RULING EXPOSES THE MAN BENEATH THE ROBE : DISSENT IN SEX-HARASS CASE SHOWS CLARENCE THOMAS DOESN'T GET IT YET.

Byline: JONATHAN SHAPIRO Local View

CLARENCE Thomas may not be the most powerful Supreme Court justice, but he certainly has the most chutzpah.

Last week, a majority of justices held that if a job supervisor hits on a worker long enough and hard enough, the company that employs the supervisor can be sued by the worker for sexual harassment, even if the company did not know what was going on, and even if the worker is promoted after telling the pesky supervisor to bug off.

Discretion being the better part of valor, one might have expected that if Thomas disagreed with this decision, he would have quietly voted against it. Based on his virtual silence during oral arguments at the court and his rare public appearances, one might have been justified in assuming that Thomas had adopted the very sensible policy of staying as quiet as possible for as long as possible in the fervent hope that one day, nobody would be able to remember who Anita Hill was.

But the nation's most famous accused sexual harasser loudly let the world know he was against letting the victim sue. Writing only for himself and fellow Justice Antonin Scalia, Thomas complained in a vehement dissent that the court's decision was unfair to the employer. It would lead to further litigation. It would give the plaintiff in a sexual harassment suit more rights than a plaintiff in a race-based civil rights suit. Worst of all, it would create an Orwellian society.

``Sexual harassment is simply not something that employers can wholly prevent without taking extraordinary measures,'' Thomas wrote, seemingly in a near panic. The only way to stamp out the menace of supervisors pressuring their underlings for sex, Thomas wrote, would be through ``constant video and audio surveillance . . . that would revolutionize the workplace in a manner incompatible with a free society.''

Perhaps Thomas is to be forgiven for linking claims of sexual harassment with videos; after all, his own choice of video rentals played a disturbing role in his memorable confirmation hearing. But Thomas could not be more wrong about the majority's decision. Rather than turning sexual harassment lawsuits into lotteries, where victims might win millions, the court pretty much assured that companies would never have to worry about losing a sexual harassment lawsuit again.

Like a lot of Supreme Court cases, this one is more interesting if you know the facts. For 15 months, Kimberly Ellerth worked as a salesperson in the Chicago office of Burlington Industries Inc., a business with 22,000 employees and 50 plants around the country. Ted Slowik, who worked in the New York office, was a supervisor, but not Ellerth's immediate supervisor.

During a business trip, Slowik invited Ellerth to a hotel lounge and she went. But Ellerth became offended when Slowik made inappropriate sexual comments and became scared when he told her he could make her life difficult. Slowik later said equally stupid things.

Yet Ellerth never complained about the comments, even though she knew the company had a policy against sexual harassment. She quit her job when her immediate supervisor cautioned her about not returning customer phone calls, but when she quit, she did not mention that Slowik's conduct was the cause of her quitting. That did not come until she decided to sue.

The court did not say that Ellerth will win her lawsuit. Indeed, the court did not even suggest that she should win her lawsuit. In fact, the court held that if Burlington acted reasonably to try and prevent sexual harassment, such as by having a policy against it (the company did), and Ellerth unreasonably failed to take advantage of that policy, say, by not reporting the conduct (Ellerth did not), Burlington would win the case and Ellerth would take nothing.

Based on the facts, it seems absolutely clear, and the court all but said, that Ellerth is destined to lose her lawsuit. All the justices held was that Ellerth ought to have her day in court.

It may not help Ellerth, but the court's decision does some real good for the rest of us. It makes the workplace safer and more reasonable.

It protects the vulnerable from having to choose between getting a paycheck while fending off unwanted sexual advances or quitting without legal redress. It reminds employers that if they want to employ pigs as supervisors, they do so at the risk of losing lots of money in lawsuits. And it requires victims to not act like victims. Now, people like Ellerth have to stand up for themselves and report harassment when it happens or else forget winning a lawsuit down the road.

Ultimately, then, the decision protects employers. Businesses big and small will never again have to worry about having to go bankrupt because a supervisor couldn't control himself. By making it clear that sexual harassment will not be tolerated and by having a plan in place to deal with claims of harassment, businesses can and should defeat a plaintiff in any sexual harassment case.

All of which makes Justice Thomas' position on the matter so interesting. Supreme Court dissents, unlike majority opinions, have no legal authority and neither side in a lawsuit can rely on it in court. They are, in essence, the ungracious squawk of the losing side of the debate. But dissents can offer interesting insights into what individual justices are thinking.

Thomas' profoundly personal dissent in the Ellerth cases shows once again that when it comes to the question of sexual harassment, he still doesn't get it.