It
wasn't simple teasing
By James J. Kilpatrick
USAToday
Wed Jan 11, 8:15 PM ET
To newlywed Brigitte Wright, the off-color barrage from her co-workers
was sexual harassment. To Tony Sims, sheriff of Rolette County, N.D.,
it was just funnin' around. To the U.S. Court of Appeals for the 8th
Circuit, the slurs were "more serious than simple teasing." Now the
Supreme Court has been asked to draw a fine line.
These were the facts: Mrs. Wright began working for the sheriff in
September 2000. After an uncomfortable two years as the lone woman in
the office, she resigned. The years were made unbearable by the almost
unremitting stream of vulgarities poured upon her by male deputies.
Most of these friendly insults were unprintable in a family newspaper.
A mild sampling would include "dizzy bitch" and "piece of Canadian
bacon."
After a while, she complained to the county commissioner. He said the
sheriff's office was beyond his reach. She appealed to the Rolette
County state's attorney. No luck there. Her doctor prescribed Celexa
for depression, Xanax for anxiety and panic attacks. Her blood pressure
mounted. Finally, in April 2002, she was placed on administrative leave
while the county hired an attorney to investigate. The attorney
concluded, mildly, that the vulgarities, "though inappropriate, were
not unwelcome." Much later, Circuit Judge Gerald W. Heaney would
comment that the attorney "had no understanding of even basic sexual
harassment law."
For a few weeks her colleagues relented, but then the barrage resumed.
She quit. Fed up, she sued the sheriff and the county commissioners
under the basic federal law on civil rights, 42 USC 1983. Sheriff Sims
moved to dismiss: As an officer of his court, he enjoyed "qualified
immunity" from suit. The U.S. District Court for North Dakota denied
his motion. A three-judge panel of the 8th U.S. Circuit emphatically
affirmed. Now his appeal is pending before the Supremes.
In his petition to the high court, the sheriff argues that Wright's
claim of sexual harassment is based upon verbal harassment alone. There
is no allegation of physical touching or sexual propositioning. The 8th
Circuit's opinion, that she had a constitutional right to be free of
verbal sexual harassment, "stands alone among other circuit courts." He
cites opinions from the 1st and 10th Circuits in support of his
position.
The law is well established that physical harassment in a workplace is
actionable under Section 1983. Given the evidence in the case of Mrs.
Wright, all three circuit judges concluded that the law's reach should
be extended.
Judge Michael J. Melloy, speaking for the panel, ruled that "verbal
harassment of a sexual nature which creates an offensive working
environment" qualifies under the law. Evidence of simple teasing,
offhand comments and isolated incidents may not trigger the statute.
But here, "Sims' behavior was more serious than simple teasing, and it
was not sporadic nor isolated." Moreover, it constituted gender
discrimination of a kind forbidden by law.
Judge Kermit E. Bye concurred. There is no bright line, he said,
between serious sexual harassment and merely unpleasant conduct. The
degree of "unwanted physical contact" figures in the calculus.
Repetitive offensive touching, coupled with pervasive sexual innuendo,
plainly crosses a boundary line. Here there was no evidence of physical
conduct, but the sheriff's offensive behavior as Wright's superior was
neither infrequent nor innocuous. It was frequent and severe -- and "if
Mrs. Wright's allegations turn out to be true" his conduct falls
outside the defense of qualified immunity.
Judge Heaney dissented in part but vigorously concurred on the essence.
Mrs. Wright was forced to endure "extreme, harassment-based
humiliation." In the sheriff's office, "sexually explicit and offensive
conduct was the order of the day." She was the sole female on the
premises. As such, she regularly found herself "the target of Sims'
lewd behavior and comments." Her efforts to go through channels of
complaint were fruitless. She had reason to believe that after a few
weeks' hiatus, the old pattern would return.
My guess is that the Supreme Court will deny the sheriff's petition for
review and thus return the case against him for trial on its merits.
The court has a rule against hearing cases before final judgment in the
courts below. The rule -- a generally sound one -- is to put off until
tomorrow a question that doesn't have to be decided today. Patience!
Other circuits may contribute significantly to the distinction between
physical and verbal abuse.
Such judicial procrastination may be hell for the contending parties,
but it's fun for the lawyers and for reporters who cover the court. Let
the pot bubble!