Threats Real, but Less Menacing
By Peter Baker
Jones's decision to appeal means that the sexual harassment claim that has bedeviled Clinton for four years will continue to loom over him, probably for the rest of 1998 and possibly through the rest of his presidency. The longer it drags on, advisers fear, the more it could taint his historical legacy.
Yet by most assessments, Jones's lawyers face an uphill battle in seeking to overturn U.S. District Judge Susan Webber Wright, who threw out the suit on April 1 because it raised "no genuine issues for trial." And as a political matter, strategists in both parties believe Clinton has already weathered the worst damage the Jones case could inflict on him and is unlikely to see his sky-high approval ratings hurt by the appeal.
"Now she's a nuisance at best," said Dane Strother, a Democratic political consultant. "She's thrown everything out publicly. . . . They've embarrassed the president a bit. But that's done. There's nothing else she can do. She's spent."
Although "my heart wishes she would skewer the guy so badly," Republican pollster Tony Fabrizio agreed. "There's a level at which all of this just becomes so much white noise," he said. "Politically, I don't think it's going to be have any impact at all, other than that it gives the Clintonites the opportunity to stand up and say, 'They won't give up, the right-wing conspiracy won't give up.' "
From now on, the Jones case will be more of a low-grade fever for the president than a raging tropical disease. There will be no more of the pretrial evidence-gathering of the last few months, during which lawyers for Jones scoured the president's private life, forced him to submit to an unprecedented interrogation under oath, publicly filed testimony from three other women alleging sexual encounters with him and ultimately prompted the independent counsel investigation into Clinton's dealings with former aide Monica S. Lewinsky.
Instead, it will be a more antiseptic process, with lawyers writing briefs and making oral arguments. The attorneys can use only material already entered into the record and cannot introduce new evidence.
The first step will be the 8th U.S. Circuit Court of Appeals, which will assign a three-judge panel to hear the case and could take a year to rule. The loser could then ask the full appeals court to consider the matter or go straight to the Supreme Court.
When it comes to Clinton, Judge Wright does not have a perfect track record with the 8th Circuit, which has reversed her on rulings in both the Whitewater investigation and the Jones case. The appeals court overturned Wright's initial decision to let Clinton wait to stand trial in the Jones suit until after leaving office.
But several legal scholars said Wright's 39-page decision granting Clinton summary judgment this month stuck closely to the facts of the case and was consistent with the state of sexual harassment law in the 8th Circuit. Wright did not address whether then-Gov. Clinton dropped his pants and asked for oral sex in 1991, as Jones claimed, but concluded that even if true, such "boorish and offensive" conduct did not amount to sexual harassment because Jones, a low-level state clerk at the time, could not show that she was harmed in her career for saying no.
If a plaintiff cannot prove she suffered "tangible job detriment" through quid pro quo sexual harassment, courts have ruled that she must prove that a defendant created a "hostile workplace environment" through pervasive or severe behavior. Wright decided a single act of exposure and solicitation was not severe enough for Jones to deserve a trial.
"I'd say her chances are almost as low as 20 percent," said Jim Nowogrocki, who represents plaintiffs in sexual harassment cases in St. Louis, home of the appeals court. "If the law hasn't changed, I think it would be really tough for her to convince the 8th Circuit that there is enough to create a hostile workplace. I don't see them lowering the standard here."
Still, this is a hazily defined area of law. "The problem with sexual harassment cases is that the standard isn't all that clear," said Pauline T. Kim, a law professor at Washington University in St. Louis who specializes in employment law. "The Supreme Court has only dealt with a small handful of sexual harassment cases."
One such case now at the high court, though, may provide ammunition for the Jones camp. The justices will hear oral arguments Wednesday in Burlington Industries v. Ellerth, in which they will consider whether a worker can claim quid pro quo sexual harassment even if a supervisor's threat did not result in punishment in the workplace. In that case, an executive allegedly told a woman offensive jokes, touched her inappropriately and directed sexual innuendo at her, but not only did she not lose her job for rebuffing him, she was promoted.
Wright anticipated that line of argument in her ruling, writing that even if a threat of punishment alone were enough to constitute harassment, Jones had failed to prove that Clinton issued such a warning. According to Jones, Clinton told her he knew her boss, which she interpreted as a threat, but Wright deemed that too ambiguous.
Jones may get some help from an unexpected quarter. Women's groups that have shied away from her battle for years are studying the Wright ruling to decide whether it sets the bar for establishing sexual harassment too high. Officials at the National Organization for Women plan to evaluate the situation this weekend and the National Women's Law Center said it, too, will consider filing a friend-of-the-court brief.
"It is an issue that we're concerned about in general," said the center's co-president, Nancy Duff Campbell. "What is the severity that's needed [to prove harassment]?"
© Copyright 1998 The Washington Post Company