Sex and the Law

Bill Clinton should be happy that Paula Jones' sexual-harassment lawsuit against him won't be decided by the city attorney of little Murfreesboro, Tenn. It was there in 1995 that local artist Maxine Henderson exhibited some of her work in the city hall rotunda, including Gwen, a painting of a partly nude woman. A city employee saw the painting and was offended--so much so that she filed a sexual-harassment complaint against her employer. City attorney Tom Reed promptly whisked the painting away. Although a judge eventually ruled that Henderson had a First Amendment right to hang her art in the rotunda (it's a public place, after all), the lawsuit frightened Reed. To this day, he won't allow Gwen to be displayed in city offices that aren't public places. "In my opinion, that would count as sexual harassment," he says.

In today's overheated legal environment, if an impressionistic painting more modest than many a Matisse can, on its own, count as sexual harassment, the President could be doomed. Jones maintains that as Governor of Arkansas, Clinton exposed himself to her and asked for oral sex at a Little Rock hotel. There was nothing impressionistic about it, Jones said in her deposition last fall: "I mean, it was disgusting."

Her account is a matter of great dispute, one likely to land the President's case in an Arkansas courtroom in May. But in truth the tangle of laws currently defining sexual harassment is so jumbled that even if everyone could agree on the facts, it's simply impossible to predict the outcome of a case like Jones v. Clinton. Just 25 years ago, sexual harassment was considered a radical-fringe by-product of feminist theory. Today it's embedded in multiple Supreme Court decisions (three more are expected before July), thousands of corporate policies and a host of lower-court cases that have spread like kudzu across the legal landscape. The result is a thicket of rulings. Since 1991, juries have returned well over 500 verdicts on sexual harassment--decisions that often contradict one another and send mixed signals about how we should behave anytime we meet a co-worker we'd like to see after five.

Because of the twin trends of long hours (10% more than we worked in 1969) and more women working (18 million more today than in 1980, or about 50% of the labor force), more Americans than ever are flirting, dating and propositioning at work. Actually, only a tiny proportion of office come-ons result in harassment complaints; of those that do, just 9% end up in formal proceedings, whereas 38% of relationships that start on the job survive into the long term. The huge surge in sexual-harassment cases that took place in the early '90s has slowed. Such cases are still being filed at the rate of 15,500 a year--some 60 new cases every working day--compared with 6,900 in 1991, but the number hasn't changed much for three years. A recent survey of human-resources managers found that 7 out of 10 handled at least one sexual-harassment complaint last year, down from 9 out of 10 in 1995.

Meantime, employers fearing lawsuits are stopping harassment before it starts. Some, like General Motors and Wal-Mart, have instituted zero-tolerance policies banning just about any speech or conduct with sexual undertones, like sending E-mail with a naughty Web address to a co-worker, which not so long ago would have been deemed not just harmless but constitutionally protected. While it's rare for nonthreatening behavior to be ruled harassment, it happens. In 1993 the University of Nebraska forced a grad student to remove from his desk a picture of his bikini-clad wife after two fellow students complained that the photo violated the school's sexual-harassment policy.

The legal principle of harassment hinges on impossibly squishy terms like "unwelcome" and "pervasive," words that a thousand lawyers can define in a thousand ways. As a consequence, some despicable harassers get off easy, just as some men (and, increasingly, women) with innocent intentions can have their lives ruined. That's because intent seldom defines harassment; reception and perception do.

The confusion and excessive rulemaking may already be sowing the seeds of backlash. In a recent TIME/CNN poll, just 26% of those surveyed called sexual harassment of women "a big problem," down from 37% in 1991. What's more, 57% of men--and 52% of women--agree that "we have gone too far in making common interactions between employees into cases of sexual harassment."

In short, many think the solution has become as bad as the problem. "In 1964 [when discrimination based on gender first became illegal]," says UCLA harassment-law expert Eugene Volokh, "if you told a member of Congress, 'If you vote to bar discrimination based on sex, you will prohibit employees from putting pictures of their wives in bikinis on their desks,' most legislators would have said, 'Wait a minute, where does it say that?'"

What exactly is the law on sexual harassment, and how did it evolve into such a beast? Legally speaking, there are two kinds of sexual harassment, and Jones--to take a not so random example--charges both. The first is called "quid pro quo" harassment, and it's the easier to grasp. If your boss docks your pay or fires you or otherwise punishes you for rebuffing an advance, he's flat-out guilty. Jones, for instance, says her supervisors at the little state office where she was a clerk mistreated her after she rejected Governor Clinton's alleged advance. Her co-workers got bigger raises, she says, and her job became a "dead end." Clinton has denied that he propositioned her (and indeed has denied that he ever sexually harassed any woman). Further, Clinton's lawyers say there was never any "quid" for Jones' refusal to "quo"--that she received a promotion and pay hikes as the others did.

