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Harris v. Forklift Sys. (92-1168), 510 U.S. 17 (1993).
Opinion
[ O'Connor ]
Concurrence
[ Scalia ]
Syllabus
Concurrence
[ Ginsburg ]
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SUPREME COURT OF THE UNITED STATES


No. 92-1168


TERESA HARRIS, PETITIONER v. FORKLIFT SYSTEMS, INC.

on writ of certiorari to the united states court of appeals for the sixth circuit

[November 9, 1993]

Justice Scalia , concurring.

"Abusive" (or "hostile," which in this context I take to mean the same thing) does not seem to me a very clear standard--and I do not think clarity is at all increased by adding the adverb "objectively" or by appealing to a "reasonable person's" notion of what the vague word means. Today's opinion does list a number of factors that contribute to abusiveness, see ante, at 5, but since it neither says how much of each is necessary (an impossible task) nor identifies any single factor as determinative, it thereby adds little certitude. As a practical matter, today's holding lets virtually unguidedjuries decide whether sex related conduct engaged in (or permitted by) an employer is egregious enough to warrant an award of damages. One might say that what constitutes "negligence" (a traditional jury question) is not much more clear and certain than what constitutes "abusiveness." Perhaps so. But the class of plaintiffs seeking to recover for negligence is limited to those who have suffered harm, whereas under this statute "abusiveness" is to be the test of whether legal harm has been suffered, opening more expansive vistas of litigation.

Be that as it may, I know of no alternative to the course the Court today has taken. One of the factors mentioned in the Court's nonexhaustive list--whether the conduct unreasonably interferes with an employee's work performance--would, if it were made an absolute test, provide greater guidance to juries and employers. But I see no basis for such a limitation in the language of the statute. Accepting Meritor's interpretation of the term "conditions of employment" as the law, the test is not whether work has been impaired, but whether working conditions have been discriminatorily altered. I know of no test more faithful to the inherently vague statutory language than the one the Court today adopts. For these reasons, I join the opinion of the Court.