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Court Taking Workers Out of Harm's Way

NEWS ANALYSIS

June 28, 1998|DAVID G. SAVAGE | TIMES STAFF WRITER

WASHINGTON — It is not what you might have predicted from a conservative Supreme Court.

In a final flurry of rulings, the high court last week pressed ahead the quiet revolution in the American workplace, where boorish behavior and crude sexual advances are going the way of smoking in the office.

The compromise resolution of the two sexual harassment cases may symbolize the emerging character of the high court. The outcome in these cases, probably the most difficult of the term, avoided the ideological polarization that was the norm until about six years ago.

In four major decisions concerning job discrimination, the court expanded the reach of the civil rights laws and left employers subject to huge damage verdicts.

Victims of sexual harassment were told they could win damage suits against a company even if they suffered no direct job losses and had not complained about unwanted advances.

Companies were told they must rid their ranks of abusive supervisors or pay the price for the abuse. As one justice put it, the burden of stopping workplace harassment must now be seen as "one of the costs of doing business."

These legal protections are not limited to women who are harassed by men. Such protection also covers same-sex harassment, the court said earlier this year.

The justices also opened the door to a new era of anti-discrimination protection for the millions of Americans who have an impairment or a disease. In the first decision interpreting the Americans With Disabilities Act of 1990, the court signaled it will extend the measure broadly, covering not only those who are truly disabled but also those who have conditions that could prove disabling.

In a test case from Maine, the court ruled that a woman infected with the virus that causes AIDS is fully protected by the law, even though she has no symptoms of the disease.

Surprised and delighted, civil rights lawyers and women's rights advocates pronounced the court's term a success.

"It is a welcome change from previous years, when the court and Congress often seemed at war over civil rights laws," said Steven R. Shapiro, national legal director for the American Civil Liberties Union. "The price of discrimination has just gone up," he added.

The justices "have put sexual harassment into the category of wrongs that employers just cannot tolerate, like stealing from the company," said Abby Leibman, executive director of the California Women's Law Center in Los Angeles.

Plaintiffs' lawyers attending a national conference in Monterey "danced in the aisles" Friday when the pair of harassment rulings were announced, said Cliff Palefsky, a San Francisco attorney.

"In this field, big victories don't always happen," he said. "These decisions are going to compel employers to take affirmative steps to prevent harassment in the workplace."

Creating a bonanza for trial lawyers was not the court's goal, however. The justices said they hope to prevent discrimination and harassment in the first place. As Justice David H. Souter put it, the "primary objective" of the federal law "is not to provide redress [for discrimination victims] but to avoid harm."

To avoid harm for workers and employers, the justices announced a new set of rules for handling claims of sexual harassment. On the one hand, companies are liable for a worker's harassment by a supervising employee, even if officials knew nothing about it. However, employers can also successfully defend themselves if they prove they had a strong and effective policy against sexual harassment.

Throughout the 1980s, the high court was divided into two factions: a powerful, liberal bloc led by aging Justices William Brennan and Thurgood Marshall, and an equally staunch, if younger, conservative faction, led by then-Justice William H. Rehnquist and, later, Antonin Scalia. The two sides differed bitterly and fought repeatedly over such charged issues as the death penalty, abortion and affirmative action. In the court's end-of-the year opinions, both sides would fire verbal volleys across the divide.

Since the departure of Brennan in 1990 and Marshall in 1991, the ideological fervor has cooled and given way to a more even-tempered, pragmatic court. The results tend to reflect the moderate-to-conservative views of justices such as Anthony M. Kennedy and Sandra Day O'Connor, both appointees of President Reagan.

Both fail to satisfy conservative purists such as Scalia. Indeed, Scalia seems to reserve his angriest dissents for attacking O'Connor and Kennedy.

For true liberals, however, the court is even more disappointing. No one has filled the void left by Brennan and Marshall.

President Clinton's two appointees, Justices Ruth Bader Ginsburg and Stephen G. Breyer, have lived up to their advance billing as moderate liberals. Both also play the role of judicial technocrats, more interested in probing procedural technicalities than on focusing on broader issues of justice.

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