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Burlington Industries v. Kimberley Ellerth
High court rulings change harassment standards
June 26 (Court TV) -- The Supreme Court decided Friday that workers can still bring sexual harassment cases against employers even if the harassment is not reported and the employee's career is never hurt.
The court decided 7-2 in favor of Kimberly Ellerth, a former Burlington Industries employee who sued Burlington after her supervisor repeatedly harassed her.
Ellerth sued Burlington on the premise that the sexual harassment she endured on the job forced her out of her position, even though she never suffered any detriment to her position and was in fact promoted.
Ellerth's case had also drawn attention because its outcome was believed to affect the Paula Jones sexual harassment case. Jones has been largely unsuccessful at documenting that her career suffered as a result of alleged 1991 advances by Bill Clinton.
As a result of Ellerth's case, employees who face harassment on the job will likely have an easier time suing their employers. Her case was decided along with another 7-2 decision in favor of Beth Ann Faragher, a Boca Raton, Florida lifeguard whose suit claimed that supervisors regularly harassed her and other female lifeguards on duty.
Ellerth's complaint stemmed from numerous alleged advances by Theodore Slowik, a New York-based vice president in Burlington Industries' mattress division. Ellerth was based in Burlington's Chicago office and Slowik was not her direct supervisor, but she became increasingly uncomfortable with his repeated advances and lurid suggestions as she spoke with him frequently on the phone and occasionally saw him in person.
She complained to her co-workers and supervisors -- and told family and friends -- but admits she did not discuss the problem with Burlington's human resources department and did not file a formal complaint while she worked there.
"It made me feel like a piece of meat," she told Court TV. "I was completely humiliated, embarrassed. I couldn't believe that it was happening to me, that someone could do that."
If Slowik's alleged statements are true, he clearly propositioned Ellerth -- she said he told her at one point on the phone, "Kim, I don't have time for you right now unless you tell me what you're wearing."
He also used his power as his supervisor to coerce her into sex. ("At one point when I was not giving in to his advancements, he made the comment that he could make life very easy for me or very hard for me at Burlington," she claimed.)
Both those actions lie at the heart of the required burden for quid pro quo cases -- in which sexual favors lead to career advancement or rejected advances hurt a victim's career.
But the difference in her case rests with the fact that she was never penalized by Slowik or any other supervisor after she spurned his advances.
"It is our position that this is not a quid pro quo because there was no that for the this. It is our position that this may have been an attempted quid pro quo," James Casey, the lawyer representing Burlington in the Ellerth case, told Court TV. "We don't question that there should be a strict liability standard in quid pro quo."
For their part, Burlington didn't question her allegations. But they have argued that while they may have been negligent in controlling Slowik, they didn't know what he had done and are therefore not liable for damages she may have suffered.
Yet in its ruling today, the court drew a logical link between a supervisor's actions and a company's responsibility.
"The supervisor has been empowered by the company as a distinct class of agent to make economic decisions affecting other employees under his or her control," wrote Justice Anthony Kennedy for the court. "For these reasons, a tangible employment taken by the supervisor becomes...the act of the employer."
Burlington's argument had also been based on the widely varying standards used by different federal court circuits to handle harassment cases. That issue surfaced when the high court heard the Ellerth case in April, and this decision may help to clarify more than a decade of vagaries in federal case law.
"This is not a question of who is in favor, who is not in favor of sexual harassment," said Casey. "The law in this area...is in genuine disagreement around the country. My client is a company that has offices in probably every circuit around the United States, and the circuits have disagreed as to what the standards of liability are."
In fact, Ellerth's claim was based on parts of both strains of sexual harassment law: hostile work environment, as well as quid pro quo. The Supreme Court was aware that it would be forced to equivocate between the two types of harassment law in deciding the Ellerth case, and when it heard the case in April of this year, much of the questioning was focused on the voluminous amount of case law that has minutely, but never definitively, established the two parts of the law.
"How did all this come up?" asked Justice Ruth Bader Ginsburg in reference to the reams of case law.
Neither of those types of harassment are defined in the language of the 1964 Civil Rights Act from which current sexual harassment law is derived.
Burlington argued that it would be dangerous to establish a precedent in which hostile work environment claims -- which usually face an easier burden of proof -- could leave an employer liable for actions like Slowik's that they may have known nothing about.
Such a decision, said Casey, would force employers to keep a close and stringent eye on employees.
"It would cause employers to monitor their workplaces in such an overreaching fashion that they could be in violation of many state laws of privacy," he said.
In their dissent Friday, Justices Antonin Scalia and Clarence Thomas carried through on that argument.
"In this day and age," wrote Thomas, "no sexually harassed employee can reasonably believe that a harassing supervisor is conducting the official business of the company or acting on its behalf."
Friday's decision will allow Ellerth to bring her case again in a lower court. The Justice Department argued along with Ellerth that sexually based threats, even those that were rejected, could have a detrimental effect on workers.
Faragher's case stemmed from her work as a lifeguard for the city of Boca Raton from 1985 to 1990. She was harassed by two of her supervisors, and informally complained to a third but never filed a formal complaint. She originally won in court but the Eleventh Circuit federal appeals court reversed her claim, saying that while the two supervisors -- Bill Terry and David Silverman -- may have been harassing, the city itself was not liable.
The high court disagreed and reversed the case, allowing Faragher to go forward with her claim. As with Ellerth's case, the justices found that employers have a responsibility to control employees' actions.
"An employer can, in a general sense, reasonably anticipate the possibility of such conduct occurring in its workplace," wrote Justice David Souter, "and one might justify the assignment of the burden of the untoward behavior to the employer as one of the costs of doing business, to be charged to the enterprise rather than the victim."
The court also agreed with Faragher's arguments and said that while a supervisor may not obviously exploit their power when harassing a subordinate, the threat is still implicit: "Supervisors do not make speeches threatening sanctions whenever they make requests in the legitimate exercise of managerial authority, and yet every subordinate employee knows the sanctions exist."
Both cases will likely help victims of harassment to bring cases against employers on the principle of vicarious liability, which would hold the employer responsible even though it was an individual employee who was responsible for the offensive conduct.
As with Ellerth's suit, Justices Thomas and Scalia dissented in the Faragher decision.
-Jon Bonné
Reporting by Court TV's Wendy Kalnick.
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