JONES RULING BLURS ISSUES.
For a man concerned about his legacy, President Clinton may have invited one he didn't want: marking himself as the person who set back a decadelong tide against sexual harassment.
At worst, his court victory against a harassment lawsuit could provide a legal road map to punishment-free behavior by perpetrators and have a chilling effect on women filing complaints, many analysts, lawyers and academics believe.
And at the very least, it reopens a debate over what is proper sexual conduct between men and women at work and proves wrong some beliefs that have taken hold in the last decade, most notably the thought that any unwanted sexual advance was illegal harassment.
It is a stark contrast to the results when Anita Hill accused Supreme Court nominee Clarence Thomas of sexual harassment in 1991. Then, her initial failure to get a hearing from a male-dominated Senate led to a backlash that saw more women elected to the Senate, far more women stepping forward to complain about harassment, and more employers instituting policies against harassment.
Now, Clinton's success at denying Jones a hearing in court could reverse some of those same effects.
``It's a setback,'' said Gwendolyn Mink, a feminist writer and a political scientist at the University of California, Santa Cruz.
``It might make more women reluctant to file charges of sexual harassment,'' said Catherine Fisk, a law professor at Loyola Law School in Los Angeles.
The case underscores another problem in the way men and women work together: There still is no clear understanding of what constitutes sexual harassment.
Defining sex harassment
``One of the problems with the term `sexual harassment' is there are so many
definitions of it,'' said Amy Oppenheimer, a Berkeley, Calif., attorney who trains companies how to handle the issue. ``Eskimos have so many words for snow, yet we have only one term for this huge variety of behavior.''
What Clinton was accused of (and denied) doing may not have been sexual harassment under the law, she said, but it would have been considered sexual harassment and probably cause for firing in many companies.
``If those facts are true, what he did was inappropriate, disgusting, shouldn't be tolerated,'' Oppenheimer said. ``Whether it's legally actionable is irrelevant.''
For millions of women, sexual-harassment policies at work, where offending bosses face the possibility of being fired or receiving other discipline from lawsuit-wary companies, already provide them more protection than the law.
But, with differing definitions from courts and employers and water cooler talk, people confuse what is legal and illegal, what is acceptable and what is improper.
Indeed, there are misperceptions on both sides, people who complain that the law got too tough and made people afraid to talk to one another about anything personal and people who think they have more legal protection than they actually do.
``There is a perception that men can't even compliment women for their clothes for fear they'll be accused of sexual harassment,'' Fisk said, ``or that a man can't have a drink with a woman in a business situation out of fear of being accused.''
People are confused
Regardless of the perceptions, the Clinton case underscores that the law does not go as far as many might have thought.
``The basic definition of sexual harassment hasn't changed in a long time,'' said Lynn Bernabei, a Washington lawyer who specializes in sexual-harassment lawsuits.
``What the Paula Jones case brought out is that people are getting confused about what is bad behavior and what is an unwelcome sexual advance that has an adverse job effect. The law doesn't really regulate bad behavior between men and women.''
Ironically, it doesn't matter whether Clinton actually did what Paula Corbin Jones accused him of doing in an Arkansas hotel room in 1991, exposing himself and making a crude sexual proposition.
Rather, the consequences now stem from his aggressive and successful legal defense. Even if Clinton did expose himself to Jones, his lawyers argued, it wouldn't have been illegal harassment because it would only have happened once, because it did not create an ongoing hostile work environment and because she wasn't harmed in any provable way.
``It could well be the opening of the door to serial harassment,'' Mink said. ``If one shot is OK, then smart perpetrators will simply not visit the same behavior on one woman more than once and merely spread it around.''
`Getting away with it'
Within hours of the legal decision, the idea that Clinton's case showed the way to get away with harassment started entering the male culture with locker-room jokes. On the Don Imus radio program, for instance, a Clinton impersonator Friday morning read an ad for ``Bubba's Guide to Getting Some and Getting Away With It,'' including advice how to avoid getting in legal trouble.
Fisk thinks the case will not have a ``huge result,'' noting that businesses and other employers will still try to address harassment because they will still fear the high costs of harassment lawsuits.
But even she added that the Clinton case ``may cause people to believe a certain amount of sexual misconduct in the workplace is legally acceptable. And it may be that because of the notoriety of the case, people will conclude that it is OK to do what Clinton was accused of doing.''
The case also could affect the way some women react to workplace situations they feel are harassment.
``Some women will probably decide that they shouldn't say anything because they'll be thinking, I'll have to go through this horrible process just for the judge to throw it out because it didn't meet the legal standard,'' said Nina Atwood, a Dallas psychotherapist and author of ``Date Lines: Communication from Hello to I Do and Everything in Between.''
``This just adds to the evidence that society doesn't support women because there was so much skepticism in the public and the legal system,'' Atwood said. ``Victims of sexual harassment will have the same reluctance to come forward as rape victims who never see their case go to trial or see their rapist get off with a light sentence.''
Mink criticized Clinton and his lawyers for threatening to attack Jones' own sexual history and for minimizing the impact of a crude sexual advance from a superior at work.
``It raises grave questions for women who feel aggrieved, to submit themselves to that kind of scrutiny, to subject themselves to trivialization of what they say they feel,'' Mink said. ``Those things do not bode well for women.''
It's not just the reaction to Jones or her allegations that confuses matters. It's the ruling that even a crude proposition did not constitute harassment under Arkansas law because it only happened once.
Atwood said women will be left wondering when they should complain.
``If one time is legal, is two times enough to file a suit?'' she asked. ``Or does it have to be three times? Is that even enough? And what do women do in the meantime while all of this is happening? Should they just have to wait for it to happen again and again so they can make a claim?''
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|Publication:||Daily News (Los Angeles, CA)|
|Date:||Apr 5, 1998|
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