Charles Bierbauer, CNN's senior Washington correspondent, reports on events in Washington and around the globe. Noted for his expertise in presidential politics, Bierbauer has spent more years at the White House than any U.S. president except Franklin D. Roosevelt.

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Sex And Power And The Law

By Charles Bierbauer/CNN

WASHINGTON (March 6)--The law "protects men as well as women."

With those words Justice Antonin Scalia, and a unanimous Supreme Court, this week extended the nation's anti-discrimination laws to same-sex harassment. That law, Title VII of the 1964 Civil Rights Act, forbids discrimination "because of ... sex." The law does not say which sex.

That was the court's point when it ruled oil worker Joseph Oncale could pursue his suit against three other men he claims harassed and humiliated him, falsely accused him of homosexuality and threatened him with rape when he took a job on an offshore rig in the Gulf of Mexico. Lower courts had told Oncale he had no case if his complaint was against another man. The Supreme Court said he might.

Civil rights and gay rights organizations hailed the decision.

"Heterosexual, gay, male, female. This is an even-handed rule. It creates a very even playing field," said Elizabeth Birch of the Human Rights Campaign.

The justices may have only just begun to bulldoze the landscape of coercive sexual relationships in the American workplace. Three more sexual harassment cases are on the court's calendar this term, to be argued and decided by the end of June.

Faragher v. Boca Raton. A former beach lifeguard contends the Florida city bears responsibility for two male supervisors who offended the female lifeguards.

"He'd make comments about the size of my breasts, the shape of my legs. He'd invite me to shower with him," says Beth Faragher who endured that behavior for five years while she was a college student. When she complained to another male supervisor she was told "City Hall doesn't care."

Gebser v. Lago Vista Independent School District. A parallel case that holds a school should be liable under federal education laws for the behavior of a teacher who forced a 14-year-old into a sexual relationship.

"She was terrified to tell because she would not be able to take the advanced placement college courses (which he taught)," says Yolanda Wu, an attorney with the National Organization For Women (NOW) Legal Defense Fund. "There was no school harassment program, so she didn't know where to go."

Burlington Industries v. Ellerth. A "quid pro quo" case where a supervisor suggests the road to a better job is paved with sexual favors.

"Wearing shorter skirts would make my job much easier," a senior manager told sales representative Kimberly Ellerth. She rebuffed his advances and was still promoted.

"Some call this the 'no harm, no foul' case," says NOW's executive director Kathy Rodgers. "But there is harm."

NOW's legal team sees the four sexual harassment cases together as the

most significant social issue the Supreme Court will tackle this term.

"There are serious conflicts in the lower courts," Rodgers notes.

There are serious allegations of sexual harassment throughout society. Rodgers needed to list just a few cases to make her point: the Japanese auto manufacturer Mitsubishi, the investment firm Smith-Barney, the Sergeant Major of the Army Gene McKinney, the president of the United States - on two counts.

NOW sees the Supreme Court decision on same-sex harassment as "a strong signal that sexual harassment is a real and serious problem and that employers must stamp out such discrimination" but wishes Justice Scalia's opinion had been voiced just a little stronger.

"You can be so dignified that you obscure the reality of what is going on," Rodgers says.

Where Scalia wrote that Oncale had been "physically assaulted...in a sexual manner," she'd spell out that the young man had been pinned in the oil rig's shower and assaulted with a bar of soap.

It's not pleasant for Beth Faragher - who left Boca Raton, went to law school and is now a public defender in Denver - to recount her experience in blunt terms, but she does so to explain why she's taken her case to the Supreme Court.

"He tackled me on the beach," she says of one lifeguard captain. "And said, 'If you had tits, I'd do you in a minute'."

No one expects the Supreme Court to specify what constitutes sexual harassment. In it's Oncale decision, Scalia wrote, the court was not creating a "civility code for the American workplace." But the justices seem intent on putting employers on notice that they cannot be blind to its existence. The laws in question specifically prohibit discrimination in the workplace.

Justice Clarence Thomas, who was himself accused of sexual harassment during his court confirmation hearings, concurred with Scalia's opinion but added a one paragraph caveat that the "plaintiff must...ultimately prove... discrimination."

Scalia cautioned that courts must not mistake "male-on-male horseplay" or "intersexual flirtation" for discrimination, but must exercise "common sense" and "appropriate sensitivity."

In the heated courtroom of sexual accusations and innuendo that Washington has become these days with the Paula Jones and Monica Lewinsky cases that swirl around the president, the words of Justice Scalia were both stern and temperate.

The accusations againstClinton are really more about power than about sex. But the problem with sexual harassment is that it is about power, too.

Friday March 6, 1998

• McDougal Attends Pre-Trial Hearing
• Chung To Implicate Chinese State Business In Moneytrail
• Gore Presses The Flesh In New Hampshire
• Sources Confirm Aspects of Clinton Deposition
• Affirmative Action Program Preserved In Highway Bill
• Hawking Offers New Age Science View
• Lawmakers Criticize Internet Salary
• New Medicare Commission Begins Work
• Town Election Decided By Poker Hand
• Speaking Tour To Launch White House Tobacco Push
• Shaken Miami To Remain Mayor-Less Until Next Week
• Ambassador's Widow Sues Arianna Huffington, National Enquirer
• Reno Gives Daley Drug-Fighting Idea Warm Reception