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Politics : Bill Clinton Scandal - SANITY CHECK -- Ignore unavailable to you. Want to Upgrade?

To: wonk who wrote (5230)	9/25/1998 6:11:00 PM
From: dougjn	Respond to of 67261

Finally took the time to take a look at the Supreme Court's recent Burlington Industries case. It seems to me that it is most unlikely to influence the outcome of the Paula Jones appeal. One can also understand why some thought the decision MIGHT affect the Jones case, before the decision came down. But the Court decided the case on grounds that little effect Jones. The key issue in Burlington was whether "vicarious" employer liability could be found (and not just liability for the bad acting manager himself) in a case where a hostile work environment was found by the trier of fact below, but a necessary element of "quid pro quo" harassment was not found. (In its seminal case that established actionable sexual harassment law, the Supreme court had established those two, separate, ways of proving sexual harassment. (Meritor Savings Bank).) The element of quid pro quo (put out or get out) sexual harassment that was not proved was tangible work detriment. Threats were proven. If the Supremes had said threats were enough for that element of quid pro quo, Burlington would move one of the two or so steps necessary to overturn the Jones decision. Instead the Court said, essentially, that the employer can be liable (vicarious liability can be found) in hostile work environment cases. (The reasons why this wasn't immediately obvious before this decision have to do with technical issues in the common law (judge made) area of agency law.) The Court also said that an employer can raise certain affirmative defenses which will get it off, such as having a sufficient anti-harassment policy which is well publicized, and showing that the employee didn't take advantage of the policy. It's a limited, and balanced decision that found a way to remove a technical and largely non-sensical limitation on going after the deep pocket in the hostile work environment side of harassment law. Doesn't affect throwing out the Jones case for failing to show either pervasive conduct (hostile work environment) or actual damages. Doug