Fresh Air From High Court

THE recent United States Supreme Court ruling in the sexual-harassment case of Harris v. Forklift Systems Inc. was a breath of fresh air in its swiftness (handed down four weeks after arguments were heard) and its unanimity. It was also proof that a middle-ground ruling can be a helpfully clear and direct signal as to how the court, and the federal government, regard sexual harassment in the workplace.

At issue in the case was whether the conduct to which the plaintiff, Teresa Harris, manager at a truck-leasing firm in Nashville, was subjected on the job constituted actionable sexual harassment. Charles Hardy, president of the firm, continually made lewd comments to and gross innuendoes about Ms. Harris. Lower courts had found his behavior ``inane'' and ``vulgar'' - but had ruled that because she had not thereby suffered severe psychological impairment or been rendered incapable of working (she had simply quit her job), Harris had not been subject to sexual harassment.

In her opinion on the Harris case, however, Justice Sandra Day O'Connor noted, in a line that you will hear repeated, that federal law ``comes into play before the harassing conduct leads to a nervous breakdown.''

She added, `` ... that the discriminatory conduct was so severe or pervasive that it created a work environment abusive to employees ... offends Title VII's broad rule of workplace equality.''

Marcia Greenberger of the National Women's Law Center was quoted as calling the ruling ``as clear a signal as could be to employers that sexual harassment is a serious violation of the law and that the time for strained legal arguments is over.''

This is not to say that there aren't subjective elements here; Justice O'Connor's ruling was explicit that ``if the victim does not subjectively perceive the environment to be abusive ... there is no Title VII violation.'' And Justice Antonin Scalia was troubled by what he saw as a lack of clarity in the definition of an ``abusive'' environment, as he noted in his concurring opinion.

But it is heartening to have the Court rule in a way that moves away from psychological testing to determine ``damage'' to a would-be plaintiff.

Sexual harassment, especially in the workplace, is a serious problem, but it is hard to think of another social issue that has got stuck in such muddle and mire. On one hand we have men who ``just don't get it'' complaining, ``Does that mean we can't give you girls compliments anymore?'' and on the other are women who sound prepared to sue if their boss admires their new dress or haircut. A study of sexual harassment in schools that came out a while back quite unhelpfully failed to distinguish between adolescent grossness - reprehensible though that is - and actual sexual assault.

O'Connor referred in her ruling to a ``middle path between making actionable any conduct that is merely offensive and requiring the conduct of a tangible psychological injury.'' The real value of the ruling, however, may lie in the suits it prevents from being filed: With this clear signal from the Supreme Court, employers will figure out what is needed to maintain a workplace environment not actionably ``abusive.''

They will find it not all that difficult.

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