Supreme Court Unpredictable on Harassment and Sex

by Tara Casey, Shefali Desai and Jen Ulrich, NOW Legal Interns

Over the course of its 1997-1998 term, the Supreme Court delivered this message to women: "Don't bet on us." Activists are finding this Rehnquist Court harder and harder to predict

In landmark decisions, women won greater protection against sexual harassment in the workplace but lost ground on harassment in schools. Furthermore, the Court's majority endorsed gender-based stereotypes of the parental responsibilities of unwed mothers versus unwed fathers.

High Hurdles in School Harassment

School districts cheered and feminists jeered when the Supreme Court held in Gebser v. Lago Vista Independent School District that school officials are not responsible for a teacher's sexual harassment of a student unless they actually knew of the behavior and purposely looked the other way.

In Gebser, Alida Gebser, a high school student, sued her school district for sexual harassment based upon the illicit actions of her teacher, Frank Waldrup. Waldrup instigated sexual relations with Gebser, coupled with suggestive comments in the classroom, when she was 14 years old and continued this behavior until discovered by the police approximately 1½ years later. Gebser had not reported the relationship to school officials, testifying that she was unsure what to do and didn't want to lose Waldrop as a teacher; however, other parents had complained to the prinicpal about Waldrop's use of inappropriate comments in class. Gebser's suit claimed that under Title IX the school district was vicariously liable for Waldrup's illicit behavior.

In a 5-4 decision, the Supreme Court held that liability under Title IX does not extend to a school district unless an official "who at a minimum has authority to institute corrective measures on the district's behalf has actual notice of, and is deliberately indifferent to, the teacher's misconduct."

NOW Executive Vice President Kim Gandy noted that "The Court has created a 'smoking gun' requirement which places a heavy burden on the student by completely disregarding the emotional and psychological characteristics of sexual harassment. The dynamics of harassment often involve an aggressor who holds a position of power over the target, which is especially intensified in a teacher-student relationship."

The only hope now for easing this burdensome standard lies within Congress. According to the Court, "Until Congress speaks directly on the subject . . we will not hold a school district liable in damages under Title IX for a teacher's sexual harassment of a student absent actual notice and deliberate indifference."

Employers Liable for Hostile Work Environments

Disappointment from the Gebser decision was counterbalanced with elation at overwhelming victories in two landmark cases that expanded the scope of employer liability for sexual harassment by supervisors.

In Ellerth v. Burlington Industries, Kimberly Ellerth sued her former employer under Title VII for sexual harassment based upon the inappropriate and threatening behavior of Theodore Slowik, then vice president of sales and marketing for Burlington Industries. The harassment, which included unwanted touching and threats to her job security, began during her initial interview for the position in 1993 and persisted until Ellerth eventually resigned in 1994. Burlington argued that Ellerth was not financially encumbered by the harassment and that, as a result, Burlington was not liable under Title VII.

The Supreme Court held, in a 7-2 decision, that even if an employee does not suffer any financially-tangible, job-related harm from a supervisor's sexual harassment, she or he may still hold the employer liable for other forms of injury.

If a supervisor threatens to fire an employee unless she submits to his sexual advances and fulfills that threat when she refuses, such behavior constitutes a tangible employment action. Traditionally, an employer has always been liable for the behavior of its supervisors if it resulted in some employment action. Now, according to the Court, even if there is no tangible employment action, an employer will still be liable for the hostile work environment created by a supervisor with authority over the employee.

Prior to this decision, if plaintiffs wanted to recover damages from employers, they were forced to prove that the offending supervisor's behavior was in the scope of his employment, that is, within his authority as a supervisor. With the Court's ruling in Ellerth, plaintiffs are freed from this unduly burdensome and difficult-to-prove step.

The plaintiff in Faragher v. The City of Boca Raton, Beth Faragher, was a lifeguard for the city of Boca Raton from 1985 to 1990. During this period, Faragher and several other female lifeguards experienced blatant and pervasive sexual harassment from their supervisors. The city's sexual harassment policy was virtually non-existent when Faragher brought suit against the city, claiming that it should be held liable for the harassment committed by its supervisory employees.

In a 7-2 ruling, the Court held that an employer is liable for the sexual harassment perpetrated by a supervisor with immediate (or successively higher) authority over the sexually harassed employee unless the employer can show (1) that it exercised reasonable care to prevent and correct promptly any sexually harassing behavior and (2) that the plaintiff employee unreasonably failed either to take advantage of any preventative or corrective opportunities provided by the employer or to avoid harm otherwise.

The Court was quick to point out that its opinion does not hold employers automatically liable for sexual harassment by supervisory employees, but in order to escape liability the burden is on the employer to show that it had an effective sexual harassment policy and that the plaintiff did not take advantage of an available remedy. While this decision is positive in many ways, the Court does not clarify what it would regard as reasonable behavior "to avoid harm otherwise" on the part of the sexually harassed employee.

"The feminist victory in this case is greater employer liability for sexual harassment committed by supervisory employees," said Gandy, "But we must be wary of the expectations lower courts might impose upon women to prevent or correct the sexual harassment they are experiencing from their supervisors."

Sex-Role Stereotypes Reinforced

Unlike the Supreme Court's decisions in Ellerth and Faragher, which will serve to encourage equality in our society, the Court's ruling in Miller v. Albright upheld a section of the United States Code which encourages sex-role stereotypes of unwed mothers versus unwed fathers.

In Miller, the plaintiff was born out of wedlock in 1970 in the Philippines to a mother who is a Filipino national and a father who is a U.S. citizen. Federal immigration law requires that a child born out of wedlock in another country to an alien mother and a U.S. father must prove that she is the daughter of the citizen father before the age of 18 in order to acquire citizenship. However, if an out-of-wedlock child is born to a U.S. mother and an alien father, she does not have to undergo the same formal proof requirement. The plaintiff in this case alleged that the two different standards for unwed mothers and unwed fathers of foreign-born children violated her father's equal protection right under the Fifth Amendment.

In a 6-3 decision, the Court ruled that while the standard was not the same for both sexes, this difference is not a violation of the Fifth Amendment's Equal Protection clause because a "child's blood relationship to its birth mother is immediately obvious and is typically established by hospital records and birth certificates, but the relationship to the unmarried father may often be undisclosed and unrecorded in any contemporary public record."

The dissenting Justices pointed out that the law unconstitutionally classifies people on the basis of sex by relying on the familiar stereotypes of mothers as being responsible for a child born out of wedlock while unmarried fathers are not. The Court's decision allows the law to treat mothers one way and fathers another.

The Supreme Court's opinions this season have not consistently furthered women's rights in the legal arena. These decisions result in mixed messages about the power dynamics between men and women in this society: while it will be easier to hold employers liable for sexual harassment perpetrated in the workplace, it will be harder to hold school districts liable for sexual harassment committed by teachers in the course of the student-teacher relationship; while Ellerth and Faragher will force individuals to make a connection between sexual harassment and the imbalance of power between men and women, Miller reinforces age-old stereotypes of women as primary caregivers and nurturers. Thus, despite the gains feminists have made through the courts, there is still a need for fervent activism in order to achieve the equality women seek.

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