Paula Jones Suit Is Test of Truth, Consequences

WASHINGTON — As a legal matter, the case of Paula Corbin Jones vs. William Jefferson Clinton now boils down to two simple questions:

Can a single, outrageous incident of sexual harassment by a woman’s supervisor violate the law? And is the victim of such an extremely crude proposition entitled to $700,000 in damages to pay for her injuries, as Jones has requested?

Most legal experts think the answer to the first question is probably yes. If so, her claim should go to trial in Little Rock, Ark.

However, the answer to the second, they say, is almost surely no. Even if jurors are convinced Jones has proved her claim, they are not likely to award her hundreds of thousands of dollars in damages.

Last month, the president’s lawyer, Robert S. Bennett, urged the judge to throw out the case on the grounds that, even if everything Jones said is true, the incident did not violate the law.

To win a claim of illegal sexual harassment, Bennett argued, the alleged victim must show either that she suffered a “tangible job detriment” for refusing her supervisor’s advances, or that she endured “severe or pervasive” abuse over time.

Neither is true in Jones’ case, Bennett said. Jones kept her job and even received raises, he pointed out. And she said the alleged “isolated advance” by the governor was not repeated.

Since the 1980s, judges and legal scholars have referred to two distinct kinds of sexual harassment claims. The so-called quid pro quo claims depend on evidence that sex was linked to a job benefit or job loss. The other kind of claim focuses on whether repeated harassment created a “hostile environment” for the employee.

But contrary to Bennett’s flat assertion, in recent cases judges have not always required a victim to prove she suffered either a “job detriment” or a pattern of severe abuse.

Last year, the U.S. Court of Appeals in Chicago reinstated, on a 6-5 vote, a sexual harassment claim by a woman who said her supervisor commented on her legs and breasts and put his hand on her knee. If “you wear short shorts, Kim, it would make your job a whole heck of lot easier,” a sales manager for Burlington Industries allegedly told Kimberly Ellerth.

She quit after a year and sued the company. A federal judge in Chicago initially threw out her claim because, as Bennett asserted in the Jones case, Ellerth had no evidence she suffered a job detriment or a pattern of severe abuse.

But the case split the appeals court, which issued eight opinions covering 203 pages. The bottom line: Ellerth suffered illegal discrimination because of her sex.

However, the company, joined by the U.S. Chamber of Commerce, appealed to the Supreme Court, saying this area of law has become “chaotic.” The company’s lawyers say a female employee who had “neither submitted to the sexual advances of the alleged harasser nor suffered any tangible job effects” has not suffered discrimination.

Next month, the justices will hear arguments in the case of Burlington vs. Ellerth, 97-569, and will issue a ruling by July.

In the thick motion filed Friday, lawyers for Jones cite the Burlington case and several others in which courts have upheld sexual harassment claims even when female victims did not show a clear link between sex and their job. For example, Judge Stephen Reinhardt of Los Angeles, writing for the U.S. 9th Circuit Court of Appeals, upheld a sexual harassment claim filed by a mail sorter for the U.S. Postal Service whose supervisor urged her to perform oral sex. Frightened about losing her job, she complied.

“The clear trend in the Title VII case law is against requiring proof of ‘tangible job detriment’ in an action for quid pro quo sexual harassment under Title VII,” Jones’ lawyer Donovan Campbell wrote in his motion to U.S. District Judge Susan Webber Wright. A supervisor’s sexual advances “put the victim on the horns of a terrible dilemma. [She] must spontaneously and under coercion choose between submitting to unwanted sexual contacts, or resist and live in fear of reprisals that might jeopardize her career.”

While Jones’ lawyers argued her case should go to trial even if she did not suffer “tangible job detriment,” they also said in Friday’s filing that she did suffer on the job as a result of the incident and said she continues to suffer mental and emotional distress.

In her lawsuit, Jones describes how she was frightened and humiliated by Clinton’s alleged conduct in a hotel bedroom and how she feared retaliation afterward.

Jones was a low-level clerk when a state trooper allegedly escorted her into the governor’s suite on May 8, 1991. Clinton mentioned that Dave Harrington, her supervisor at the Arkansas Industrial Development Commission, was his “good friend,” according to Jones.

Then, she says, Clinton dropped his trousers and asked for oral sex. When she recoiled, he retreated, she said, but commented: “You are smart. Let’s keep this between ourselves.” On the way out of the room, Jones says, Clinton added: “If you get in trouble for leaving work, have Dave call me immediately and I’ll take care of it.”

These comments show a clear link between sex and work, her lawyer asserts. Campbell says Clinton used his power in a bid to obtain sex from an employee and reminded her of his authority over her job.

After rebuffing Clinton, Jones claims she was treated “very rudely” by her supervisors and was transferred to a job with less responsibility while on maternity leave.

Furthermore, Jones asserted she was discouraged from seeking promotions, afraid to file job grievances and felt she was working in a “hostile environment.” In February 1993, she resigned, and that May, she and her husband and their young son moved to California.

Her lawyers argue that a onetime “severe” incident can create the “hostile environment” type of sexual harassment.

Women’s rights advocates agree. “If it is extreme, a onetime incident can amount to a sexually hostile environment,” said Martha F. Davis of the NOW Legal Defense Fund in New York. Several courts have upheld such claims from female workers whose supervisors allegedly tried to rape or otherwise assault them on the job.

Last month, Jones was examined by Patrick J. Carnes, clinical director of a sexual disorders center in Arizona. In a signed declaration released in Friday’s filing, Carnes said her alleged encounter with Clinton has caused Jones “to suffer severe emotional distress.”

“The symptoms she described fit standard criteria for post-traumatic stress disorder,” Carnes said. “They are consistent with profiles of victims of sexual harassment.”

He described one of her conditions as “sexual aversion,” similar to what someone might suffer after being victimized by rape or childhood sexual abuse.

“It is clear,” he added, that the trauma for Jones is exacerbated by the “authority role of Bill Clinton. . . .” He called the long-term implications for Jones “quite significant.”

To further complicate matters legally, the Jones suit is not a simple sexual harassment claim.

Instead, she sued under a post-Civil War law that allows damage claims against any official acting “under color of law” who violates a person’s rights under federal law or the U.S. Constitution.

In her suit, Jones alleges Clinton not only sexually harassed her but violated her rights to the “equal protection of the laws.” In their motion Friday, Jones’ lawyers say she was treated differently because of her gender and therefore suffered a type of unconstitutional sex discrimination.

Now, Wright must rule on whether Jones’ claims can go to trial. At this stage, Wright is supposed to assume Jones’ allegations are true. If she believes Jones’ claims might show a violation of the law, the judge should reject Bennett’s motion and allow the case to go to trial.

Legal experts assume she is likely to do just that.

USC law professor Erwin Chemerinsky says Jones may not have suffered a demotion or retaliation, “but that goes to the question of damages, not to whether there is an actionable claim.”

But others say they would not be surprised if the judge rules for Clinton and dismisses the case. In that event, Jones’ lawyers would appeal and seek to have the case revived in the U.S. 8th Circuit Court of Appeals.

Even so, a victory for Clinton now might prove a bit hollow. Early on, the president’s lawyers hoped to squelch the lawsuit, fearing it could lead to an avalanche of embarrassing publicity about women, sex and state troopers.

Their fears have been borne out, and for Clinton, as well as Jones, the damage has already been done.