March 26, 1998

High Court Hears 2 Sex-Harassment Liability Cases

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By LINDA GREENHOUSE

ASHINGTON -- Having painted the broad outlines of sexual harassment law with striking unanimity over the last decade, the Supreme Court moved Wednesday to the challenging task of filling in the details.

In arguments in two cases, the justices struggled with deciding when a harasser's conduct should produce legal liability not only for the individual offender but for the employer as well.

In one case, male lifeguards with supervisory responsibilities harassed women under their command, and the question was the liability of the city that employed them. In the second case, the question was whether a school district should be liable for a teacher's seduction of a 14-year-old student, resulting in a year-long affair that ended only when police happened on the couple and arrested the teacher.

These are difficult questions that have divided the lower federal courts and might mark an end to the justices' unanimity as well.

The justices questioned the lawyers intensely, searching for rules that could bring some order and predictability to the lower courts' handling of the growing number of sexual harassment cases.

"We're looking for something that is fairly simple to administer and this isn't it," Chief Justice William Rehnquist said at one point in evident frustration.

In the lifeguard case, which began 13 years ago on the beach in Boca Raton, Fla., the 11th U.S. Circuit Court of Appeals split 7-5 last year in ruling that the city was not liable for the actions of its two supervisory lifeguards.

The two men subjected eight women who reported to them to unwanted touching and crude remarks over a period of four years, and were eventually reprimanded by the city and ordered to pay damages in a separate phase of the litigation.

One of the women successfully sued the city in U.S. District Court in Miami. But the 11th Circuit, based in Atlanta, overturned the judgment, ruling that because the men were acting in an unauthorized manner, "outside of the scope of their employment," the city of Boca Raton was not responsible.

That decision was wrong, the plaintiff's lawyer, William Amlong, told the justices Wednesday, because the harassment was so pervasive that the city either "must have known, or was engaged in willful ignorance and did not wish to know."

In any event, he said, the city should be responsible for the consequences of not having an effective sexual harassment policy on its books and for not letting employees know how they could complain.

The existence of a well-communicated and vigorously enforced anti-harassment policy would be a "strong mitigating factor against liability" but would not necessarily shield an employer, Amlong said, because an employee might nonetheless have an "objectively reasonable fear" of complaining about a supervisor's conduct.

This seemed too broad an argument for the justices, who in earlier cases have stressed that corporate liability should not be automatic.

"Do you know anyone who isn't afraid of criticizing his supervisor?" Justice Antonin Scalia asked. Justice David Souter commented: "There's always going to be reasonable fear, so there's always going to be absolute liability."

Amlong's client, Beth Ann Faragher, was not only in the courtroom to hear her case but became a member of the Supreme Court bar Wednesday, one of a dozen lawyers who went through the brief ceremony that enables them to practice before the court. After working her way through college through her lifeguard's job, Ms. Faragher went to law school and is now a public defender in Denver.

The Clinton administration supported both Ms. Faragher in this case, Faragher vs. City of Boca Raton, No. 97-282, and the student, Alida Gebser, in the second case, Gebser vs. Lago Vista Independent School District, No. 96-1866.

An assistant solicitor general, Irving Gornstein, offered the court several legal theories on which Boca Raton could be held liable. He said the city's delegation of authority to the supervising lifeguards "to run the beach," coupled with its failure to disseminate an effective sexual harassment policy, made the city responsible for creating a hostile work environment.

Justice Sandra Day O'Connor objected that employees did not need to be instructed how to handle problems of this sort.

"I mean it's not like everybody's totally ignorant of these things," she said. "I would have thought that most people know and understand that if you're being mistreated, you complain higher up."

Ms. Faragher and a fellow lifeguard did complain, but to a sympathetic male lifeguard who did not have management authority and who did not forward their complaints.

Harry Rissetto, Boca Raton's lawyer, told the justices that the harassment committed by the lifeguards "had nothing to do with the exercise of their supervisory responsibilities." He added: "When a supervisor departs from the scope of his employment, he's acting on his own."

Justice Ruth Bader Ginsburg asked whether, under that theory, a bigoted personnel officer would be free to hire and fire on the basis of race without implicating the company.

No, Rissetto replied, because hiring and firing was "a company act, an official act of the company," in contrast to the lifeguards' unauthorized activities on the beach.

That response prompted Justice Stephen Breyer to ask why it should not also be a corporate responsibility to police the work environment to prevent on-the-job harassment.

The school district case presented some overlapping issues but also some quite different ones. The case, which comes from a small district near Austin, Texas, is the student's appeal of a ruling by the 5th U.S. Circuit Court of Appeals in New Orleans.

Dismissing the student's suit against the school district, the appeals court said a school district could not be liable for a teacher's harassment of a student unless an employee with supervisory authority over the teacher knew of the harassment and failed to do anything about it. The student never informed any school official about the situation.

Terry Wilson, arguing Ms. Gebser's appeal, and Beth Brinkmann, an assistant solicitor general also arguing on her behalf, said the district's absence of knowledge should not insulate it from liability.

Much of the argument centered on the law at issue, Title IX of the Education Amendments of 1972, which bars sex discrimination in educational programs that receive federal money.

Wallace Jefferson, arguing for the school district, said Congress could not have intended that accepting modest amounts of money under Title IX would expose school districts to "limitless punitive damages" for the unauthorized criminal acts of individual teachers.

Lago Vista, with a budget of $1.6 million, received $120,000 in Title IX money in 1992, when the student-teacher affair took place.