It Wasn't 'Simple Teasing'

James J. Kilpatrick
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Posted: Jan 11, 2006 8:19 PM

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!