CHICAGO CASE MAY CLARIFY LAW ABOUT SEXUAL HARASSMENT

Q: When the Supreme Court first declared sexual harassment illegal more than a decade ago, the immediate effect was confusion. Were dirty jokes around the water cooler off limits? Could a supervisor compliment a worker's dress? Is a swimsuit calendar inappropriate? The answers weren't so easy because the court's landmark opinion, while sweeping in scope, provided few details. That job was left to the lower courts, which have drawn some radically different conclusions about what constitutes illegal sexual harassment and when a company is responsible.

A: chatter this year, so too has it preoccupied the Supreme Court. Already it has heard three significant cases that will give new focus to the often murky law, and this week, it will take up the fourth and possibly most controversial. It is the same Chicago case Posner had urged the justices to review. In it, the court will decide whether an employee can sue for sexual harassment even if she suffers no tangible job setbacks after rebuffing her supervisor's advances. "The significance of the case is, how far does a supervisor have to go before the company is held liable or exonerated?" said Ernest Rossiello, the lawyer for Kimberly Ellerth, who sued her employer after a supervisor allegedly harassed her. "Are mere threats or intimidating remarks sufficient to sustain the claim or does the woman have to suffer an economic or tangible job detriment?" The case is important on its own because it could greatly expand the scope of sexual-harassment law, but it takes on an added dimension, lawyers said, because it intersects with Paula Jones' sexual-harassment lawsuit against President Clinton. After a Little Rock, Ark., judge this month threw her claim out of court, Jones' lawyers said the Supreme Court could revive it in the Chicago case. That's because U.S. District Judge Susan Webber Wright said Jones' claim was faulty, in part, because she hadn't suffered any economic harm. Rossiello and other lawyers don't give Jones much hope if she plans to rely on Ellerth's case because they said the facts are so different. But they disagree on whether Jones will succeed on

other avenues in her appeal of Wright's ruling, a division of opinion that captures the unsettled nature of the law. "So many of these cases are being litigated, and there's such a divergence of opinion among the circuits," said Debra Katz, a Washington lawyer who handles sexual-harassment cases. "It's critical for the court to give very clear guidance to the lower courts." In Ellerth's case, for example, a divided federal appeals court in Chicago said employees could sue for harassment even if they could not show they suffered a job detriment after rebuffing a supervisor's advances. Other appeals courts have said the company would not be liable in such cases.