Sex, Lies And Pieces Of Eight

By Charles Bierbauer/CNN

WASHINGTON (Dec. 12) -- Sex may be where the Supreme Court draws the line in its current term. Sexual harassment, that is.

The justices have already heard one harassment case and will hear at least two more in the months ahead. They cover a range of circumstances: a life guard and her supervisor, a student and her teacher, an oil rig roustabout and the guys he had to work with.

The "same sex harassment" case -- Oncale v. Sundowner -- raises the broadest prospects of the Supreme Court expanding anti-discrimination laws. The Civil Rights Act itself does not spell out just what might be covered. The court has already included harassment of women by men ... and men by women. Now other combinations are contemplated.

"A Jew could discriminate against a Jew, an African-American against an African-American ..." Justice Stephen Breyer posited. "Why not a man against a man?"

The court seemed to tip its hand toward oil worker Jody Oncale's appeal that he'd not even been allowed to bring his complaint to trial. Chief Justice William Rehnquist said he did not "see how we could possibly sustain the ruling" that same-sex harassment could never be considered.

In cases coming up the court must examine who else bears responsibility when harassment occurs. In Faragher v. Boca Raton, it's a question of whether the city as employer is responsible for a "hostile environment" created by a supervisor. Beth Ann Faragher claims being a Boca Raton lifeguard was no beach party with two touchy feely supervisors.

In Doe v. Lago Vista, the question is whether the school district is accountable for a teacher's extracurricular activities with a junior high school student.

The two cases yet to be heard address different provisions of the law. The lifeguard seeks protection under Title VII of the Civil Rights Act. The student under Title IX of the 1972 Education Amendments.

With the December calendar now closed, the justices have heard arguments in 42 of the roughly 90 cases they will review this session. Around the court there are sighs of relief that this session will not be as hectic as last year's blockbuster. But no Supreme Court judgment is insignificant.

Half a dozen opinions have been handed down so far for cases heard this session. The justices decided that it is not necessarily "price fixing" if a manufacturer or supplier sets a maximum price at which goods may be sold. (It is price fixing if one tries to set a minimum price.)

The justices ruled in a bank loan case that it is not "double jeopardy" for a defendant to be tried on both civil and criminal charges. (Remember O.J. Simpson was.)

The justices found it was double jeopardy, of a sort, to let Louisiana voters to effectively elect their members of Congress in open primaries in October while the rest of the country waits until November. But do the justices really think, as they opined, that voters in other states might be swayed by how Louisianans vote?

The justices may not always let us know where they are headed during oral arguments, but they do speak their piece.

"You have this big windup, but what's the answer to the question?" Justice Anthony Kennedy said, halting a lawyer wound up more in the emotion than the legal argument of a case of a teenager killed during a high speed police chase.

"The moral of this is, don't lie," Chief Justice Rehnquist admonished in a case posing the question of whether a little lie -- a simple "no" -- constitutes a false statement made to investigators.

"I gather they don't know where it is," Justice Antonin Scalia suggested with some amusement at the dilemma of the state of California which claims ownership of a steamship which sank off the northern California coast in 1865.

It carried a shipment of gold, worth perhaps more than $100 million today. The state does not know exactly where the "Brother Jonathan" is. A salvage company does -- five miles offshore and nearly 300 feet down -- and has brought some of that gold to the surface.

Sex, lies and pieces of eight. (To be accurate: U.S. bullion, not Spanish doubloons.) Not landmark decisions for the court to make, yet enough to keep the session interesting as it approaches mid-term.

On opening day--the traditional First Monday in October--affirmative action was clearly the top issue on the court docket. Not now. Civil rights groups, fearing the court would cut back affirmative action, pooled resources to buy off the white New Jersey school teacher who brought suit after being laid off while a black teacher was retained.

The justices had sent a signal earlier in the fall when they declined to hear an appeal against California's Proposition 209 which eliminated affirmative action in state hiring and contracting.

The issue, though, has not gone away. While there is no affirmative action case on the high court's calendar, there are cases in the judicial pipeline. The University of Michigan's admissions policy which has admitted minorities with lower test scores than whites may provide the next test if it reaches the Supreme Court. That is likely at least a year away.