Reprinted from The Washington Times , 5am -- April 13, 1998
2 cases improve chances for Jones
By Frank J. Murray
THE WASHINGTON TIMES
Swiftly changing case law could offer Paula Jones a fighting chance to rescue her sexual misconduct lawsuit against President Clinton, according to employment-law specialists.
A new Arkansas Supreme Court decision widening the boundaries for "outrage" claims and next week's argument at the U.S. Supreme Court on a decision that makes job-related "quid pro quo" threats easier to prove are being closely watched for their effect on the Jones vs. Clinton case.
On April 22, Supreme Court justices will consider overturning a 7th U.S. Circuit Court of Appeals decision that eliminated the absolute need to prove related "tangible job detriment" for refusing sex.
That "tangible job detriment" requirement -- still doctrine in the neighboring 8th Circuit -- was a key point in District Judge Susan Webber Wright's dismissal of the Jones case on April 1.
The judge found no issues worthy of jury trial on any of three counts: "quid pro quo" retaliation, hostile work environment or the state offense of "outrage" that produces severe emotional distress.
The new "outrage" decision was handed down two days after presidential attorney Robert S. Bennett asked Judge Wright to dismiss the Jones case. The judge left it unmentioned in her April 1 order granting that motion, although lead Jones counsel Donovan Campbell Jr. raised it in his written brief on March 13.
Little Rock lawyer George Wise, who won the ruling in a case involving an internist charged with fondling the breasts of five female patients, said in an interview the Feb. 19 McQuay vs. Guntharp decision changed Arkansas rules on outrageous sexual behavior. Federal judges apply state law on such matters.
The state high court said conduct "must be determined on a case-by-case basis," but Judge Wright based her decision solely on the old four-point rule for assessing "outrage" or emotional distress.
"The doctor in this case used a position of trust to fondle these women's breasts in a sexual way, but I'd hope we're not coming to a point where a simple touch is a situation of outrage," said Mr. Wise, a declared Clinton supporter who said he was pleased the Jones case was thrown out.
"Our courts have been trying to draw some lines on 'outrage,'" said Mr. Wise, who said he was unaware of Mrs. Jones' claim that Mr. Clinton touched her legs and tried to reach between them.
Little Rock corporate defense lawyer Andrew T. Turner said companies and governments face a backlash unless courts undo "the one free flash rule" allowed in Judge Wright's April 1 dismissal of the hostile-environment claim in the Jones case.
Judge Wright said a fleeting instance of "boorish and offensive conduct," such as a governor exposing his penis to a clerk and asking "Would you kiss it for me?" as Mrs. Jones testified, doesn't add up to workplace sex harassment.
"Whenever the chief executive comes to town, it's 'parents hide your daughters,'" said Mr. Turner, who represents employers in sexual harassment and discrimination lawsuits.
The imbalance of power in such a case should be a jury question, Mr. Turner said, likening a governor's role to that of chief executive officers who have the last word in their companies.
"There's no one to appeal to. The threat, or hostile environment, certainly becomes more powerful when it is coming from the highest person who could make a threat," Mr. Turner said in an interview.
"I agree," said Dorothy O'Brien, the Iowa lawyer who represented plaintiff Lisa Cram in the 8th U.S. Circuit Court of Appeals case that was Judge Wright's key basis for throwing out Mrs. Jones' core claim of job-retaliation for refusing Mr. Clinton's sexual demands.
"To make a prima facie case of quid pro quo sexual harassment, this plaintiff must show, among other things, that her refusal to submit to unwelcome sexual advances or requests for sexual favors resulted in a tangible job detriment," Judge Wright said, citing Cram vs. Lamson & Sessions Co.
In that 1995 case the harasser was an hourly factory employee one level above Miss Cram, who was fired for leaving work early after she broke off an affair with him.
"If you don't go with the mere threat, women will start complying with these sexual advances, believing they can't get any help unless they are fired," said Mrs. O'Brien, who represents plaintiffs in sex cases.
Such a clear-cut retaliation or reward is required by current law in the 8th Circuit -- and in the widely cited 1995 Washington, D.C., case Gary vs. Long, which was also cited by Judge Wright.
The diametrically opposed 6-5 ruling by the 7th Circuit will be considered on April 22 by the high court in Burlington Industries vs. Kimberly Ellerth.
Mrs. Ellerth claimed she rebuffed Burlington Vice President Theodore Slowik when he told her to wear shorter skirts, complimented her legs, inquired about sex practices with her husband, and said during a business trip he could make life "very hard or very easy" at her job.
There was no retaliation, a point seized upon by the defense to get Mrs. Ellerth's case dismissed.
Mr. Bennett maintains the alleged threat in the Jones case is more ambiguous than in Ellerth, and that decision should not apply. But several lawyers said a reversal in the Jones case is certain if the Ellerth decision is upheld.
"I think they're going to let [Kimberly Ellerth] go to trial, and that would surely affect the decision on the Jones case," Mrs. O'Brien said in an interview.
Mr. Turner stressed that Judge Wright correctly applied current 8th Circuit rulings in dismissing Jones vs. Clinton but said they would not stand if the high court affirms Mrs. Ellerth's right to trial against Burlington Industries.
"If it boils down to that issue, with the Supreme Court ruling that you do not have to have tangible job detriment, that would certainly cause Judge Wright to revisit the issue or the 8th Circuit to reverse her," Mr. Turner said. "The Burlington Industries case could turn the Jones case around."Copyright 1998 News World Communications, Inc.
Reprinted with permission of
The Washington Times.
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