A Broader View of Sexual Harassment
Paula Jones's appeal raises questions about what kind of improper behavior is illegal.
WASHINGTON — Whatever role politics might play in the perpetuation of the Paula Jones case, at the core is this question: Is a "boorish" act like the one allegedly committed by President Clinton sexual harassment?
Ms. Jones and her lawyers won't take "no" for an answer. And many Americans, especially women, might come to a similar conclusion based on their intuitive sense of right and wrong.
Yet sexual-harassment law does not deal with intuition, rather it deals with specific instances of career harm and intolerable working conditions. Still, the Jones case and other suits nationwide are trying to expand boundaries of the current law.
"The Paula Jones case shows the limits of sex-harassment law to solve all the unfair things that happen to women at work," says Carol Sanger, a specialist in gender issues at Columbia University Law School in New York.
Meanwhile, on Wednesday the Supreme Court hears arguments in a case pertinent to Jones.
The case is of a woman, Katherine Ellerth, who suffered no economic or job penalty after rebuffing alleged, repeated harassment by the vice president of her company, but in fact was promoted. One reason federal Judge Susan Webber Wright dismissed the Jones case was that Jones could not show she was harmed in her career as a result of refusing then-Governor Clinton's alleged overture.
As federal law stands now, a victim must either prove that job status was adversely affected as a result of harassment, or that harassment created an abusive or hostile work environment. Harassment must also be "pervasive" or "severe." Pervasive has commonly been interpreted to mean a pattern of harassment.
According to Judge Wright, none of these tests were met in the one-time offense allegedly committed by Mr. Clinton - a ruling that Jones's lawyer interprets as unlawfully allowing "one free flash."
But there are good reasons for today's limits of the law, says Robert Pugsley, a professor at Southwestern University School of Law in Los Angeles. The required proofs reduce the chances of fraudulent accusation, he says, and establish that the harassment is not accidental.
Still, "I think the law should change," says Professor Pugsley. In cases of "gross imbalance of power," it should not be necessary to establish a pattern of harassment.
The power issue appears to be a key one for Jones. "I believe that what Mr. Clinton did to me was wrong and that the law protects women who are subjected to that kind of abuse of power," she said last week, in explaining why she was appealing.
Stephen Schulhofer, an expert in sexual-harassment law at the University of Chicago, argues that sexual relations should be prohibited in certain cases where the "nature of the power differential is severe."
For instance, Professor Schulhofer would put mental-health professionals and their patients in this category, as well as professors and students. He lays out the argument for these prohibitions in his book "Unwanted Sex," to be published by Harvard University Press in September.
But he would not apply these prohibitions to the general workplace, saying it would be wrong to stultify communication in a place where many legitimate relationships develop.
Along with a host of other legal experts, Schulhofer says the chances for the Jones appeal are slim. If he could have his way, though, he would change sexual-harassment law in yet another way - a way that would make the Clinton-Jones incident, if true, sexual harassment.
Under his definition, a completely unexpected, extremely crude act would constitute sexual harassment. The key word here is unexpected. In most workplace romances, there is some indication or communication signaling sexual interest. In the Paula Jones case, there was no personal interaction beforehand.
How to change the law
While the courts will continue to clarify definitions of harassment through judgments, it's unlikely the kinds of changes Schulhofer or Pugsley might want would happen any other way except legislatively. The subject is too explosive for Congress, but some states are getting involved.
For instance, a majority of states forbid sex between prison guards and prisoners, and a few states have laws prohibiting sex between mental-health professionals and patients.
Some legal experts believe sexual-harassment law is the wrong place to seek change. It is more vague than laws applying to assault and battery, and assault and battery laws can also be applied to sexual-harassment cases.
"We have a set of laws that are effective, but we've ignored these laws and instead placed faith in federal sexual-harassment laws that don't deliver," Anita Blair, executive vice president and general counsel of the Independent Women's Forum, a policy organization in Arlington, Va.
But the problem with relying on assault and battery, other legal experts say, is that damages awarded are usually less than those for sexual-harassment cases. And since sexual-harassment law allows for the awarding of fees to attorneys, attorneys often steer their clients in that direction.