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THE LADY WAS NOT AMUSED

Simon Chalpin was trying to be funny. Jill Lansdale was not amused. A jury awarded her $1.1 million for his bad manners, and now the case is in the Supreme Court on a petition for review. The matter merits reflection. Let us pray.

Chalpin is identified by his counsel as "a short, elderly, gregarious New Yorker who typically uses his old-school brand of humor to motivate or inspire others." Some 30 years ago he founded Hi-Health Supermart Corp., an Arizona-based company that owns 50 retail stores in the Phoenix area. Most of its employees, including many senior managers, are women.

In October 1996 Chalpin interviewed Jill Lansdale and hired her as a buyer. Her starting salary was $45,000. Three months later he raised her pay to $80,000 and made her general merchandise manager. The promotion didn't work out. After unfavorable evaluations she left the company in June 1997. Then she sued Hi-Health for damages based upon sexual harassment under Title VII of the Civil Rights Act of 1964.

The circumstances of her termination were not at issue. The whole case revolved around the alleged harassment. Lansdale cited 14 instances over the nine-month period. She charged that Chalpin told her, for example, that "men are smarter than women," and "women are slower than men." He urged her "to think with the logic of a man," and "to negotiate like I was a man."

Some of his comments were mildly sexy: "You're slimming up quite nicely," and "Speaking of butts, I've noticed yours is getting smaller." Referring to a buxom woman pictured in an advertisement, "I would like to sleep on those tonight." Referring to another photograph, "Boy, I can think of one thing I'd like to talk to her about." When Lansdale mentioned that her husband was angry because she had worked overtime during the Easter weekend, Chalpin said, "So you're telling me you're available now?"

At trial, two witnesses said they had heard Chalpin twice refer to women as "broads." A third witness said Chalpin told her that Lansdale got her job because of her face and her "boobs."

On cross-examination the witnesses said they knew he was joking. Lansdale herself said Chalpin's remarks did not interfere with her work.

The leading Supreme Court precedent in the field of sexual harassment is Harris v. Forklift Systems (1993), supplemented by Farragher v. Boca Raton (1998). The Harris case involved a boss who outright propositioned a woman employee: "Let's go to the Holiday Inn and negotiate." He would jiggle some coins in his pants pocket and ask women to retrieve them, or he would throw objects to the floor and tell his female employees to pick them up. In Farragher, a young woman lifeguard complained of intimate touching by her supervisor. He made crude threats: "Date me or clean toilets for a year."

In these and other cases the Supreme Court has made it clear that "simple teasing" or "offhand comments" are not enough to establish actionable harassment. Women must tolerate "the ordinary tribulations of the workplace, such as the sporadic use of abusive language and gender-related jokes." Title VII was not intended to establish a general code of civility. Liability is triggered only when an employer's conduct creates a "hostile or abusive" work environment.

Was the environment at Hi-Health seriously "hostile or abusive"? The jury brought in its verdict of $100,000 in compensatory damages and $1 million in punitive damages. In a post-trial order, the U.S. District Court reduced the total to $200,000. The court remarked that the evidence was "on the borderline of culpable conduct under Title VII," but it declined a motion to rule for the company notwithstanding the verdict.

My own sympathies lie with Sy Chalpin, the sole owner of Hi-Health Supermart. There was no evidence that he engaged in physical touching. He never threatened Lansdale with demotion or dismissal if she failed to submit to his amorous advances. There were no amorous advances, no humiliation, no vulgar offers of a quid for a quo. If she was a damsel in distress, this was distress at a pretty low level.

I doubt that the high court will agree to hear Hi-Health's appeal. The case raises no towering questions of civil rights and presents no conflicts among the lower circuit courts. It's a tough call for Chalpin, who is stuck with one of the great truths of human relationships: Some people, like some potatoes, have very thin skins.

(Letters to Mr. Kilpatrick should be sent in care of this newspaper, or by e-mail to kilpatjj@aol.com.)