The court must decide whether a company or school district can be forced to pay victims even if it did not know the harassment was occurring.
Freeing unaware employers from liability "rewards ostrich-like behavior," said William R. Amlong, the lawyer for a former Florida lifeguard sexually harassed by her supervisors. "It's hear no evil, see no evil, pay no lawsuit."
But the lawyer for a Texas school district where a teacher lured a ninth-grade girl into a sexual relationship argued it would be unfair to make employers legally responsible when they don't know.
"There were no rumors, no gossip," about the teacher's seduction of a 14-year-old girl, said lawyer Wallace Jefferson. The teacher eventually was barred from teaching and jailed for sexual assault.
The cases are being closely watched by employers and civil rights groups because the potential sting to an employer's pocketbook is viewed as the key to how stringently sexual harassment is discouraged.
"From an employer's perspective, trying to find out sexual harassment of the subtle variety ... is nearly impossible," said Harry A. Rissetto, the lawyer for Boca Raton, Fla., where Beth Ann Faragher worked as a lifeguard.
"What is subtle about what is described here?" responded Justice Ruth Bader Ginsburg. Faragher says she was tackled, slapped on the rear end and subjected to sexual comments about her body.
Many women fear retaliation if they complain about sexual harassment, Amlong said. Boca Raton had a sexual harassment policy, but it was not circulated and there was no complaint procedure.
However, Justices Antonin Scalia and Sandra Day O'Connor questioned the need for such a policy.
"Don't you think every employee in the country knows that if they're mistreated they can complain to somebody higher up the ladder?" O'Connor asked.
A federal appeals court ruled Boca Raton could not be forced to pay damages to Faragher. She also sued the two men individually and won $10,000 in damages.
The Florida case involves a federal law barring on-the-job sexual discrimination; the Texas case focuses on a separate law that bars sexual bias in educational programs that receive federal money.
O'Connor said the court must answer the tough question of whether both laws impose the same standard of employer liability.
In the Texas case, Alida Star Gebser is asking the justices to revive her lawsuit against the Lago Vista Independent School District in Travis County over a sexual relationship she had with a teacher in 1992 when she was 14.
Gebser said the man used his position as a teacher and mentor to lure her into the relationship. She acknowledged she did not tell her family or school officials about it.
School officials said the could not be held responsible unless they had "actual knowledge" of a risk of sexual harassment. A federal appeals court agreed and threw out Gebser's lawsuit.
Gebser's lawyer, Terry Weldon of Austin, told the justices the school board should not escape liability for former teacher Frank Waldrop's "concerted campaign to seduce her."
The court is expected to rule in the two cases in July.
Written by Laurie Asseo
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