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Constitutional Opinions: The Supreme Feminist Court
Rabkin, Jeremy
CONSTITUTIONAL OPINIONS by Jeremy Rabki n The Supreme Feminist Court M any people have had the thought: whatever else emerges from the Clinton scandals, at least they have put a stop to feminist...
...Whatever Alida Gebser herself may havethought, her parents were certainly entitled to think she had been victimized...
...Two facts in the background may help to explain this result...
...Justice Thomas's dissent got it just right: "Sexual harassment is simply not something that employers can wholly prevent without taking extraordinary measures—constant video and audio surveillance for example —that would revolutionize the workplace in a manner incompatible with a free society...
...Yet the Supreme Court confidently insisted in both these cases that an employer is responsible for the misconduct of employees even when the employer is unaware of it...
...property...
...Does this make sense...
...He did not claim that they were sexually attracted to him, simply that they made lewd, demeaning, and sexually explicit remarks that generated a "hostile environment...
...With all respect to Justice Scalia, this is surely wishful thinking...
...Two years after she stopped working for the city, another female lifeguard filed a harassment case that led to immediate disciplinary sanctions against her supervisors...
...The teacher at once lost his job and teaching license, but the girl and her parents wanted compensation, so they sued the school district for punitive damages...
...Although the city had a formal policy against sexual harassment, Faragher never invoked it...
...Prior to this term, the Court had only seen fit to take up three cases on sexual harassment in a dozen years...
...Fit4 The American Spectator • September 1998 63...
...In late June, at the end of its term, the Court decided to dig in more deeply on this matter...
...The premise of sexual harassment litigation is that "the company" pays, and that this affects neither consumers, stock holders, nor other workers...
...There is a good deal of irony in this...
...Yet short of such draconian measures, the Court's majority does not tell employers what to do...
...So, when it comes to private employers, the Court feels freer about offering bait to trial lawyers...
...62 September 1998 • T h e Am e ri can S pecta to r any complaint under the company's harassment policy until several weeks after resigning...
...The essence of the ruling is that school districts are not liable on the same rigorous terms as private employers...
...Meanwhile, Bill Clinton's Justice Department has taken the side of the plaintiffs in every one of these cases, urging wider liability for harassment...
...antiseptic legalism...
...The Court's majority held that the statute did not make the school district liable in such circumstances, since the damage claim might well exceed the amount in total federal grants it receives...
...But as the dissenters pointed out, the Court had previously held that Title IX can be invoked for private suits seeking damages...
...In Burlington Industries v. Kimberly Ellerth, the plaintiff complained that her immediate supervisor had invited her to the hotel lounge during a business trip, and once there, had made comments about her breasts...
...This year it took up four...
...The affair abruptly ended when a policeman caught the couple in the act...
...Despite disagreement among the lower courts, the opinion by Justice Scalia found the issue quite straightforward—by analyzing it with JEREMY RABKIN is a professor of government at Cornell University...
...The premise seems to be that nothing private employers do to restrain "harassment" can ever be a suppression of free speech because it is done "voluntarily" and by "private" actors...
...In Alida Star Gebser v. Lago Vista Independent School District, the Court faced a complaint under Title 1X, a statute prohibiting "discrimination on the basis of sex" in federally funded educational institutions...
...Every state has laws against statutory rape, making it a crime to have sex with an underage female, who is considered to be, by definition, a "victim...
...The case concerned a high school student and one of her teachers, who "had sexual intercourse on a number of occasions" over a two-year period, "often...during class time, although never on school44 So, for the more severe offense, involving the more vulnerable, underage victim, we have no employer liability...
...On a subsequent occasion, this same supervisor expressed reservations about giving her a promotion and "touched her knee...
...I n two other cases this term, with more conventional settings but equally troubling facts, the Court (over dissents by Justices Scalia and Thomas) gave plaintiffs a much bigger club to wield against employers...
...Second, the Court has treated school districts as "government," thereby acknowledging that some First Amendment protections for free speech apply to public school policies...
...Although this policy would seem to work against the interests of the White House, it merely confirms Clinton's bargain with the feminist establishment: ignore what Bill himself does and his team will keep the feminist litigation engine going at full throttle...
...She did get the promotion, however, and never filed Sexual harassment claims make a stunning comeback...
...Faragher then decided to file her own lawsuit, insisting that one of her bosses had "put his arm around [her], with his hand on her buttocks," "once made contact with another female lifeguard in a motion of sexual simulation," "made crudely demeaning references to women generally," and so on...
