Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: SUNDAY, November 28, 1993 TAG: 9311300339
SECTION: BUSINESS PAGE: F-4 EDITION: METRO
SOURCE: BY MICHELLE LEVANDER KNIGHT-RIDDER NEWSPAPERS
DATELINE: LENGTH: Long
The laws on relations between the sexes have been dramatically rewritten during the past 15 years. The new ruling, in eliminating a legal hurdle for workers, continued the expansion of workers' protections against sexual discrimination.
Civil rights law and Supreme Court rulings have altered the legal landscape. And the Anita Hill-Clarence Thomas scandal has since done more than any legislation to prompt employers to change workplace practices, management attorneys said.
The sly pinches, pats and hugs that were often part of the power equation of boss and secretary 20 years ago are now forbidden. Illegal sexual harassment has come to mean more than just a crude demand for sexual favors or else. A whole range of far more subtle behaviors, in combination creating a "hostile" work environment - sexist jokes, posters, demeaning remarks and graffiti - has also become illegal.
"We've moved from almost a refusal to recognize that sexual harassment existed to a view that . . . we want to prevent it and make it stop. It lets employees know we want all people treated with dignity," said Susan Daniel, vice president of human resources at Advanced Micro Devices Inc.
"Most employers are aware of the issues," said Mark Rudy, a San Francisco attorney who has won several landmark discrimination cases. "I've seen a dramatic improvement in personnel policy, training and enforcement of policy because of favorable court decisions."
In 1980, 16 years after the Civil Rights Act of 1964, the Equal Employment Opportunities Commission published its first guidelines on sexual harassment, calling it a form of unlawful sex discrimination. It said it was illegal for employers to force workers to perform sexual favors as a condition of employment. And it banned behavior that creates an intimidating or hostile environment.
Attorneys brought cases that said a hostile working environment was sexual harassment. But they were doing so in a court system that was defining such conduct in wildly different ways.
"I was busily arguing sexual harassment was sex discrimination to begin with," remembered Kim Gandy, now executive vice president of the National Organization for Women, of her days as an attorney in the South. "It was not an argument often accepted in Louisiana."
Then, in 1986, the Supreme Court found a hostile work environment was a form of illegal sexual harassment. With that decision, unwelcome fondling of employees at work, now viewed as outrageous, was found to be illegal, even if the worker hadn't suffered a financial loss as a result.
The recent ruling solidifies the court's decision in that earlier case, Meritor Savings Bank vs. Vinson. It frees workers from having to prove they suffered severe psychological harm as a result of a hostile environment.
Worker advocates say the new ruling shifts the focus of legal arguments to management conduct rather than the feelings of the alleged victim.
"It makes it clear you can draw a line between what is acceptable behavior and what is not," said Santa Cruz, Calif., attorney Jennifer Drobac. "You don't have to have a nervous breakdown to prove it."
\ THE SUPREME COURT ON SEXUAL HARASSMENT\
Q. Has this decision made it easier for victims of sexual harassment to win cases?
A. Yes. It allows workers to fight harassment without having to prove that offensive behavior caused severe psychological harm or left them unable to do their jobs. The court rejected a lower court's ruling that made such requirements an additional burden of proof. The decision also establishes clearer guidelines for what should be considered in a lawsuit on illegal or hostile work environments. As Justice Sandra Day O'Connor wrote in her decision, actions can be found to be illegal "before the harassing conduct leads to a nervous breakdown."
Q. How does this case define sexual harassment?
A. It has long been a well-accepted legal concept that it is illegal for a boss to pressure a subordinate to perform sexual favors or risk his or her job. But in 1986, the Supreme Court ruled that an employer could be sued for sexual harassment if sexual jokes, graffiti, suggestive remarks and cartoons were tolerated in the workplace.
Last month's ruling further described what patterns of behavior constitute a hostile work environment. Such cases must be based on a broad look at all the circumstances in a work environment, including the frequency of the discriminatory conduct, its severity, whether it is physically threatening or humiliating rather than merely offensive, and whether it interferes with an employee's performance, the justices ruled.
Q. One person's view of sexual harassment might be seen by another as a flattering remark or a joke. Does this ruling clarify who decides?
A. The court has adopted a standard based on what a "reasonable" person would find to be discriminatory and the views and experience of the alleged victim. The alleged victim must find the behavior to be unwelcome, which could include the impact on his or her psychological well-being, the court ruled. Other factors taken into consideration would be whether the employee's job performance suffered, whether he or she remained on the job and whether the experience prevented job advancement.
Q. If I'm a man, should I worry that any off-color remarks or jokes I make to female co-workers will result in a lawsuit?
A. Rush Limbaugh notwithstanding, men should be able to rest easy that they won't be dragged into court for one tasteless joke. The Anita Hill controversy has prompted a lot of baseless fears about what will be allowed in the workplace. The Supreme Court distinguishes clearly between a harmless joke and far more serious and far-reaching harassment. In a 1986 case that O'Connor quoted in her decision, the court found that "mere utterance of an . . . epithet which engenders offensive feelings in am employee" is not discriminatory.
Nancy Woodhull, a national consultant on women's issues, offers men one guideline to what might constitute sexual harassment. "Don't say or do anything that you wouldn't do standing in front of your wife, a judge or a lawyer."
Q. Does this decision represent a dramatic change in direction for the Supreme Court?
A. No. Lawyers for both management and employees said the Supreme Court reaffirmed principles outlined in a key 1986 decision. The lower court's ruling that was struck down, which required proof that a complaining worker suffered serious psychological damage, was "another of the appalling rules developed by the 6th Circuit," civil rights lawyer Richard T. Seymour wrote in a Washington newsletter. Management attorney Susan Daniel, vice president of human resource operations at Advanced Micro Devices Inc., said the ruling came as no surprise. It fits with the prior 1986 Supreme Court ruling and with "how most companies administer sexual-harassment policies."
Q. Does this case change what companies would allow or not allow in the workplace?
A. The court has clarified and strengthened generally accepted legal definitions of sexual harassment in the workplace. Managers probably won't need to rewrite anti-discrimination policies as a result, but this case will probably make companies more careful about preventing sexual harassment.
"This is a zero-tolerance message," advises management attorney Garry Mathiason, a San Francisco partner with Littler, Mendelsohn, Fastiff & Tichy.
by CNB