Sue Hartigan <[EMAIL PROTECTED]> writes:
WASHINGTON -- Whether Paula Jones succeeds in her efforts
to reinstate her lawsuit against President Clinton may
depend on
a different case that will be argued in less than a week
before the U.S.
Supreme Court, lawyers who deal with sexual harassment issues
said
Friday.
On Wednesday, the justices will be asked to decide whether a
Chicago
businesswoman may claim sexual harassment after she was
subjected to
sexual advances by a supervisor, but suffered no adverse job
consequences after she refused to comply. One issue is whether
a legal
case of sexual harassment is possible when no tangible
detriments occur
at the work place.
In dismissing the Jones lawsuit earlier this month, a federal
judge said one
reason for the ruling was that Mrs. Jones failed to show any
tangible
detriment at her job even if the allegations she made about
President
Clinton were true. Mrs. Jones had argued that after she
rebuffed a crude
sexual advance in 1991 at a Little Rock, Ark., hotel from
Clinton, who
was then governor of Arkansas, she suffered in various ways at
her state
clerical job.
In her ruling, Judge Susan Webber Wright of U.S. District
Court took
note of the upcoming Supreme Court argument and said it would
have no
relevance to the Jones case, because the circumstances were
different.
But Yolanda Wu, a staff lawyer at the NOW Legal Defense and
Education Fund, said that if the Supreme Court rules in favor
of the
Chicago woman, Kimberley Ellerth, Mrs. Jones' chances of
winning her
appeal would be greatly enhanced. "It's very much the same
legal issue in
the Paula Jones case," Ms. Wu said, "whether you have suffered
some
tangible or economic harm to make out a case of sexual
harassment."
Lawyers for Mrs. Jones, who announced this week that they
would ask
the 8th U.S. Circuit Court of Appeals, in St. Louis, to hear
their appeal,
did not detail their legal arguments. But Mrs. Jones' main
lawyer,
Donovan Campbell Jr., referred to next week's Supreme Court
argument
in Burlington Industries vs. Ellerth.
The 7th U.S. Circuit Court of Appeals, in Chicago, ruled that
Ms.
Ellerth's case should go forward even though she had suffered
no obvious
harm at the work place.
Ms. Ellerth had sued the company, Burlington Industries,
charging that a
vice president for whom she worked made frequent comments
about her
legs, said he could make life at the office difficult for her,
asked her to
engage in sex with him and said that he was reluctant to
promote her,
because she was unwilling to comply. But she was promoted
nevertheless.
Michael Lynch, a Washington lawyer who specializes in
sexual-discrimination suits, said that if the Supreme Court
ruled in favor
of Ms. Ellerth, "it may even compel the 8th Circuit to reverse
Judge
Wright."
Ms. Wright had written that the cases were different because
Ms. Ellerth
had been threatened, but there was no similar threat in Mrs.
Jones' case.
Ms. Yu also noted that the courts have been split on a
separate issue
central to the Jones case, whether a single sexual advance may
be so
egregious as to create a hostile work environment.
The Supreme Court said in a landmark 1986 case that a sexual
advance
had to be "severe" to create a sexually hostile environment.
Ms. Wright's
ruling suggested that a one-time encounter could meet this
requirement
only if it was something akin to a sexual assault. She said
Clinton's
behavior, if it had occurred, would have been boorish but
would fall short
of that standard.
A third avenue for appeal could be the interpretation of an
Arkansas
statute making "outrage" ground for a civil lawsuit. Ms.
Wright was
obliged to consider Arkansas law in evaluating whether
Clinton's alleged
behavior could be said to be outrageous conduct.
But lawyers noted that her opinion did not mention a Feb. 12
ruling by
the Arkansas Supreme Court, which offered a fresh
interpretation of the
outrage law. The state Supreme Court, in a split opinion,
ruled that a
case should be allowed to go to trial in which five women had
charged
that a doctor improperly and needlessly touched their breasts
during
medical examinations.
While that behavior might seem less offensive than the
complaint against
Clinton -- that he lowered his trousers and asked Mrs. Jones
to perform
oral sex -- Debra Katz, a lawyer specializing in
sexual-harassment suits,
said the Arkansas court ruling does not help Mrs. Jones.
"That opinion rested on the notion that there was a special
relationship
between a doctor and his patient," she said. "That could even
help
Clinton's case, since I don't think there's an argument to be
made that
such a relationship exists between an employer and an
employee."
John Whitehead, the president of the Rutherford Institute,
which is paying
Mrs. Jones' legal expenses, but not lawyers' fees, said he was
also
considering providing a grant to her lawyers who have been
working on
the case without pay.
Campbell said Friday that he believed his unreimbursed fees
totaled
$500,000 to $1 million.
Whitehead said that he believed the lawyers' costs were close
to $1
million but that any grant his organization would make would
fall far short
of that.
--
Two rules in life:
1. Don't tell people everything you know.
2.
Subscribe/Unsubscribe, email: [EMAIL PROTECTED]
In the body of the message enter: subscribe/unsubscribe law-issues
