Tuesday, April 28, 1998

Sexual harassment eruptions frustrating

By Ellen Goodman

BOSTON - Is it my imagination, or are even the justices getting a touch frustrated by the sexual harassment eruptions in their courtroom?

On Wednesday, the Supreme Court heard the fourth in a series of appeals from lower courts to "bring order to the chaotic case law." This one was so complex it had Justice Ruth Bader Ginsburg imploring the legal heavens, "How did all this come up?" Justice Antonin Scalia demurred, "We didn't start it."

The case in point was Ellerth vs. Burlington. According to the undisputed facts, it began when Kimberly Ellerth took a job as a merchandising assistant for Burlington Industries. Soon Theodore Slowik, vice president and her supervisor, began working his charms on her.

There was the hand on the knee, the recurring comments on the size of her breasts and the length of her skirts. There was the time he wouldn't approve a project until she described what she was wearing. There was the day he told her, "You know, Kim, I could make your life very hard or very easy at Burlington."

Slowik's behavior finally drove her out of work and into court with a pretty good description of a hostile work environment. But the complaint that arrived at the Supreme Court was a quid pro quo case. Her suit was based on his threat that if she didn't "loosen up," it could affect her job.

The problem before the court, however, was this: When he did "quid," she didn't do "quo" and he didn't follow through on the old "quid." In other words when she resisted, he neither fired her nor demoted her. In fact she was promoted.

So the justices were asked to decide the culpability of an empty threat. Is it harassment if "nothing happened"? This is why this case is linked by Paula Jones watchers to her chances for appeal; Jones also claims harassment without tangible consequences.

Of course, the notion that you have to quid - or is it quo? - to make a case is troubling in itself. As one of the justices wondered, why should someone who acquiesces have a better case than someone who resists? How do you know if a threat is empty when it's made? And, when you are threatened, "something" has "happened." The work environment has changed.

But the larger question the Supreme Court has to resolve sooner or later, is why on earth we have a double standard of sexual harassment law anyway? Why is a case in which a working woman is sexually blackmailed so different from a case in which sexual misconduct creates an environment hostile to her sex and success?

Justice Ginsburg called the distinction "mystifying." So would many employees. Indeed the original legislation banning employment discrimination makes no such difference.

But under the chaotic case-by-case decisions, the law in this murky new arena has traveled on two tracks.

Track One: Courts have ruled companies are automatically liable when a supervisor tries to trade sex for a job. In those cases, the boss is the company.

Track Two: When there is "merely" a hostile work environment, the employee has to prove the company knew or should have known what was going on before it's liable.

This has made lawyers more eager to charge quid pro quo. But the two-track system makes no sense. It doesn't exist for race discrimination. Or other forms of gender discrimination.

Indeed, the "mystifying" double standard grows out of the lingering belief that sexual harassment is different from other forms of employment discrimination. That it's about sex more than power.

Well, the supervisor with his hand on your knee may be acting in pursuit of sex, not corporate business. The manager who mistreats an African-American because he personally doesn't like black folks may also be operating on his own. Still, in the matter of race, the company is liable.

The business hires, trains and promotes managers. There's no reason to assume a supervisor is the company when he tries to blackmail a woman into sex, but is a private individual when he describes her breasts.

It would make a good deal more sense if the Supreme Court took the opportunity this spring to make a single standard of liability. Damages would still vary, but the companies would take discrimination more seriously.

For the moment the real two-track system is still in place. Kimberly Ellerth has gone to the Supreme Court. But guess where the supervisor is who made her "feel like a piece of meat"? On the job.

The Boston Globe Newspaper Company