Don't Try This At The Office

By John Cloud

Chief executives in heat should probably not look to Judge Susan Webber Wright's ruling as a license to terrorize. True, even with the Rutherford Institute's money and a team of highly motivated lawyers, advantages most sexual-harassment plaintiffs don't have, Jones lost. What is more, many judges think sexual-harassment claims have gone too far, that one-time propositions like Clinton's should not be the basis for litigation. Call this the "no harm, no foul" school, and include among its proponents a majority of the Supreme Court. Justice Antonin Scalia, for instance, recently wrote that sexual-harassment law should not be interpreted as a "general civility code" for the nation. (As the famously brusque Justice surely knows, rudeness is all-American and fully constitutional.)

Nonetheless, even as such conservative jurists as Wright and Scalia have limited what counts as sexual harassment, they and their liberal counterparts have consistently broadened the grounds on which Americans can sue for it. Every time the Supreme Court has ruled on workplace sexual harassment, it has broadened the scope of "standing" for those claims: from the simple, easily understood quid pro quo (if Clinton had said, "Kiss it, or you're fired," for example) to the more convoluted cases like those involving a "hostile work environment." Just last month the Supreme Court, usually hostile to gay rights, even allowed same-gender sexual-harassment cases to proceed. So the attitude seems to be, "You can sue for almost anything; but once in court, the bar will be set very high." Courts have settled on this compromise because they know that sexual-harassment cases involve a mountain of individual context. Cases can evolve remarkably once all the evidence is presented to a judge--which is why some relatively minor cases are allowed to proceed (including one involving a Miller Brewing Co. employee who accused a colleague of sexual harassment after he described a randy Seinfeld episode), and why some egregious cases are eventually dismissed (including one involving a Rockwell International Corp. parts inspector who was allegedly groped, fondled and threatened repeatedly by a co-worker).

The reason all this is important is that every company in the world wants to avoid lawsuits. And thanks to the sexual-harassment rulings, it is easier than ever to file one. Wright's decision doesn't change that. Indeed, because most companies pay settlements to make cases disappear, it should be sobering that even Jones' weak case got as far as it did. If business groups had their way, judges would limit standing for sexual-harassment cases to ones claiming a strict quid pro quo. Wright's ruling did not do that. It merely said that Jones, who had little credible evidence of a quid pro quo or a hostile environment, could not win her lawsuit.

What Wright's ruling also didn't say is that even if the courts don't nail harassers, their companies probably will. Most big firms now have harassment guidelines and a company official assigned to enforce them--and some, like Wal-Mart and General Motors, have strict zero-tolerance rules prohibiting even the most casual sexual joke, to say nothing of dropping trousers. So the courts may be tied in knots over harassment, but businesses have simplified things. Some men have been fired for simply making off-color remarks. They can sue for wrongful termination, but success in those cases is rare (especially in "work at will" states, which allow employers to fire employees for no stated reason). So harassers, beware: Wright's ruling hasn't turned the workplace into a sexual free-play zone.

--By John Cloud