It's been eight years since Clarence Thomas was elevated to the United States Supreme Court; time enough for the exciting new issue of sexual harassment to start to be decided by case law. At last we can find out the practical answer to the question: When exactly does sex in the workplace go beyond being an assault with a friendly weapon?

As any lawyer worth his BMW can tell you, sexual harassment comes in two flavors. The plain vanilla variety is called "quid pro quo," and it's simply when a boss or supervisor says, "Spread 'em if you don't want to be on the next bus outta here." If you can prove the suggestion was made, bingo! You're on the next bus outta here to an island in the sun.

It's the caramel-nugget-butterscotch flavor "hostile environment" where cases get sticky. The plaintiff has to prove that the alleged conduct "... has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment" [29 C.F.R. § 1604.11(a)(1), (3)]. Applying these 22 words is how labor-law attorneys make their mortgage payments; and how judges show that what is harmless sport to one is hard cash to another.

Crist v. Focus Homes

Aja Crist was on staff of a Minnesota home that cared for mentally retarded and autistic individuals. One of the four residents at the home was 16-year-old J.L., who functioned at the level of a two-to-five-year-old child. J.L. stood over six feet tall, weighed more than 200 pounds, and had the testosterone level of a bull moose at rutting season. Responding to his raging hormones, J.L. "...pushed [Aja] against a door, forced her right hand above her head, pulled open her jeans and her blouse, grabbed her left breast, and pushed his weight and erect penis against her stomach." When Aja complained to her employer, he suggested that she participate in an "observation exercise" in which she would permit J.L. to reenact his performance so that supervisors could view the "problematic" conduct. Clearly a case of sexual harassment in a hostile work environment, right?

The Verdict: Not sexual harassment. The trial judge ruled that, given his disabilities, J.L.'s conduct -- and that of Focus Homes, was in the clear... Fortunately for the sanity of mental health workers everywhere, an appellate court disagreed, thereby establishing the legal precedent that you don't have to put up with fucking idiots.

Ms. Weiss was anything but a doctoral candidate. In fact, she couldn't even take correct inventory counts at the Chicago Coca-Cola bottling plant where she worked. But she was young and blond, and her supervisor Jerry thought he was in with a chance -- even though she told him she didn't date co-workers. He repeatedly asked Weiss out on dates, consistently referred to her as a "dumb blond," put his hands on her shoulders several times, placed "I love you" signs in her work area, and attempted to kiss her in a bar and while at work.

The Verdict: Even if all these allegations were true, the appellate court said, Weiss' claim did not meet the standard of actionable sexual harassment. (990 F.2d 333) No surprise -- this same group of stalwart justices upheld a lower court's decision to throw the case of automobile mechanic Maxine Scott out of court, even though she had been subjected to propositions, lewd comments and suggestions, as well as slaps on the ass by her testosterone-infused male co-workers. These acts, the court of appeal said, "were relatively isolated." (798 F.2d 210) Maxine the Mechanic found out -- as President Clinton has since -- that an occasional grope or feel is permissible, so long as they don't occur every day.

Pity poor Siobhan Koelsch, an exotic beauty from a different culture who went to work for Beltone Electronics Corp. in Chicago. She, too, had no idea that the 7th U.S. Circuit Court of Appeals would cast her sexual harassment claims to the city's winds, even when she alleged that the company's president removed his shoe and rubbed his foot against her leg at an executive conference and, on a plant tour, grabbed her while in a sound-proof room and planted a big, wet one on her lips. But that was not all -- this salacious Satan was alleged to carry a picture showing him as a baby; except that the photograph had been doctored to show an adult penis "strategically superimposed in an anatomically correct manner," and fellow employees at Beltone had asked her to contribute some pubic hairs for a collection taken up as a birthday gift for the horny executive.

The Verdict: Too bad, the 7th Circuit said, it was all a bit too vague to support her claim... It's clear they never saw the picture.

If you've ever wondered why some Texans grow up a little strange, the answer just might be in how their schools are administered... and what the administrators can get away with. Rose and Erma, two teachers in an El Paso elementary school, began receiving similar anonymous mail with sexual overtones: "You probably could use a man in your life to calm some of that frustration down," "A dude a day keeps the crazes [sic] away!" and, "What you Need Is Few [sic] good Men." Other mailings included a greeting card containing a picture of the naked buttocks of four women with a caption stating that "the winner is you (for being the perfect asshole)." The culprit was finally given away by the typical misspellings and the use of a favorite phrase -- it was the principal, Kirk Irwin.

The Verdict: No problem! The letters were sent occasionally; the conduct "was less severe than, for example, public circulation or display of similar targeted messages;" the statements in the letters were not threatening; and, since the letters were received at home and not at school, the federal appeals court for the 5th Circuit concluded that they would not have affected Rose's and Erma's work performance.

The "atmosphere" at a Fairfax County garage was "heavily focused on sex," according to the 4th Circuit. The "lube boys" liked to keep the infamous Snap-On tool calendars of scantily clad women placed in and around their tool boxes, but it was Mark McWilliams' tool box that the guys were after. Using more ingenuity than they had a collective right to posses, seven of these Einsteins of the grease rack developed a unique way of making their colleague, who suffered from a learning disability, feel as if he were part of the group.

These were such playful guys that one supervisor even placed a condom (the court did not say if it had been used) in McWilliams' food, and the fun just never stopped. On at least three occasions, the guys tied McWilliams' hands together, blindfolded him, and forced him to his knees. On one of these occasions, a coworker placed his finger in McWilliams' mouth to simulate an act of oral sex. On another occasion, a co-worker placed a broomstick to McWilliams' anus, while a third exposed his genitals to the helpless Mark.

The Verdict: Despicable conduct, deserving of judicial action? Not five years ago in Virginia. In upholding a lower court's dismissal of McWilliams' case against his employer, the county, a majority of the court said that there could not be harassment based on sex when the perpetrators and victim of the harassment were of the same sex... unless, of course, one of the parties was gay. Unfortunately for McWilliams, his tormentors were naturally as straight as a die.

That perversion of logic was pretty much the way the law stood until Joseph Oncale, a heterosexual, had his same-sex sexual harassment case taken up by the U.S. Supreme Court. We'll never know, exactly, to what conduct Joseph was subjected. Justice Scalia who wrote the opinion decided "in the interest of both brevity and dignity" to forgo a detailed description. Suffice it to say that Joe was a roustabout on an eight-man crew on an offshore drilling platform who had the misfortune to work with members of the same gene pool as McWilliams' antagonizers. One of them placed his penis on Joe's neck on one occasion, and on his arm during another encounter. Finally, one co-worker restrained Oncale while a second pushed a bar of soap into Joe's ass while the men were showering.

The Verdict: The Court held that there was "no justification ... for a categorical rule excluding same-sex harassment claims" from legal protection. Although the decision was unanimous, Justice Thomas, the court's resident expert on sexual harassment, added a one-sentence concurring opinion which said, "I concur because the Court stresses that in every sexual harassment case, the plaintiff must plead and ultimately prove [the] statutory requirement that there be discrimination 'because of ... sex.'"

Undoubtedly the distinguished jurist was thinking of the famous trilogy: Long Dong Silver, a curly pubic hair, and a can of Coca-Cola.

Sherman Fridman is a freelance writer and novelist who views contemporary issues from a unique perspective.