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Court boosts legal powers of harassed

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The Supreme Court Friday made employers easier targets for lawsuits by employees whose supervisors sexually harass them. The court's new guidelines came in a pair of 7-2 rulings of enormous importance for America's workplaces.

Concluding its 1997-98 term, the court ruled in cases from Chicago and Boca Raton, Fla., that employers always are potentially liable for a supervisor's sexual misconduct toward an employee."An employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee," Justice Anthony M. Kennedy wrote for the court in one of the linked decisions.

"When no tangible employment action is taken, a defending employer may raise an affirmative defense to liability or damages, subject to proof by a preponderance of the evidence," he said.

To succeed in such a defense, employers would have to show they "exercised reasonable care to prevent or correct promptly any sexually harassing behavior" and that "the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise," the court said.

The justices also turned away Rachel Bauchman's appeal of her lawsuit against music teacher Richard Torgerson and the Salt Lake School District.

The court, without comment, refused to revive Bauchman's lawsuit that accused Torgerson of violating her religious rights by using his class to promote his religion.

Last year, a three-judge panel of the 10th U.S. Circuit Court of Appeals, split 2-1, dramatically limited the lawsuit's chance of success. The full 10th Circuit voted 6-6 in January against reviewing that decision.

The action sets no national precedent but leaves intact the appeals court panel's ruling as binding law in Utah, Colorado, Kansas, New Mexico, Oklahoma and Wyoming.

Lawyer Ross Anderson, who represented Bauchman, said the effort was not fruitless. "I think the lawsuit has sensitized everyone to the need for appreciating diversity and not imposing the views of anyone in a governmental position on public school students," he said.

Also Friday, the court let the government continue banning the sale of Penthouse and other sexually explicit magazines on military bases.

The court, without comment, turned away free-speech arguments by Penthouse's publisher that the ban enacted by Congress in 1996 wrongly discriminates against magazines that "deal with sexuality as healthy and enjoyable."

Justices Clarence Thomas and Antonin Scalia dissented in the harrassment ruling. Writing for the two, Thomas said the court "manufactures a rule that employers are vicariously liable if supervisors create a sexually hostile work environment, subject to an affirmative defense that the court barely attempts to define."

Thomas objected that the court's rule "applies even if the employer has a policy against sexual harassment, the employee knows about the policy and the employee never informs anyone in a position of authority about the supervisor's conduct."

The court also ruled that sexual-harassment law no longer will rely heavily on the differences between "hostile-environment" and "quid pro quo" cases, most vividly illustrated by the supervisor who tells an employee, "Sleep with me or else."

Calling the two terms "of limited utility," the court said such a supervisor's threat - if it proves to be an empty one - can be a hostile-environment form of harassment that could leave an unknowing employer liable.

The rulings, respectively, revived a former lifeguard's lawsuit against Boca Raton, Fla., and kept alive an Illinois woman's lawsuit against her former employer.

The decision in the Illinois case conceivably could aid Paula Jones' effort to revive her sexual-harassment lawsuit against President Clinton.

Jones accused Clinton of propositioning her when he was Arkansas governor and she was a state employee. A federal judge, relying on a standard imposed by the appeals court with jurisdiction over Arkansas, threw out the lawsuit and said employees can collect damages only if their refusal to submit to sexual demands results in on-the-job retaliation.

In Jones' case, the judge ruled that she had not shown any adverse on-the-job consequences.

Jones' lawyers said earlier this month they were awaiting Friday's decision before filing an appeal. But the impact of Friday's ruling for Jones' case could be limited because the trial judge who dismissed her lawsuit said she did not show that Clinton ever made a clear threat of retaliation.