous guidance is "utterly meaningless to me." A more sensible rule might be to require people to prove harassment harmed their performance at work, he said.

But Ginsburg suggested that sex harassment can create a hostile work environment even when a woman continues performing well. …

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