Alleged Act Not Illegal, Judge Rules

It was the legal equivalent of the playground basketball rule: No harm, no foul.

Then-Gov. Clinton was “certainly boorish and offensive” if a former state government clerk in Arkansas named Paula Corbin Jones has testified truthfully, and his alleged sexual proposition to her in 1991 indeed was “an odious one,” U.S. District Judge Susan Webber Wright said.

But even so, this was not illegal sexual harassment, the judge concluded, because it happened only once, she kept her job and she did not rush to a psychiatrist.

Since its start four years ago, the case of Jones vs. Clinton has been a political blockbuster, turning an embarrassing spotlight on the past life of the current president.

But when viewed as a simple lawsuit, the case highlighted an issue that has deeply divided judges, lawyers and women’s rights activists. How much evidence of harm does a woman need to prove a claim of sexual harassment by a supervisor?

Some judges have looked to the alleged sexual conduct, its severity and its impact on the female victim. Others have looked to the impact in the workplace: not whether the woman was personally offended, but how it affected her job.

With Wednesday’s ruling, Wright put herself in the latter category. She largely ignored the crudeness of the governor’s purported advances to Jones in a Little Rock, Ark., hotel room, and she paid scant attention to whether Jones emerged frightened, humiliated or traumatized, as was alleged.

Instead, the judge focused on the workplace. Modern sexual harassment law grows out of the Civil Rights Act of 1964 and its provision that prohibits employers from discriminating against employees “because of sex.” It is, in the first instance, a law about job conditions.

“This plaintiff must show . . . her refusal to submit to unwelcome sexual advances or requests for sexual favors resulted in a tangible job detriment,” Wright found.

Despite months of gathering evidence and interviewing witnesses, Jones’ lawyers were unable to show that the governor’s behavior “had a negative effect on her job,” the judge ruled.

Contrary to comments from the president’s side, the judge’s ruling did not “vindicate” Clinton as having told the truth about what may have transpired.

At this stage of the case, prior to a trial, the judge was obliged to assume that what Jones said was true. But even accepting her account of a crude encounter at the Excelsior Hotel, Clinton’s actions did not violate the law, the judge concluded.

Now, in all likelihood, Jones’ lawyers will ask the U.S. 8th Circuit Court of Appeals to reverse Wright and revive the case.

That is a real possibility.

Twice already, Wright has handed down favorable rulings for Clinton that have been reversed on appeal.

When Whitewater independent counsel Kenneth W. Starr sought notes from White House lawyers who had interviewed First Lady Hillary Rodham Clinton, Wright quashed the subpoena. Starr went to the 8th Circuit and won a reversal. Last June, the Supreme Court let that decision stand.

And at an early stage of the Jones case, Wright ruled that the suit could not go to trial while Clinton was president. The 8th Circuit also reversed that ruling; the Supreme Court upheld the reversal on a 9-0 vote.

But an appeal of Wednesday’s ruling could take months, or perhaps years, to reach a final decision. Indeed, with a little less than three more years remaining in his second term, Clinton may be out of office by the time that decision is delivered.

But Jones’ claim could get a boost later this year from the Supreme Court. On April 22, the justices will hear arguments in a Chicago case to resolve what proof a female plaintiff needs to show in a sexual harassment case.

In 1993, Kimberly Ellerth took a job as a merchandising assistant for Burlington Industries. Her sales manager made offensive comments about her skirts, her legs and her breasts, and suggested she could advance if she had sex with him. She refused and kept her job, and is now trying to bring her sexual harassment claim to trial.

At issue before the Supreme Court is the very question posed by Wright: Does a female plaintiff have to show “a tangible job detriment” to bring her sexual harassment claim before a jury?

If the court sides with Ellerth and concludes that sexual harassment plaintiffs need not show a “job detriment,” the ruling could give the 8th Circuit court strong grounds for reversing Wright and reviving Jones’ lawsuit.

From the start, however, many legal experts thought Jones’ case was weak. Unlike most plaintiffs, she complained of only one outrageous incident, not a pattern of obnoxious behavior. Clinton did not retaliate against her for rebuffing him, and her job continued as before.

“I feel like finally someone came to their senses here,” said Stanford law professor Barbara Babcock. “I’m just surprised it didn’t happen sooner. That she suffered, that is part of the case that wasn’t here.”

Still, had the Jones case been brought in California, the outcome could have been different, said Barbara Bryant, who teaches sexual harassment law at UC Berkeley.

“The courts here would give a lot more weight to the psychological impact” on the plaintiff, not just the effect on a woman’s job, she said.

Times staff writers Maura Dolan in San Francisco and Robert L. Jackson in Washington contributed to this story.