Consider this scenario: A woman interviews for a job. A vice president in the company stares at her breasts and legs during the interview and asks whether she is "practicing" to have a family. Although she is uncomfortable, she takes the job because it is a good opportunity and she needs the money.
The two work in different cities. During business calls, the vice president makes comments like, "How are those legs of yours?" and "It must be hard for a woman like you to have a job like that--a woman with great legs." During one conversation, he says he has no time to talk to her unless she first tells him what she's wearing. On one business trip, he says, "You know, I could make your life very hard or very easy." At an office party, he pats her buttocks and stares at her legs.
During her performance review, he tells her he has reservations about promoting her. She asks whether it is because she is not "loose" enough for him, and he says yes. He promotes her anyway, but suggests that she sleep with him.
Does this woman has a sexual harassment claim? She was promoted and received raises. Some argue that since she advanced in her job, she didn't suffer what's legally called "tangible" job detriment or "economic injury," and thus does not have a sexual harassment claim.
Sound familiar? Lack of evidence of tangible job detriment was one of the reasons Judge Susan Webber Wright dismissed Paula Jones' case. Among other things, Wright said that since Jones' pay wasn't cut and she wasn't demoted, she didn't have a sexual harassment claim.
While Wright's ruling does not set precedent outside of her Arkansas district, the Supreme Court's ruling on this very issue in the case described above, Burlington Industries vs. Ellerth, will be the law of the land. In Burlington, to be argued today, the court will answer the question: If one doesn't suffer any job loss, pay cut, demotion or other tangible job detriment for refusing sexual advances, does the threat of job consequences alone amount to sexual harassment?
We argue that it does.
Sexual harassment causes serious harm even when there is no obvious loss of economic benefits, by creating a discriminatory burden that makes the job more difficult for harassed employees. The appeals court found that the facts of Kimberly Ellerth's case constituted sexual harassment because the supervisor's conduct affected the "terms and conditions" of her job under Title VII of the Civil Rights Act of 1964, the federal law that prohibits sex discrimination in employment. Recognizing that sexual harassment can cause a wide range of harms is central to Title VII's underlying goals. Nothing in the law limits sexual harassment to "tangible" or economic injury.
