Two sexual-harassment cases argued this week before the US Supreme Court could substantially alter laws governing the American workplace - causing employers to spend more time educating about and enforcing rules against unwanted sexual advances on the job.
Sexual harassment is one of a few major areas of law being overhauled by the court this year. Yet neither case yesterday - one involving a female lifeguard and the other a high school teacher who seduced a 14-year old - will further define what sexual harassment is.
Rather, the nine justices dealt with how much a company or institution is responsible when sexual harassment is conducted by a job supervisor. Two-thirds of the harassment suits brought each year name supervisors as the culprits, according to legal briefs.
Currently there is no question that employers are liable if an employee endures unwelcome sexual overtures and then suffers a lack of promotion or pay as a result. But yesterday's cases dealt with an unsettled area: Who is responsible when a workplace environment becomes sexually hostile due to a misbehaving boss? Is it enough for an employer or organization to always argue it did not know of abuse?
In a spirited discussion among the justices yesterday, the question focused on the relationship between company policy and company liability.
Justice Ruth Bader Ginsburg asked "If a company has a fine policy, it is in the employee manual, and there's a telephone number to call, is that company liable?" Justice Anthony Kennedy followed: "Suppose you have a model employer but there is one bad apple supervisor, what then?"
Some lower courts forbid penalizing an organization due to the stupidity or lust of a low-ranking official whose behavior may not have been known. Other courts disagree, saying that since a supervisor is an agent of the company, the company is responsible.
One case deals with a city in Florida. The other a school system in Texas.
The city is Boca Raton, where Beth Ann Faragher was a lifeguard on the city beach for five years during college. She charges that she and other female guards were consistently touched and made subject to offensive sexual banter by two supervisors. The city did not inform employees of its harassment policy; Ms. Faragher instead told a friend who was also a supervisor.
The two supervisors were eventually disciplined. But Faragher sued the city under federal law. A district court agreed with her but two higher courts did not.
Yesterday Faragher's lawyers told the highest court in the land that the pattern of abuse in Boca Raton was so pervasive that the city should have known, and that not to know was a form of "wilful neglect." They also argued that when Faragher told her supervisor friend, that the city had been informed.
JUSTICE David Souter challenged "the nub" as he put it, of Boca Raton's argument that it is easier to distinguish prejudice based on race than on sex.
"Why is it more difficult for an employer to determine sexual harassment than bigotry,?" Souter asked. "That seems arbitrary to me."
Lawyers for the city said that officials in city hall were too far from the beach to know of the abuse, which went unreported for nearly five years. They said informing a friend is not an official act.
The Texas case dealt with a high school teacher, Frank Waldrop, who first met Alida Gebser when she was age 13. By the time she was 15, the two were having sexual relations, which came to a halt when they were discovered by a policeman. Mr. Waldrop was fired and charged with statutory rape in 1993.
When asked, Ms. Gebser said she did not report the situation because she wanted to continue having Waldrop as a teacher. Other parents had complained to the school about Waldrop's offensive remarks on occasion, but the teacher denied them when asked by officials.
Gebser's lawyers argue that Waldrop was an agent of the school, and that not knowing about the behavior is not an excuse. Lago Vista admits it did not distribute or call attention to its policy on sexual aggression, which is illegal under Title IX education laws. Still, school lawyers say the school is not liable since its officials did not know.
By this June, the high court could rule that employers have no liability; it could also rule they have full responsibility. Some legal experts think they will use the cases to find a middle ground.
"I wouldn't be surprised to see the court being proactive, ruling that companies must put out clear policies stating that they give no one the authority to create a hostile environment," says Barbara Fick, a professor of law at Notre Dame University in Indiana.