By Amy Goldstein and Joan Biskupic
None of these women got a chance to present their case fully because judges threw out their claims. Even if those incidents occurred, the judges ruled, they weren't enough to constitute sexual harassment.
Such cases mean that a federal judge's decision in Little Rock this week to dismiss Paula Jones's lawsuit against President Clinton is part of a trend in which many courts are concluding that a legal finding of sexual harassment requires more than one or two sexually tinged episodes -- no matter how unwanted they may be.
According to lawyers who specialize in sexual harassment law, such rulings also suggest that the opinion issued by U.S. District Judge Susan Webber Wright may withstand an almost-certain appeal by Jones's attorneys to the 8th U.S. Circuit Court of Appeals, a court that is known as relatively conservative.
The former low-level Arkansas state employee whose lawsuit transformed a presidency "has, in my estimation, a minimal chance on appeal," said Debra S. Katz, a Washington civil rights attorney with expertise in sexual harassment issues. "Judge Wright made no new law here. She followed the existing law in the 8th Circuit and the Supreme Court."
Margaret A. Harris, a Houston lawyer who specializes in job discrimination cases, said, "I think it takes pretty close to rape to say one instance constitutes sexual harassment. I'm not necessarily saying it is good law, but it's how the law has developed."
In her suit filed four years ago, Jones alleged that in 1991, when Clinton was governor of Arkansas, he used a state trooper to lure her to a hotel suite, exposed his erect penis and asked her to "kiss it." Wright concluded that, even if the encounter occurred as Jones alleged, it would have been "boorish and offensive" behavior -- but not sexual assault or harassment.
The judge found that Jones did not prove she had suffered either of two types of situations that courts have generally recognized as sexual harassment, both of which Jones had alleged.
Wright quickly dismissed the idea that Jones was a victim of quid pro quo harassment, in which employees argue they were punished in their work for failing to comply with sexual advances by a supervisor. Nor, the judge said, did Jones prove the existence of a "hostile workplace environment," a legal standard that is somewhat more vague. The Supreme Court has said that, to prevail, an employee must show that conduct was "sufficiently pervasive or severe to alter the conditions of employment and create an abusive working environment." But it has not defined specifically how much or what form of sexual behavior is "pervasive or severe" enough for a plaintiff to win in court.
Typically, successful cases of this kind have involved repeated instances of offensive touching, dirty jokes or comments, and other abuse -- rather than a one-time episode such as that alleged by Jones.
"Unless it is something really bad -- like attempted rape, successful rape -- a single incident is not enough," said Eugene Volokh, acting professor of law at the University of California at Los Angeles. In dismissing Jones's suit, Wright concluded that Jones had not proven she was a victim of such an outright sexual assault.
It is not unheard of for an employee to establish harassment on the basis of a single incident. And because the legal standard is vague, both trial and appellate courts have drawn different conclusions about precisely what constitutes "severe." In a 1991 Kansas case, for example, a judge ruled in favor of a secretary at Kansas State University whose boss slapped her on the buttocks. Concluding that the behavior was abusive and demeaning, the judge said, "Without provocation or reason, the plaintiff -- a dignified adult woman -- was spanked on her rear end!"
But in cases in which the alleged sexual harassment occurred in just one or two instances, decisions in favor of a plaintiff are relatively rare.
Some legal experts questioned yesterday whether Paula Jones's claim nevertheless had merit.
Martha Davis, legal director of the NOW Legal Defense and Education Fund, criticized Wright's decision, saying she should have given greater weight to "the power differential" between Clinton and Jones in considering the circumstances under which the hotel incident allegedly took place. "What the judge seemed to be doing is imposing a litmus test for a single incident -- that it has to rise to rape or sexual assault," Davis said.
Such court decisions leave "plaintiffs . . . in legal never-never land," added Katz. "Something horrible has happened in the workplace, but it doesn't rise to the level" of the courts' standard for sexual harassment.
© Copyright 1998 The Washington Post Company