Supreme Court rejects 'severe psychological injury' standard for sex harassment.

Less than a month after hearing arguments in Harris v. Forklift Systems, the U.S. Supreme Court ruled that to recover damages in sexual harassment cases, plaintiffs do not have to prove that the way they were treated caused them severe psychological injury or hurt their job performance. (No. 92-1168 (Nov. 9, 1993).) The unanimous decision puts the focus on what the wrongdoer did instead of how the victim reacted. The Court sent Harris back to the Sixth Circuit for reconsideration. (See Joan Biskupic, Sexual Harassment Protections Bolstered, Wash. Post, Nov. 10, 1993, at 1.)

Justice Sandra Day O'Connor, who wrote the opinion, said psychological injury is just one factor among many that courts can consider. Others include "the frequency of the [harassing] conduct; its severity; whether it is physically threatening or humiliating or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Federal law "comes into play before the harassing conduct leads to a nervous breakdown," she said.

The case is only the second the Court has heard on sexual harassment. In the first, Meritor v. Vinson, the Court ruled that sexual harassment is a form of discrimination actionable under Title VII --whether or not it has hurt the victim economically--if it "has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive work environment." (29 C.F.R. [sections]1604.11a (1985), quoted in Vinson, 477 U.S. 57, 65 (1986).)

The environment is hostile, the Court ruled, where sexual harassment is "sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment." (Vinson, 477 U.S. 57, 67.) The circuits have been divided on what makes conduct actionable rather than annoying--whether to use a "reasonable person" or a "reasonable woman" as the standard victim, and whether the victim must prove that the offensive conduct impaired her work performance and damaged her psychologically.

The claim before the Court was brought by Teresa Harris, who worked for two years as a sales manager at Forklift Systems, a heavy-equipment sales and rental agency in Tennessee. Her supervisor, company owner Charles Hardy, often addressed sexual remarks to women employees. For example, he asked women to get coins from his front trouser pockets. Hardy made many such remarks to Harris; he called her a "dumb-ass woman" and suggested they go to the Holiday Inn to negotiate her raise.

Harris says she was humiliated and believed his comments undermined her authority with subordinates, but rather than complain, she worked harder and tried to fit in.

After two years she asked Hardy to stop making the comments. He apologized, said he was just joking, and promised to stop. But a few weeks later he suggested publicly that she had won a new account by offering sex. She resigned and filed a complaint for hostile environment and constructive discharge with the Equal Employment Opportunity Commission (EEOC).

The U.S. magistrate who heard Harris's claim ruled that Hardy's comments were indeed vulgar, crude, and demeaning but did not sink to the level of sexual harassment. (1991 WL 487444 (M.D. Tenn. Fcb. 4, 1991).) Harris failed the Sixth Circuit tests for recovering damages for sexual harassment established in Rabidue v. Osceola Refining Co. (805 F. 2d 611 (6th Cir. 1986)), the judge wrote, because her work performance had not declined and she had not suffered psychological injury. The intermediate courts concurred.

The Supreme Court discussion in October was lively. Chief Justice William Rehnquist asked whether there would be a claim if Hardy had sexually denigrated both men and women. When Irwin Venick, Harris's lawyer, said no, Justice O'Connor said that even without verbal attacks, a workplace full of lewd posters and graffiti could give rise to a hostile-environment claim.

New Justice Ruth Bader Ginsburg pointed out that sexual harassment is illegal discrimination because it makes it harder for members of one sex to get the job done. "The terms and conditions of employment are not equal if one person is being called names and the other isn't." Her brief separate concurrence also made this point.

Justice Clarence Thomas, the former head of the EEOC whose Supreme Court confirmation hearings were marked by a hotly disputed complaint of sexual harassment, did not participate in the discussion or write a separate opinion.