March 16, 1998 in Nation/World

Jones Case Judge Must Solve Legal Maze Differing Views Of Laws At Heart Of Motions In Suit Against Clinton

David G. Savage And Richard A. Serrano Los Angeles Times

As a legal matter, the case of Paula Jones vs. William Jefferson Clinton now boils down to two simple questions.

Can a single, outrageous incident of sexual harassment by a woman’s supervisor violate the law?

And is the victim of such an extremely crude proposition entitled to $700,000 in damages to pay for her injuries, as Jones has requested?

Most legal experts think the answer to the first question is probably yes. If so, her claim should go to trial in Little Rock, Ark.

However, the answer to the second, they say, is almost surely no. Even if jurors are convinced Jones has proved her claim, they are not likely to award her hundreds of thousands of dollars in damages.

Last month, the president’s lawyer, Robert S. Bennett, urged the judge to throw out the case on the grounds that, even if everything Jones said is true, the incident did not violate the law.

To win a claim of illegal sexual harassment, Bennett argued, the alleged victim must show either that she suffered a “tangible job detriment” for refusing her supervisor’s advances, or that she endured “severe or pervasive” abuse over time.

Neither is true in Jones’ case, Bennett said. Jones kept her job and even received raises, he pointed out. And the alleged “isolated advance” by the governor was not repeated.

Since the 1980s, judges and legal scholars have referred to two distinct kinds of sexual harassment claims. The so-called “quid pro quo” claims depend on evidence that sex was linked to a job benefit or job loss. The other kind of claim focuses on whether the repeated harassment created a “hostile environment” for the employee.

But contrary to Bennett’s flat assertion, in recent cases judges have not always required a victim to prove she suffered either a “job detriment” or a pattern of severe abuse.

In the thick motion filed Friday, lawyers for Jones cite several cases in which courts have upheld sexual harassment claims even when female victims did not show a clear link between sex and their job. For example, Judge Stephen Reinhardt of Los Angeles, writing for the 9th U.S. Circuit Court of Appeals, upheld a sexual harassment claim filed by a mail sorter for the U.S. postal service whose supervisor urged her to perform oral sex. Frightened about losing her job, she complied.

“The clear trend in the Title VII case law is against requiring proof of ‘tangible job detriment’ in an action for quid pro quo sexual harassment under Title VII,” Jones’ lawyer Donovan Campbell wrote in his motion to U.S. District Judge Susan Webber Wright. A supervisor’s sexual advances “put the victim on the horns of a terrible dilemma. (She) must spontaneously and under coercion choose between submitting to unwanted sexual contacts, or resist and live in fear of reprisals that might jeopardize her career,” he wrote.

While Jones’ lawyers argued her case should go to trial even if she did not suffer “tangible job detriment,” they also said in Friday’s filing that she continues to suffer mental and emotional distress.

After rebuffing Clinton, Jones claims she was treated “very rudely” by her supervisors and was transferred to a job with less responsibility.

Furthermore, Jones asserted she was discouraged from seeking promotions, afraid to file job grievances, and felt she was working in a “hostile environment.” Her lawyers argue that a one-time, “severe” incident can create the “hostile environment” type of sexual harassment.

Women’s rights advocates agree. “If it is extreme, a one-time incident can amount to a sexually hostile environment,” said Martha F. Davis of the NOW Legal Defense Fund in New York.

Last month, Jones was examined by Patrick J. Carnes, clinical director of a sexual disorders center in Arizona. In a signed declaration released in Friday’s filing, Carnes said her alleged encounter with Clinton has caused Jones “to suffer severe emotional distress.”

“It is clear,” he added, that the trauma for Jones is exacerbated by the “authority role of Bill Clinton. …”

To further complicate matters legally, the Jones suit is not a simple sexual harassment claim.

Instead, she sued under a post-Civil War law that allows damage claims against any official acting “under color of law” who violates a person’s rights under federal law or the U.S. Constitution.

Wright must rule on whether Jones’ claims can go to trial. At this stage, Wright is supposed to assume Jones’ factual allegations are true. If she believes Jones’ claims might show a violation of the law, the judge should reject Bennett’s motion and allow the case to go to trial.

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