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Recent Significant Developments In The Law

In 1986, the U.S. Supreme Court first in Vinson v. Meriton Savings Bank declared that sexual harassment can be illegal sexual discrimination under Title VII of the 1964 Civil Rights Act. The court held that sexual harassment is illegal when the workplace is permeated with “discriminatory intimidation, ridicule and insult” that changes the conditions of the victims’ employment and creates an abusive working environment. Beyond that, however, the court gave little guidance to lower courts to sort through the myriad of issues involved in sexual harassment.

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Before the present term, the U.S. Supreme Court had issued just two major decisions on workplace sexual harassment. As a result, there has been a tremendous amount of litigation on sexual harassment issued with differing approaches and views on these issues in a number of lower courts.

It is expected that, with the Supreme Court hearing four significant sexual harassment cases this term, the justices will be able to provide sufficient guidance so that employees and employers will know what their rights and duties are and resolve the splits amount the lower courts.

The first of these cases was decided on March 4, 1998 when the Supreme Court ruled that same-sex harassment can violate Title VII of the Civil Rights Act of 1964 (Oncale v. Sundowner)

In the second case, argued on March 25, 1998, the Supreme Court will determine to what extent employers are liable for harassment to which top management has not been explicitly alerted (Faragher v. Boca Raton)

In the third case, also argued March 25, 1998, the Supreme Court will be deciding a related issue posed in the Faragher case; Should a school district be held liable for a teacher’s sexual harassment of a student, if the district had no actual knowledge of the teacher’s conduct.

The fourth case, argued in April, 1998, will be asking the Supreme Court to determine if mere threats, without adverse economic consequences or actual retribution, can support an action for quid pro quo sexual harassment. (Ellerth v. Burlington Industries)


The Federal Court lawsuit stems from Joseph Oncale’s four months of work in 1991 as a roustabout assigned to a Gulf of Mexico oil rig with Sundowner Offshore Services.

His lawsuit against Sundowner and the three men alleged that he was sexually assaulted, battered, touched and threatened with rape by his direct supervisor and a second supervisor. Another defendant, a co-worker, was accused of assisting in one of the incidents.

Oncale said he twice reported the situation to his employer’s highest ranking representative on the job site, but no action was taken. He said he quit because he feared that harassment would escalate to rape. All three men named as defendants say no illegal harassment occured, and portray their conduct as hazing or locker room horseplay.

The court, by a unanimous vote, ruled that same-sex harassment can violate Title VII of the Civil Rights Act of 1964. Justice Antonan Scalia stated, “Title VII does not prohibit all verbal or physical harassment in the workplace; it is directed only at discrimination because of sex.”

“We have always regarded that requirement as crucial, and as sufficient to ensure that courts and juries do not mistake ordinary socializing in the workplace such as male-on-male horeseplay or intersexual flirtation for discriminatory conditions of employment.”

Scalia’s relatively brief, seven-page opinion offered new guidelines for judges nationwide.


Beth Ann Faragher, a former lifeguard for the city of Boca Raton, sued the city on the grounds that it was responsible for the “hostile work environment” created by the harassing behavior of two supervisory lifeguards.

Boca Raton eventually disciplined the two men whose actions — vulgar and demeaning remarks and unwanted touching over a five-year period — were not in dispute. The critical issue in this case is the city’s own liability, one of the main unresolved issues in sexual harassment law.

Ms. Faragher won her case against Boca Raton at trial. But a U.S. Court of Appeals overturned the judgment in a 7 to 5 decision last year. The majority cited two main grounds for its decision against holding the city liable; that the two lifeguard supervisors were simply “seeking to further personal through their behavior and were not acting on the city’s behalf; and that despite Ms. Faragher’s complaint to a third supervisor, the city could not be held accountable for that man’s knowledge of the problem because he was not a high-ranking manager and had never passed the information along the chain of command.

Ms. Faragher’s appeal to the Supreme Court argues that, to the contrary, the supervisors abused their official authority, and the city should be deemed to have known about it.” The record of this case is a textbook example of agents using what power they have in the circumstances to sexually harass those who work for them.


Kimberly Ellerth, a marketing employee at Burlington Industries, alleged in her sexual harassment lawsuit that her boss made constant sexual remarks to her. Heallegedly rubbed her knee and told her that her legs were nice, but her breasts were too little. She says he once told her, “You know, Kim, I could make your job very hard or very easy at Burlington.”

Ellerth interpreted this to mean that she would have to have sex with her boss, a vice president, in order to get ahead. But, in fact, she never slept with him and she did get promoted.

The trial court ruled that Ellerth suffered quid pro quo harassment even though she suffered no actual retribution after rebuffing her boss’ sexual advances.

Burlington appealed and now the Supreme Court will decide the issue of whether an employee who has refused a supervisor’s sexual advances, and who has remained on the job without suffering adverse economic consequences, nonetheless can have a valid sexual harassment claim.

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