Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: SUNDAY, October 3, 1993 TAG: 9310030056
SECTION: NATIONAL/INTERNATIONAL PAGE: D-8 EDITION: METRO
SOURCE: LINDA P. CAMPBELL CHICAGO TRIBUNE
DATELINE: WASHINGTON LENGTH: Long
In the first weeks of the new term that opens Monday, the court will take up cases involving sexual harassment in the workplace, the scope of broad new civil rights protections that enable women to collect monetary damages for intentional discrimination and whether lawyers can systematically exclude potential jurors based on their sex.
Ginsburg is expected to cast an influential vote on these and other cases as the court wrestles with a range of issues on which the justices show no clear consensus.
Constitutional specialists from the Left and Right of the political spectrum say that, even though Republican appointees dominate the court, it is marked by coalitions of justices that shift, depending on the issues.
To that mix, Ginsburg may bring a special voice because she "understands in her gut what discrimination means in a way that has not always been apparent on this court," said Steven Shapiro, associate legal director of the American Civil Liberties Union.
The justices take up sexual harassment Oct. 13 with arguments in the case of Teresa Harris of Nashville, who sued her former boss, citing 2 1/2 years of vulgarity, innuendo and "joking" propositions.
The case has generated considerable debate about how far the law can go in regulating workplace behavior before it starts to infringe on workers' free-speech rights and how it can accommodate legitimate harassment claims without subjecting employers to suits by hypersensitive employees.
Harris refused to be interviewed, but court papers tell this story:
Charles Hardy, owner of Forklift Systems Inc., where Harris worked as one of two female managers, frequently told Harris she was a "dumb-ass woman."
He would ask female workers to get coins from his front pants pocket or drop objects to get them to bend over so he could look down their blouses.
He once jokingly invited Harris to the Holiday Inn "to negotiate your raise."
He also told her she could not wear a bikini because "your ass is so big . . . there would be an eclipse and nobody could get any sun."
After two years at Forklift, Harris complained to Hardy. He was surprised she was upset, but promised to stop. But a month later, when she reported having landed an important account, he asked if she had promised the customer sex.
From evidence like this, a federal magistrate concluded that Hardy was a "vulgar man who demeans the female employees at his workplace" but he was not a violator of Title VII, the federal law against job discrimination.
The magistrate said Harris was not entitled to any compensation because she had not proved her boss' behavior was bad enough to interfere with her performance and cause her "serious psychological injury."
The 6th U.S. Circuit Court of Appeals upheld that ruling, despite Harris' testimony that Hardy's behavior caused her to cry frequently and drink heavily. She also said she took tranquilizers because of the stress and would take out her frustrations on her children.
The Clinton administration has joined Harris in arguing that the psychological injury requirement is too strict and conflicts with a 1986 Supreme Court ruling that first recognized sexual harassment as job discrimination.
In that case, the justices said sex-based conduct violates the law when it creates a "hostile work environment" by being severe and pervasive enough to "alter the conditions of the victim's employment."
Women's groups contend that requiring proof of severe psychological injury would leave women unprotected against sexual harassment. However, they are worried about a standard that would perpetuate antiquated notions that women need special protection to cope with job stress.
On the other hand, business owners want the court to protect companies that have taken steps to guard against sexual harassment.
Even if the court decides that a victim need not show psychological injury, former Deputy Solicitor General Maureen Mahoney said recently, many women who sue for harassment still are likely to present that kind of evidence in order to warrant compensatory and punitive damages, which the Civil Rights Act of 1991 makes available.
Before the 1991 law, women who won their discrimination suits were entitled only to back pay or reinstatement, and they could not get jury trials. That left some women with nothing.
That was what happened to Barbara Landgraf of Texas, who has asked the court to decide whether she can take advantage of the new law even though her case had been tried when the new law took effect Nov. 21, 1991.
The justices also will hear arguments Oct. 13 in Landgraf's case.
Because of the partisan tug-of-war that surrounded passage of the law, it is deliberately vague about whether it applies only to new cases or to all suits pending in the courts when it was signed. The Bush administration favored the former, but the Clinton administration recently told the court it should also apply to pending cases.
The court's decision, expected next year, could affect thousands of employment discrimination cases involving millions of dollars in claims. One of those involves Irene Mojica, an overnight disc jockey at WGCI-FM, who sued the black-oriented Chicago station, claiming she was denied a prime-time shift because she is Hispanic.
The 7th U.S. Circuit Court of Appeals threw out the $35,000 damages Mojica won under the new civil rights law on the grounds that the alleged bias took place in 1989 and 1990.
A federal trial judge ruled in Landgraf's case that a fellow worker at USI Film Products in Tyler, Texas, had harassed her. But she was denied back pay because she quit her job voluntarily.
Her appeal was pending when the new civil rights act became law. The 5th U.S. Circuit Court of Appeals last year said it would be unjust to employers to change the rules so significantly after the fact.
Another case involving the issue of sex discrimination is a child custody dispute from Alabama. The court is being asked to decide if the Constitution's equal-protection guarantees prohibit lawyers from deliberately fashioning one-sex juries.
In a 1986 ruling, Batson vs. Kentucky, the court barred racial discrimination in jury selection and said criminal defendants have the right to a hearing when it appears that prosecutors are striking jurors based on their race. Later rulings said the Constitution also bars race-based exclusion of jurors by criminal defense lawyers, in civil cases and regardless of whether the defendant and the dismissed jurors are the same or different races.
In the custody case, Alabama officials sued James Edward Bowman to establish paternity and set child-support payments for a boy born to Teresia Bible in 1989. Lawyers for the state eliminated all men from the jury pool, a move Bowman's lawyer challenged unsuccessfully. The all-female jury found that Bowman had fathered the child.
by CNB