A generation ago, Jones would have had no case. Not even blatant quid pro quo harassment was illegal; many judges simply deemed such matters "personal." When they were allowed to bring lawsuits, plaintiffs--nearly all women at the time, and still nearly 90% women today--had no right to jury trials, leaving their fate up to a mostly male stable of judges.

Things began to change, albeit slowly, in the '60s. In 1964 Southern members of Congress tacked "sex" onto the list of protections in the pending Civil Rights Act, not because they cared about harassment but because they thought the idea so laughable that it would kill the entire bill. It wasn't until the 1970s that courts started taking the antidiscrimination provisions on sex seriously, and not until 1977 that a federal court of any stature--the U.S. Court of Appeals for the District of Columbia--said quid pro quo harassment violated the act. After the 1991 furor between Anita Hill and Clarence Thomas raised public consciousness, George Bush signed a law granting sexual-harassment plaintiffs the right to jury trials and big-money damages.

Even then, quid pro quo cases remained tough to prove, since employers could simply say the retribution resulted from poor job performance. Victims began to point out that co-workers could create an abusive climate against women without actually demanding sex in exchange for something. One such victim was Mechelle Vinson. In the 1970s Vinson worked as a teller at Meritor Savings Bank, where, she later claimed, her boss began asking her for dates. At first she said no, but eventually she relented; she estimated they had sex 40 or 50 times. She claimed that she felt pressured into the relationship and that he exposed himself, groped her at work and even raped her several times. Still, he never fired or even demoted her when she objected. Vinson lost her court case.

With the support of several women's groups, however, she appealed. In 1986 the Supreme Court ruled in her favor--and in doing so threw open a huge new arena for sexual-harassment claims. In its first ruling ever on sexual harassment, the court held that speech or conduct in itself can create a "hostile environment"--like the one Vinson alleged at Meritor--and that such an environment violates the Civil Rights Act. According to the Justices, unwelcome verbal or physical behavior, if "severe or pervasive" enough, is discriminatory even when there is no quid pro quo.

Today quid pro quo cases remain hard to win, and most sexual-harassment cases are based on the looser principle of "hostile environment." At a trial last year, Staci Bonner, a former research editor suing Spin magazine and its publisher Bob Guccione Jr., failed to convince a jury that because Guccione gave choice assignments and other perks to women who slept with him--but not to her--he was guilty of quid pro quo harassment. But the jury did say that his apparent favoritism, as well as other editors' coarse propositions and unwanted back rubs, created a hostile environment at the music magazine. The case is being appealed.

Given the expansive terminology, just about anything can count as a hostile environment, depending on who's defining the terms. In 1995 the Montana Human Rights Commission awarded damages to Josephine Dernovich, a former municipal clerk horrified by smutty pictures her co-workers passed around. The images were stomach churning to her--some depicted bestiality and incest--but no one else complained. None of the pictures was directed solely at her, and most of her colleagues were women. It's hard to understand how she was discriminated against because of her sex (and not, say, her attitudes about sexual pictures). Still, Dernovich won.

Paula Jones too is asserting that Clinton's alleged pass at her created a hostile environment, but she may have a hard time proving it. The judge in the case has ruled that a single incident of harassment could be enough to create a hostile environment. But most experts agree that such an incident would have to be especially outrageous. "From what I've seen, [Jones] clearly doesn't have pervasiveness--it was just one incident--so she has to prove severity," says Deborah Epstein, who teaches law at Georgetown University. "And there are lots of things worse than this incident that the courts have said are not severe enough." Epstein cites the plight of Kimberly Weinsheimer. In the mid-'80s Weinsheimer was a Rockwell International Corp. employee who inspected parts used to build spacecraft at the Kennedy Space Center. In her suit, Weinsheimer said that over an eight-month period, a co-worker frequently asked that she "suck him," grabbed her crotch and breasts and once held a knife to her throat. Another colleague allegedly touched his penis to her hand when she was looking away. Even so, a federal court ruled against her, in part because the judge thought the harassment wasn't severe enough. "The comments, in both their nature and their causes, were apparently commonplace and routine," the judge wrote, as if frequency somehow diminished severity.

To avoid the same fate, Jones' lawyers now argue that Clinton was more aggressive in the hotel room than Jones said in her original 1994 complaint. In her recent deposition, Jones said that Clinton in fact tried to grab her crotch and kiss her and that he briefly blocked her way--not simply that he had lightly touched her, as Jones first said. These elements make the incident sound much more "severe," especially coming from her ultimate boss. (Courts are tougher on accused CEOs than accused co-workers.) Clinton's attorneys, who contend that the new details are lawyer-induced embellishments, will doubtless want jurors to compare Jones' original complaint with her current story. Just on Friday she added several charges, including an expert's testimony that the alleged incident left her with symptoms that resemble post-traumatic stress disorder.