...In both of these cases, lower courts struggled with the facts—in Ellerth the Seventh Circuit Court of Appeals struggled so hard, it produced eight separate opinions for the same case...
...Justice Scalia's opinion acknowledges the warning from business groups that "liability for same-sex harassment will transform Title VII into a general civility code for the American workplace...
...How do men usually relieve stress and boredom during long hours of isolation on a mid-ocean drilling platform with only eight people...
...First, damage claims against school districts get passed on right away to local taxpayers—either in higher taxes or in service cuts affecting the taxpayers' children...
...In Scalia's view, it seems, the question is not whether the conduct relates in any way to "sex," but simply whether it is "severely hostile and abusive...
...His answer is remarkably complacent: "Common sense and an appropriate sensitivity to social context will enable courts and juries to distinguish between simple teasing or rough-housing, among members of the same sex, and conduct which a reasonable person in the plaintiffs position would find severely hostile or abusive...
...But students are forced to attend school, and public law (partly at the demand of the Supreme Court itself) imposes heavy financial burdens on people who seek private alternatives to the public schools...
...At issue was whether the general prohibition on "sex discrimination" in Title VII of the 1964 Civil Rights Act—the statutory basis for most federal harassment claims—extends to harassment of a male employee by other males...
...As Justice Thomas protested, the Court "provides shockingly little guidance about how employers can actually avoid vicarious liability...
...It was a summer job she held while working her way through college...
...Moreover, if there is a case for paternalistic government control, surely it applies most strongly to minors...
...All were docketed before the Lewinsky and Willey scandals came to light, so the Court was not making a subtle point about the president's abuses...
...But for rudeness and innuendo to grown-up women (and men), we smack the employer with suits for punitive damages...
...Both appeals courts overruled trial courts, with opposite outcomes...
...So, for the more severe offense involving the more vulnerable, under-age victim, we have no employer liability...
...The student never filed any complaint, explaining subsequently that "if I was to blow the whistle on that, then I wouldn't be able to have this person as a teacher anymore" and he was "the person in Lago administration...who I most trusted...
...In past cases, Scalia noted, the Court had been willing to consider whether affirmative action policies on behalf of women had discriminatory impact on men, even when the responsible managers were also male...
...In Oncale itself, "in the interest of both brevity and dignity," his opinion declines to describe the relevant facts in any detail...
...He then told her to "loosen up," warning, "You know, Kim, I could make your life very hard or very easy at Burlington...
...The proper standard, the Court insisted, was not even negligence —which would allow the employer to show that it had taken reasonable precautions, even if they happened to fail...
...The Supreme Court, however, is not ready to offer that consolation...
...Rather, the justices were responding to the enormous number and complexity of cases working their way through the lower courts...
...Yet we might have expected better from the Supreme Court...
...She came back for five summers...
...Though this satisfied the entire Supreme Court, it is hardly a satisfying argument...
...Oncale v. Sundowners was in some ways the simplest, and in fact, was the only decision to receive unanimous approval from the justices...
...After all, no one is forced to work for any particular employer and most people change jobs quite often...
...So, he concluded, it must be possible to have men discriminating against fellow men "on the basis of sex...
...CONSTITUTIONAL OPINIONS by Jeremy Rabki n The Supreme Feminist Court M any people have had the thought: whatever else emerges from the Clinton scandals, at least they have put a stop to feminist ranting about sexual harassment...
...Instead, the Court insisted on the more severe standard of "vicarious liability," which would make the employer fully liable for any wrongful conduct by employees, unless certain very vague "affirmative defenses" could be made...
...But the Court's decisions this term, rather than reduce the mess, simply confirm that it will all have to be thrashed out in federal courts for years and years...
...Instead it issues only Delphic pronouncements and leaves the dirty work to the lower courts...
...To say that the judge and jurywill consider "the context" is not much help when that context is quite removed from the experience of judges and juries...
...In Beth Ann Faragher v. City of Boca Raton, the plaintiff worked as a life guard at the Boca Raton city beach...
...And the Court's opinion repeatedly refers to the underlying offense as "sexual abuse...
...I n the final case, by a 5-4 majority, the Court rejected the principle of employer liability it had adopted elsewhere...
...Joseph Oncale had been employed on an off-shore drilling rig and quit his job after rowdy conduct by other drillers made him uncomfortable...
Vol. 31 • September 1998 • No. 9
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