April 3, 1998 Contact Maureen Shine (541) 346-3145 by Caroline Forell Paula Jones is history and, according to polls, most Americans think this is a good thing. So what does this mean for the law of sexual harassment? The law treats employer demands for sexual favors and creation of sexually hostile work environments as sex discrimination. I expect most Americans believe such conduct should be prohibited. I also suspect that the public's views about sexual harassment law had little to do with their reaction to the demise of the Paula Jones case. Most Americans wanted this case to disappear because it was really just politics, because they were tired of hearing about the president's dirty laundry, because they felt that the Supreme Court was wrong in allowing this case to proceed while the president was still in office, or because they didn't believe Jones. While I believe Clinton sexually propositioned Paula Jones and therefore abused his power, I agree with Judge Webber that Jones didn't sufficiently demonstrate tangible harm to her employment or that Clinton's conduct created a hostile work environment. In deciding to dismiss Jones' case, Judge Webber considered all the circumstances in the light most favorable to Jones. Webber then concluded that, even assuming that Jones' accurately portrayed what happened between her and Clinton, Jones' allegations simply didn't satisfy the legal requirements for sexual harassment. The judge therefore accepted Jones' claim that, when invited, she innocently went to then Gov. Clinton's hotel room. Once there, without warning or any encouragement on her part, Clinton commented on how attractive he found her, touched intimate parts of her body and, when she rebuffed his advances, exposed himself and asked her to "kiss it." The judge also accepted as true that when Jones clearly indicated that she wasn't interested, Clinton let her leave after looking "sternly at her" and saying: "You are smart. Let's keep this between ourselves." With this scenario in mind, the judge reviewed both Jones' "quid pro quo" and hostile environment claims. Judge Webber noted that a "quid pro quo" claim required Jones to show "that her refusal to submit to unwelcome sexual advances or requests for sexual favors resulted in a tangible job detriment." The judge carefully reviewed Jones' claims of work-related repercussions and found them to be groundless. Webber noted that Clinton neither penalized nor threatened to penalize Jones for her rejection of his alleged advances. The lack of tangible harm to Jones' "compensation, terms, conditions, or privileges of employment" justifies Webber's dismissal of this claim. Jones also alleged hostile work environment sexual harassment. Judge Webber noted that this claim is made out when "sexual conduct has the purpose or effect of unreasonably interfering with an individual's work performance." The harassment must be "sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment." Judge Webber concluded that Jones "has not shown under the totality of the circumstances that the alleged incident in the hotel and her additional encounters ... were so severe or pervasive that it created an abusive working environment." Did Judge Webber's decision change the law of sexual harassment? Prior to Webber's April Fool's Day bombshell, media were portraying sexual harassment law as out-of-control. Some folks even suggested that politely asking a coworker for a date could be sexual harassment. Now that Paula Jones' claim has been rejected, some claim that the tables have been turned. Bosses can manhandle or expose themselves to women workers one by one as long as they stop when rebuffed. Of course neither extreme is accurate. But drawing bright lines between what is and isn't sexual harassment remains difficult. The Supreme Court has unanimously said that what constitutes legally actionable sexual harassment will depend on the totality of the circumstances. As Justice Scalia noted, it requires "careful consideration of the social context in which the particular behavior occurs and is experienced by its target." So, although asking someone for a date is usually fine, if that someone is your secretary and you retaliate when she refuses, that's sexual harassment. It remains to be seen whether "merely" threatening to retaliate without actually carrying out that threat is sexual harassment. The Supreme Court is presently reviewing a case presenting this question. Certain factors make a sexual harassment claim more viable: failure to stop after a clear message that the conduct is unwelcome; employer awareness of but failure to deal with the harassment; and a supervisory relationship between the perpetrator and his target. The Supreme Court's 1993 Harris v Forklift decision remains the key. In Harris, a company president repeatedly told an employee: "You're a woman, what do you know" and made her the butt of sexual jokes. She complained and when he didn't stop, she quit and sued. The court unanimously held that the claimant did not have to prove tangible psychological injury in order to have a hostile environment sexual harassment claim. Justice Ginsberg succinctly noted that "[i]t suffices to prove that a reasonable person subjected to the discriminatory conduct would find... that the harassment so altered working conditions as to make it more difficult to do the job." Sexual harassment was first recognized as a form of sex discrimination only 20 years ago. Today every American worker knows about its potential impact. However, there are indications that the public thinks sexual harassment law itself is a problem. Some polls indicate backlash from the media frenzy over Jones, Lewinsky, Starr, et al. When a Time/CNN survey in June 1997 asked whether sexual harassment of women is a big problem, about 40 percent of those polled said yes; in February 1998, after Lewinsky burst onto the scene, only 26 percent said yes. Perhaps this change in opinion isn't backlash. Maybe sexual harassment law has actually reduced the problem's magnitude. Twenty years ago a woman had no meaningful remedy if her supervisor made her job more difficult by sexually accosting or harassing her. Sexual harassment law shifted the balance of power in the workplace. Today savvy employers have policies prohibiting sexual harassment and procedures for stopping it. And, because it exposes them to liability, many employers don't tolerate sexist or unwelcome sexual conduct in their workplaces. The Paula Jones decision didn't change that. Caroline Forell is a professor of law at the University of Oregon School of Law. -30- #E-4081/Special to Oregonian