A Flicker of Hope for Paula Jones
Washington Post Staff Writer
Saturday, June 27, 1998; Page A11
By redefining sexual harassment law in a pair of unrelated cases yesterday, the Supreme Court gave a new legal avenue to Paula Jones to try to reinstate her lawsuit against President Clinton, but the standards set by the justices may still prove too difficult for her to meet.
While not addressing Jones directly, the high court determined that a plaintiff does not have to prove a supervisor carried out a threat of retaliation after having a sexual advance rebuffed. Jones's lawyers, who had anxiously awaited the decision, immediately signaled that they will fashion their appeal to conform to the court's new benchmark.
But the ruling was mixed at best for Jones, according to some legal scholars, because it did not go as far as her lawyers had hoped. To reverse the dismissal of her case, Jones still would have to demonstrate that the single crude encounter with Clinton she has alleged was severe enough to warrant a trial. And the judge who threw out her lawsuit on April 1 appeared to anticipate yesterday's Supreme Court decision and preemptively dismissed arguments that could arise from it.
"It allows them to reformulate their arguments, but I don't think it really gives them any new arrows in their quiver," said Karen Tokarz, a specialist in employment discrimination law at Washington University in St. Louis.
"It's hard to see how this boosts her chances any," added Marcia D. Greenberger, co-president of the National Women's Law Center here. "It's hard to see it dramatically changing very much about the case, given the number of bases that the district judge covered."
In Burlington v. Ellerth, Justice Anthony M. Kennedy characterized the allegedly harassing behavior of a supervisor as "repeated boorish and offensive remarks and gestures," adopting almost word-for-word U.S. District Judge Susan Webber Wright's description of Clinton's conduct in allegedly dropping his pants and asking Jones for oral sex in May 1991.
Wright said such behavior was not enough to constitute sexual harassment under the law. In Burlington, where a supervisor was accused of commenting on a subordinate's appearance and telling her he "could make your life very hard or very easy," the court said it could be considered harassment.
Yet the supervisor in Burlington made such remarks numerous times and Kennedy pointedly wrote that "we express no opinion as to whether a single unfulfilled threat is sufficient to constitute discrimination in the terms or conditions of employment," as in the Clinton case. Judge Wright wrote in April that a single instance of "boorish and offensive" behavior was not enough to constitute harassment and that she did not see a threat in Clinton's alleged warning to Jones to keep quiet.
In light of the new rulings, Jones's lawyers can ask the 8th U.S. Circuit Court of Appeals immediately to remand their case to Wright or wait and cite them in their appeal brief due July 30. "It gives it new vitality," said one of her lawyers, John W. Whitehead. "I think we have a shot."
In California, Jones reacted exuberantly. "I was really, really thrilled," she said in a telephone interview with CNBC.
But Clinton attorney Robert S. Bennett said the facts in the Burlington case are different from Jones's suit. "Therefore, the decision does not undercut the persuasive opinion of District Judge Wright throwing out Ms. Jones's case," he said.
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