Jones, Army Sex Harassment Cases Called Lurid but Not Landmarks
As the dust settles from legal decisions involving the president of the United States and the Army’s top-ranking enlisted man, women around the country are debating the implications of the highest-profile cases to surface since the phrase “sexual harassment” entered this nation’s legal and cultural lexicon.
Will the military ignore future accusations of misconduct because Sgt. Maj. Gene C. McKinney last month was cleared of all but one count against him? Does the dismissal this week of Paula Corbin Jones’ lawsuit against President Clinton signal any change in the way sexual harassment is defined?
Many sexual harassment experts, in fact, believe that the cases, despite their headline-grabbing appeal, will ultimately have little or no impact in the courts or in ordinary workplaces. They say that workplace behavior has been permanently changed as awareness of harassment problems has grown in recent years.
Nancy Bornn, a Santa Monica plaintiffs’ lawyer and management consultant, said that in 1984, when she brought her first sexual harassment case against an employer, “no one was ever fired for sexual harassment, even if you had it on videotape.”
But now, Bornn said, when problems arise, litigation-wary employers know they have to respond quickly, sometimes by firing the suspected harasser. “That’s a dramatic change,” she said.
Twenty years ago, harassment generally was considered an unpleasant fact of workplace life. But as legislatures and courts established an employee’s right to bring action against unwanted advances, the days of “giving at the office” seemed numbered.
As a result, some feminist legal scholars shuddered when federal Judge Susan Webber Wright ruled Wednesday that Clinton’s deportment in the Jones case was “boorish and offensive” if true--but not illegal.
“When are people going to wake up and see that emotional harm to a woman is a compensable injury?” asked Jennifer Drobac, a Santa Cruz attorney who specializes in sexual harassment law.
Drobac was uncomfortable comparing the Clinton and McKinney cases, noting that “the military is very far removed from the rest of the judicial system.”
Many employment lawyers and other sexual harassment experts say McKinney was cleared on all but one count only because of the extraordinary burden of proof needed in such cases in military courts.
If McKinney were an executive at a typical company and faced similar charges from some of his female subordinates, “there’s no way in the world he would have walked away from that. There was enough information there that he was extraordinarily unprofessional or guilty of sexual harassment,” said Monica Ballard, a Santa Monica consultant on harassment and diversity in the workplace.
Ballard said the Jones case against Clinton, on the other hand, failed simply because Jones couldn’t show that her career suffered as a result of the alleged encounter.
Still, both cases placed sexual harassment on front pages, right alongside federal budgets and foreign aid. “My fear,” Drobac said, “is that Americans will say: ‘See, women really have been going overboard, and this stuff is not a problem, and it’s not actionable. So relax, babe.’ ”
Will there now be, wonders National Organization for Women President Patricia Ireland, “a perception out there that every boss gets one free feel?”
Carmen Pate, president of the Washington-based Concerned Women for America, said that both cases “certainly send a negative message to women . . . that if you speak out when you are sexually harassed, people are not going to take you seriously. No. 1, your character is going to be verbally attacked, and you may not get your day in court.” As a result, Pate speculated, “many women may hesitate before coming forward.”
With the Clinton and McKinney decisions, Pate added, “unfortunately, in [men’s] minds, it’s the law saying: ‘You can expose yourself, ask a woman to touch you and that is not considered harassment.’ ”
But consultants such as Ballard said those concerns aren’t warranted, given the ever-increasing sensitivity lawsuit-wary employers are showing to harassment issues. She said her clients are working on rooting out ever-more-subtle forms of sexual harassment.
What’s more, former Rep. Patricia Schroeder saluted Wright’s “courage.”
“As one of the people who helped draft the sexual harassment law, I never did see what the legality of the [Jones case] was,” Schroeder said.
“You could say Paula Jones’ charges were disgusting, but were they illegal?” Schroeder wondered. “Hopefully, now we’ll be able to get the discussion back on line, to see what is real--what is legally actionable--and what is not.”
This was an opinion shared by many women in the work force.
Victoria Tschinkel, a strategic environmental consultant in Florida, said she welcomed the decision in the Jones case because “any law is strengthened when it becomes clarified and more real.”
Besides, Tschinkel continued, “I think many men have become frightened and hostile toward sexual harassment laws because the word has been thrown around so loosely in recent years . . . even though in principle they would find it extremely inappropriate to use sex as a workplace lure.”
Social critic Wendy Kaminer, a fellow at the Radcliffe Public Policy Institute, echoed this view. Jones “had no case in the law,” Kaminer said. “There was no evidence of sexual discrimination. That has always been the law, and that hasn’t changed.”
What has changed, Kaminer suggested, is that “in the last several years, we’ve been focusing on the sex part, not the harassment part. And that has been a great mistake. The cultural definition has been much broader than the legal definition, and that has had a real effect in the workplace.”
In office situations, she said, “there are a lot of people who are having consenting relationships, and I don’t think we want to regulate this. I hope that the message is that offensive, boorish behavior is not necessarily illegal, nor should it be.”
Novelist, poet and essayist Anna Castillo of Chicago said the good news is that unlike 20 years ago, a president’s behavior now can be brought into question.
“We can now raise these issues and we have some legal ground to do so--even if the Paula Jones case was looked at as a fiasco, and the [McKinney case] was looked at as a product of one of those male-dominated institutions, the military, that leaves no breathing room for females,” Castillo said. “I hate to sound like someone who is easily pacified, but I’ve been thinking lately that for many years, we had no right at all to make these claims.”
Former White House social secretary Letitia Baldridge, 72, said she has seen more than her share of “real sexual harassment.” Baldridge entered the working world in 1948 and recalled, for example, “cleaning ladies in one building who worked four hours longer than the male cleaners--at night--and earned the same amount of money. To me, that is real sexual harassment.”
Because of the Clinton and McKinney cases, when alleged behavior is challenged in court, “it’s going to demand almost an airtight case,” said Elisa Sanchez, president of MANA, a national Latina organization in Washington. One lesson from the two cases, she said, is that “women put themselves in a very vulnerable position when they bring these kinds of cases.”
So much so, said Laurie Beth Jones, an El Paso advertising agency owner, that she was moved to turn to the Bible when she thought about the ramifications of the recent sexual harassment cases.
There she found an admonition: “Don’t be hot-headed and rush to court. You may start something you can’t finish and go down before your neighbor in shameful defeat.” The lesson, according to Jones: “Discuss the matter with him privately. Don’t tell anyone else, lest he accuse you of slander, and you can’t withdraw what you said.”
But Ireland expects the Clinton and McKinney cases will bring renewed vigilance, cautioning that “any man who thinks it’s open season on women because of these two decisions is going to be in for a rude surprise.”
Times staff writer Stuart Silverstein in Los Angeles contributed to this story.