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