Sexual Harassment in and of Itself Should Be an Injury

The dismissal of Paula Corbin Jones’ suit against Bill Clinton reflects a greater reality of how our legal system handles sexual harassment cases: Plaintiffs often face uncertain law and insurmountable factual burdens.

Although some plaintiffs certainly prevail in sexual harassment cases, many suits are dismissed for the same reasons the judge gave for denying even a trial to Jones. The main significance of the judge’s dismissal is that it shows how difficult it is to determine what is sufficient to establish a legal claim for sexual harassment.

Apart from the fact that Jones was suing the president of the United States, the basis of her allegations is all too common. A woman in a relatively low-level position claimed that a superior harassed her. The alleged manner of harassment may have been unusual, but the reality is that many women have long experienced harassing behavior by male employers and supervisors.

However, as is often the case in harassment cases, no one was present other than Jones or Clinton. How can she prove her version of what occurred? Quite similarly, Anita Hill’s allegations against Clarence Thomas came down to her word against his. The legal system cannot assume that a plaintiff is telling the truth and that the defendant is lying. When no one else is present, it is inherently difficult for the plaintiff to prevail.

Jones’ suit reveals other problems faced by plaintiffs in sexual harassment claims. Is an act of harassment in itself a violation of civil rights or must the plaintiff prove additional employment-related harms? Paula Jones’ suit was dismissed, in part, because she could not prove any adverse effects to her employment. Yet should this be a requirement?

This issue is pending in a case before the Supreme Court. In the case, an employer threatened an employee with firing unless there was a sexual relationship. The employee refused but was not fired. The court must decide whether this is sufficient for a claim of sexual harassment.

I would hope that the court would conclude that harassment itself is an injury, even if no adverse employment action is taken. A male employer exposing himself or demanding sex is an injury, even if there is no economic loss for the victim. If the Supreme Court agrees that harassing behavior is enough for a claim, even without adverse employment action, that could pave the way for the court of appeals to reverse the district court’s dismissal of Paula Jones’ suit.

The Jones’ suit raises yet another unresolved legal issue regarding sexual harassment: What conduct is sufficient to constitute sexual harassment? Under the law, there are two ways of proving sexual harassment. One is a quid pro quo, where an employer demands sex in exchange for a promotion or to avoid firing. The other is when there is a hostile work environment. The district court judge in Arkansas found that there was not evidence of a quid pro quo by Clinton and that one incident was not sufficient to create a hostile environment

Shouldn’t one egregious act be enough to create a hostile environment? I would imagine that any woman subjected to what Jones alleges--a person in supervisory authority exposing himself and demanding sex--would feel extremely uncomfortable in the workplace. The broader issue concerns evaluating what or how much must happen to create a hostile workplace based on sex. The problem for the legal system is that it is difficult to articulate general rules beyond the obvious. Courts are left with no alternative but a case-by-case evaluation of the facts in deciding whether there is a hostile environment based on sex. The result is that plaintiffs face an uncertain law and unpredictable results.

The claims of Anita Hill and Paula Jones have exposed for public debate a serious problem in the workplace. A significant percentage of women and many men claim to have been victims of sexual harassment. The legal system must be available to provide a remedy for such behavior. But the dismissal of the Jones suit shows that such cases often are very difficult for plaintiffs.

Amid all the speculation about the political implications of the judge’s ruling, the larger lesson about the law should not be lost: Sexual harassment often is a very difficult claim to prove and win. More attention has to be given to clarifying the law and making the legal system more hospitable to plaintiffs while still protecting defendants from meritless suits. It is a daunting task and it is not surprising that after little more than a decade of sexual harassment suits, the legal system is still struggling.