(8 of 8)
The third case before the court, arguably the most important of this term, was brought by a marketing employee at Burlington Industries. Kimberly Ellerth says her boss's boss made constant sexual remarks to her. He allegedly rubbed her knee and told her that her legs were nice but her breasts were too little. She says he once told her, "You know, Kim, I could make your job very hard or very easy at Burlington." Ellerth interpreted this to mean that she would have to have sex with the executive, a vice president, in order to get ahead. But in fact she never slept with him--and she did get promoted. A lower court ruled that Ellerth suffered quid pro quo harassment anyway--without actual retribution. Jones' lawyers have cited this ruling prominently. Burlington appealed, and now the Justices must determine if quid pro quo harassment can include mere threats.
Even after the court rules on these matters, there's likely to be confusion about sexual harassment. The end of the old patriarchal system, in which male bosses behaved as they pleased with female subordinates, has necessarily complicated gender relations in American offices. To sort out who is misbehaving now, the law must rely on subjective notions of power and courtship, sex and sensitivity. The best company policy would allow co-workers their freedom and privacy but punish truly unwanted, harmful behavior. But no one has figured out exactly what that policy should be--least of all the lawyers and judges who keep adding new loops and threads to the complex web of sexual-harassment law.
--With reporting by Jay Branegan and J.F.O. McAllister/Washington, Dan Cray and Margot Hornblower/Los Angeles, Pat Dawson/Billings, Rod Paul/Portsmouth and Elaine Rivera/Southampton