Jones' team is employing a legal strategy that most sexual-harassment plaintiffs can't afford--a search through the garbage bin of Clinton's sexual history. Specifically, her lawyers hope to present "a pattern and practice" by the President of sexually harassing other women, bolstering Jones' broader claim of sexual discrimination. (The courts have said such patterns are relevant in discrimination cases.) Jones and her lawyers figured that if they could find as yet undetonated "bimbo eruptions" in Clinton's past, they could show this damning pattern: that again and again Clinton hits on women with less power than he. It was this investigation that yielded Monica Lewinsky, not to mention Kathleen Willey and dozens of others tracked down by the Jones team. Today Willey could be Jones' best shot at showing the pattern. When she was a White House volunteer, Willey says she went to the Oval Office to ask the President for a paying job. Before she left, she says, Clinton hugged her, felt her breasts and then placed her hand on his aroused genitals. In his own deposition, Clinton denied each of these charges.

Clinton's lawyers in turn scoured Jones' sexual past, but whatever they came up with probably won't be presented in court--thanks in part to Clinton. In 1994, when he signed the Violence Against Women Act, he restricted the kinds of digging that defendants can do into the past of sexual-harassment plaintiffs--and specifically allowed such evidence against harassers who are accused of assault (the Jones team has argued in pleadings that Clinton's alleged behavior in the hotel room amounts to assault). "Now you have to be very careful about dredging up a woman's psychological or sexual history," says Judith Vladeck, a New York City lawyer who has handled sexual-harassment cases for 20 years. Technically, the new rules don't apply to the Jones case, as she filed suit before they took effect. But the rules have created a new climate in which such evidence appears unseemly. And anyway, for political reasons a Democratic President won't want to look too aggressive in trashing his accuser.

The Jones team's search has doubtless been frustrating even as it has embarrassed the White House: Lewinsky, the biggest catch, won't be part of the trial. Federal Judge Susan Webber Wright has ruled that no one can drag that scandal into her courtroom, in part to avoid interfering with special prosecutor Kenneth Starr's case. And anyway, no one claims that Clinton's alleged encounters with Lewinsky were unwelcome. Still, says Washington lawyer Douglas Huron, "if a man uses the power of his position to pursue a woman, then that could be deemed relevant." In spite of Wright's ruling, it's easy to imagine that "consent" is meaningless when offered by a starstruck intern. If Clinton were president of a FORTUNE 500 company instead of the country, he'd probably be toast. "If a CEO had sex with a 21-year-old girl in his office," says Monica Ballard, a consultant who advises businesses on sexual harassment, "I would tell the company, 'Fire him for poor judgment.'"

Employers pay people like Ballard hundreds of dollars a day for their advice. Headlines on sexual harassment scare the money out of them. Just last month the EEOC obtained its largest sexual-harassment settlement ever when drugmaker Astra U.S.A. agreed to pay nearly $10 million to scores of employees who claimed they had been fondled, asked for sex or exposed to a hostile environment by the former company president and others. Other firms have lost even more in jury verdicts favoring plaintiffs.

Companies have responded to the legal morass with wildly varying policies. Some ignore the issue, and others, particularly those burned with lawsuits, even ban interoffice dating. Nearly 9 out of 10 companies have procedures for dealing with sexual harassment, according to a recent survey, but many of those procedures are weak--"a paragraph in the company handbook," says Ellen Bravo, co-director of the National Association of Working Women.

Experts routinely warn companies not to get caught with lax policies, which can enrage juries and inflate settlement costs. Consultants' on-site training is usually straightforward: if what you're thinking even vaguely involves sex, keep it to yourself. Ballard poses hypotheticals such as, What if someone gets the Victoria's Secret catalog at work? "If someone makes a comment about that, you get rid of it," she says. Parallax, her company based in Santa Monica, Calif., teaches that one complaint is enough to change office policy--and such advice is becoming the standard in business schools and financial newspapers. A U.S. Department of Labor brochure on sexual harassment even advises that those who hear "sexual jokes or... sexual things that you didn't like" could be victims. Several states offer equally broad, subjective definitions.

Employers are heeding the advice, sometimes too well. The University of New Hampshire suspended a professor of technical writing, J. Donald Silva, in 1993 for classroom remarks he had made the previous year. Besides other suggestive comments, Silva had compared the focus required for writing to that demanded by sex. He had also said, "Belly dancing is like Jell-O on a plate with a vibrator under the plate." Weird, yes. But harassment? The university thought so and directed Silva to take counseling at his own expense. Instead he filed suit. Backed by the Center for Individual Rights, a conservative Washington-based advocacy group, Silva won. A federal judge ruled that the school had trampled on his First Amendment rights. The university reinstated Silva, who is now 62 and teaching once again.

