Legal protection against sexual harassment on the job has been bolstered by a U.S. Supreme Court ruling, but the decision raises new questions about a related issue: How much freedom of speech is there in the workplace?
The high court ruling is expected to make it easier for workers to win damages if they are ridiculed or otherwise offended on the job. The decision says that workers can win lawsuits for sexual harassment--as well as harassment based on race, religion or national origin--even if they cannot prove they suffered a psychological injury such as a nervous breakdown.
In its ruling, the court signaled that the key test for harassment under federal civil rights law is whether comments or behavior in a work environment "would reasonably be perceived, and is perceived, as hostile or abusive."
But the court, in its decision Tuesday, said little about how to draw the line between improper and permissible conduct or speech.
"The sleeper issue here is, when does the right of one person to be free from offensive comments and jokes infringe on the free-speech rights of another party to discuss social and sexual issues while in the workplace?" said Frank Cronin, a Los Angeles management lawyer who specializes in employment issues.
To be sure, Justice Sandra Day O'Connor, writing for the court, reaffirmed that "the mere utterance" of an epithet that "engenders offensive feelings in an employee" is not enough to establish harassment. She said the same for "conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment."
Nancy Duff Campbell, co-president of the National Women's Law Center in Washington, said in support of the court ruling that in a "confined workplace," there should be "a different standard for the kinds of speech that can be directed at you than there would be in the broader world."
In the workplace, she said, "you don't really have the free choice to read or view material that you do in society as a whole."
While a number of experts contended that employers will have to retrain employees and crack down harder on sexual harassment because of Tuesday's ruling, some employers disagreed.
"Most companies already have strict policies in place," said Terri Baas, president of Candela Corp., a wholesale distributor of lighting in Santa Ana and a director of the Orange County Chapter of Women in Business.
"At our company, it's a moot point whether somebody would be permitted to harass a little bit or enough to cause psychological damage," she said. "It is not tolerable behavior, period."
Freedom of speech is not the issue, Baas said: "Anybody who invokes the right to free speech as the right to sexual harassment doesn't understand the Constitution."
The American Civil Liberties Union, which filed a brief in the case, lauded the court's decision for the balance it struck between the issues of free speech and sexual harassment.
"The court made a conscious decision to seek a middle path between two extremes," said Steven R. Shapiro, the ACLU's legal director. "This is only the first step in what will be a long road toward solving the problem, but I think it's an appropriate first step."
But the immediate impact, Shapiro conceded, is "highly unknown at this moment."
Shapiro said employers will have to walk a "tightrope" to make sure that they neither "condone speech that truly amounts to sexual harassment" nor let people "use the threat of a sexual harassment lawsuit to impose political orthodoxy in the workplace."
Lawyers were divided over whether the ruling would spur a surge in sexual harassment suits. Cronin predicted that "more people, both men and women, are going to blackmail their companies with sexual harassment claims."
Cronin said employers will also face more lawsuits from workers who are fired or otherwise disciplined "for saying something crude or making sexual innuendoes or overtures."
But Michelle Reinglass, an attorney in Laguna Hills and president of the Orange County Bar Assn., said the Supreme Court decision merely overturned a "deviant ruling" by a lower court. "Those of us who practice in the field have always operated under the assumption that one does not have to prove severe psychological damage," she said.
In fact, Reinglass added, many clients she has represented have won sexual harassment cases without proving extreme psychological distress.
"The majority of women harassed never see a psychologist," she said. "They reach a point where they wake up in the morning with a sense of dread about going to work, but you might not be able to define that feeling as trauma."