The myriad rationalizations offered by liberal feminist groups-which habitually canonize women alleging sexual harassment-for the disdain they have shown one Paula Corbin Jones is a bit reminiscent of the classic dog-bite defense: I don't own a dog; my dog was out of town when the woman was bitten; it was his first bite; he bit her in self-defense; she asked for it; and she wasn't really hurt.
The feminist line goes something like this: We don't know this woman; she's in bed with right-wingers; we already knew Bill was a womanizer, it was his first flashing; she probably came onto him; she asked for it; and she wasn't really hurt.
There's more: She waited too long (three years) before going public; we don't believe her the way we believed Anita Hill (who waited 10 years); and her legal claims are so weak that they should be dismissed without ever getting to a jury, even assuming her allegations to be true.
I examined some of these points in "Her Case Against Clinton" (The American Lawyer; November 1996). Here I will examine the last one: the legalistic dodge, which seems increasingly in vogue.
The legalistic dodge misses the point that the most important public issue raised by the Jones case is not whether she could get past a motion for summary judgment, but what her evidence tells us about the character of the most powerful man in the world. And the dodge is, of course, advanced by many feminist groups and leaders who would argue the opposite if the accused were, say, Newt Gingrich.
These include ex-Rep. Patricia Schroeder, who suggested on CBS recently that Jones would have no claim "unless the governor or somebody had communicated to her she would lose her job, or she wouldn't get her promotion, or there's some job-connected consequence of her not having sex with the governor."
But Jones' legal claims are also called weak by some serious and thoughtful feminists, whom I do not accuse of dodging. They include one Sarah Magee, a California writer on employment law, who summarized her argument in an e-mail to me:
As a matter of law, even considering Jones's allegations in the light most favorable to her, it is unlikely that she would survive a defense motion for summary judgment in most courts....Jones simply fails to assert a federal case of sexual harassment One raunchy attempt by the boss to persuade a subordinate to engage in sex-when that request is not accompanied by any threat of retaliation, when no retaliation for rejection of the invitation occurs, and when the plaintiff suffers no discernible negative consequences beyond some embarrassment-simply doesn't pass muster as sufficiently egregious to make a case.
Magee cites some precedents in which conduct that she (not I) considers more outrageous than "one look at a penis" was held insufficient to support a sexual harassment claim.
Jones' case does involve less egregious conduct than many-nobody raped her or fined her for saying no-and some courts might find it too weak to get to a jury. Supeme Court precedent holds that the harassing conduct must be "severe or pervasive" to make out a. "hostile environment" claim trader Title VII of the 1964 Civil Rights Act. Jones does not allege very "pervasive" conduct. And while the courts and the Equal Employment Opportunity Commission have held that one unusually severe incident of harassment can, by itself, support a hostile environment claim, it is debatable whether Jones' claim would clear that hurdle in most courts, at least if exposing himself and requesting oral sex were all that Clinton had allegedly done.
But while Magee knows more about the case law than I do, David Kadue-a Los Angeles lawyer and co-author (with Barbara Lindemann) of a leading treatise, Sexual Harassment in Employment Law- may know more still. He believes that most courts would send a case like this to the jury:
If I were on a jury, I might find that the alleged incident was not severe enough to create liability. But if I were a judge, I would deny a motion to dismiss and a motion for summary judgment, because reasonable people might find sufficient severity if they believe that a high-level official has requested the presence of a low-level employee in a private place and then tried to kiss her, touched her thigh, and exposed himself to her while suggesting fellatio [as alleged here]. A jury could award emotional distress damages even if the jurors did not believe that Jones suffered any economic loss.
A number of cases support liability. For example, in Campbell v. Kansas State University, 780 F. Supp. 755 (D. Kan. 1991), the court held that a "severe" hostile environment was established by "a supervisor's act of slapping a female employee on her buttocks and his subsequent verbal threat" to do it again. Likewise, in Taylor v. National Group of Companies, 872 F. Supp. 462 (D. Ohio 1994), the court held that an "incident in which plaintiff alleges she was struck on the buttocks by a board wielded by the president of the company is an example of extremely severe sexual harassment," and that "[t]he fact that the president, rather than a fellow employee, struck the plaintiff increases the degree of severity."
The Taylor court said that this made out a prima facie case, at least when combined with several other episodes involving "lesser forms of sexual harassment," such as the president's leaning over her and saying she smelled good, whispering (something innocuous) in her ear, and "put[ting] his arm around the plaintiff... in the presence of several other employees as he announced a Christmas party."
Then there's the EEOC's 1990 "Policy Guidance on Current Issues of Sexual Harassment." Under the "isolated instances" heading, it reads: "If an employee's supervisor sexually touches that employee, the Commission normally would find a violation...When the victim is the target of both verbal and non-intimate physical contact, the hostility of the environment is exacerbated and a violation is more likely to be found."
To be sure, Jones missed the 180-day statute of limitations for suing under the most directly relevant statute, Title VII of the 1964 Civil Rights Act-the basis for the cases cited above, as well as the EEOC's policy guidance. Some courts might be more likely to dismiss her federal claims for that reason. But most courts have applied the same standards in assessing sexual harassment claims under 42 U.S.C. §1983, which Jones does invoke. It creates a remedy in damages for intentional 14th Amendment violations (including sex discrimination) committed "under color of" state law.
Here's what Jones alleges Clinton did: He sent his state trooper-bodyguard (and now co-defendant), Danny Lee Ferguson, to interrupt Jones on the job-while the low-level state clerical worker was at a registration desk at a Little Rock hotel, during a state-sponsored conference at which Clinton was speaking-and escort her to an upstairs suite to meet with the governor.
Jones found Clinton alone. She claims that he began by reminding her that he was a "good friend" of her Clinton-appointed boss; proceeded through three unwelcome sexual advances culminating in the pants-down petition for oral sex; and ended by warning, "You ate smart. Let's keep this between ourselves."
This alleged conduct-including an act traditionally viewed as criminal-seems a lot more "severe" than a slap on the buttocks m & fondle of the knee. I am aware of no case in which similar conduct has been deemed too trivial to go to a jury.
Not are Jones' allegations limited to this one incident. Jones says that on a subsequent occasion, Clinton spotted her in the rotunda of the Arkansas State Capitol, "draped his arm over [her], pulled her close and tightly to his body, and said [to another bodyguard]: 'Don't we make a beautiful couple-beauty and the beast?' " (The former bodyguard has confirmed this account.)
She also says that on other occasions, at Clinton's instigation, trooper Ferguson made intimidating comments to her about Clinton's sexual interest in her. (Ferguson denies this.) And she claims both that for many months, she was in fear of retaliation at her state agency for having rebuffed her boss's boss, and (less plausibly) that such retaliation occurred.
Does all this add up to a claim that should get to a jury? My answer (barring any big surprises in discovery) would probably be yes, given that it involved an alleged abuse of state power by a powerful public official. I might feel differently if the alleged harasser were merely the accuser's immediate supervisor (rather than the boss of all bosses), and if the defendant were the corporate or governmental employer (rather than the boss himself), and if there were no showing that the employer had been lax in seeking to parent such conduct.
But of one thing I have little doubt: Were similar allegations pending against a conservative Republican, or a corporation president, just about every liberal feminist organization in the nation would be clamoring for swift and sure justice, if not the public emasculation of the offending male.