James J. Kilpatrick

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.


James J. Kilpatrick

James J. Kilpatrick has been reporter, editor, columnist, commentator, and briefly an adjunct professor of journalism.

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