Some employers have got more than a slap on the hand. In an important case in California, a jury awarded Ralph Cotran $1.78 million in lost compensation four years ago in a wrongful-termination lawsuit against his former employer, insurance brokerage Rollins Hudig Hall International. The company fired Cotran in 1993 after two secretaries alleged sexual harassment. He denied it and claimed that he and the two women had been involved in consensual relationships. "I didn't do it, but the company ignored every shred of evidence on my side," he says today.

The jury agreed with the defendant--as have other juries in a few such backlash cases. The most famous was brought by Jerold Mackenzie, a former Miller Brewing executive, who claimed that the company wrongfully interfered with his employment status after a co-worker, Patricia Best, accused him of sexual harassment. He had recounted for Best an episode of Seinfeld on TV that indirectly referred to the clitoris, and then showed her the word in the dictionary. A jury gave him $26.6 million last summer.

But such cases remain the exception, and few have been upheld on appeal. Part of Mackenzie's giant damage award has already been set aside by a judge. And the California Supreme Court dealt Cotran a setback in January, when it ordered a new trial, which may be harder for him to win. The court said if employers fully investigate and arrive at a "good-faith belief" that harassment occurred, they may fire the alleged harasser.

The next big legal battle on sexual harassment will probably center on free-speech concerns. UCLA's Volokh says liberal court rulings have had a "chilling effect" on free speech at work. He says many employers are scared to write anything other than zero-tolerance policies that prohibit any potentially offensive speech. "Something like 'Women don't belong here,' that's sexist, but it should be protected speech," Volokh says. Few defendants have used the First Amendment as a defense. ("Lawyers just don't think about it," Volokh adds.) As sexual-harassment laws strike further and further into what we are allowed to say to our co-workers, look for that to change.

Of course, some contend that giving up our right to tell dirty jokes is a small price to pay to prevent harassment. Georgetown's Epstein argues, "I think that one has to balance your concern for the First Amendment with your concern for equality." Maybe. But because so many of us spend more time at work than at home, today's co-workers are the neighbors and bowling-league partners of yesteryear. It's difficult to imagine that we can't talk to them about sexual topics--not just our personal lives but Monica and Bill, the teacher and her 13-year-old student lover, or Marv Albert and his dating habits.

Before this term, the high court had issued just two major decisions on workplace sexual harassment. This term it has four cases, one of which it decided this month: it broadened sexual harassment to include same-sex cases. The three other rulings, expected before July, won't address the First Amendment, but they should end some other disputes over the law. In two of the cases--both scheduled for oral argument this week--the court will determine to what extent employers are liable for harassment to which top management has not been explicitly alerted. In the absence of such a ruling, many companies have assumed they are liable for just about anything and adopted zero-tolerance policies for everyone from the janitor to the CEO.

In one of the two cases, the court will decide whether to hold a Texas school district responsible for the actions of teacher Frank Waldrop. According to court documents, a cop discovered Waldrop having sex with an eighth-grader, who later claimed that the couple had had sex regularly. Her mother sued the school system, even though no school-district employees (except Waldrop, of course) knew about the affair. She argued that the district was liable anyway, on the theory that employers are responsible for an employee's bad acts if his employment status helped the employee commit them.

The other case, Faragher v. City of Boca Raton, involves two municipal lifeguards in the town north of Miami who claimed that they were sexually harassed by their supervisors. A judge found that they had been harassed but that the city should not be held responsible because no officials in city hall knew about the abuse.

The third case before the court, arguably the most important of this term, was brought by a marketing employee at Burlington Industries. Kimberly Ellerth says her boss's boss made constant sexual remarks to her. He allegedly rubbed her knee and told her that her legs were nice but her breasts were too little. She says he once told her, "You know, Kim, I could make your job very hard or very easy at Burlington." Ellerth interpreted this to mean that she would have to have sex with the executive, a vice president, in order to get ahead. But in fact she never slept with him--and she did get promoted. A lower court ruled that Ellerth suffered quid pro quo harassment anyway--without actual retribution. Jones' lawyers have cited this ruling prominently. Burlington appealed, and now the Justices must determine if quid pro quo harassment can include mere threats.

Even after the court rules on these matters, there's likely to be confusion about sexual harassment. The end of the old patriarchal system, in which male bosses behaved as they pleased with female subordinates, has necessarily complicated gender relations in American offices. To sort out who is misbehaving now, the law must rely on subjective notions of power and courtship, sex and sensitivity. The best company policy would allow co-workers their freedom and privacy but punish truly unwanted, harmful behavior. But no one has figured out exactly what that policy should be--least of all the lawyers and judges who keep adding new loops and threads to the complex web of sexual-harassment law.