At the Supreme Court arguments on Monday, January 13, in Clinton v. Jones, the justices seemed inclined to delay Paula Jones's sexual harassment suit until the president leaves office, because the president is a busy man. But even if President Clinton is temporarily spared the mortifying task of answering Jones's complaint, his trial in the court of popular opinion has already begun. In the wake of an article by Stuart Taylor in The American Lawyer, there is a growing consensus that not only are Paula Jones's allegations true, but that they also amount to a clear case of legally actionable sexual harassment--a "far more serious" case, Taylor argues, than Anita Hill's accusations against Clarence Thomas.
I'm inclined to believe the broad outlines of Hill's charges against Thomas and of Jones's charges against Clinton; but neither ordeal, I think, should be legally actionable. Hill never claimed at the time that her unpleasant encounters with Clarence Thomas rose to the level of illegal sexual harassment. And it strikes me as even more implausible to claim, as Jones does, that Clinton violated her constitutional rights when he made a pass at her, took no for an answer and reassured her that he meant her no harm. Clinton's conduct, to be sure, suggests a moral recklessness, and coarseness of character, that can only embarrass and discomfit those of us who are trying to sustain our enthusiasm for him. But to claim that the president violated not only Jones's honor, but also her constitutional rights, shows how dramatically our increasingly amorphous conception of sexual harassment has expanded in the past decade. If and when the time comes, a judge could dismiss the Clinton v. Jones case on a motion for summary judgment. The harassment wasn't "severe or pervasive," as current law requires; even an egregious groper gets one bite at the apple.
Here are the facts, as Paula Jones alleges them. On May 18, 1991, while working at the registration desk for the Governor's Quality Management Conference, she says she was approached by Clinton's bodyguard, Trooper Danny Ferguson, who handed her a piece of paper with the number of a hotel suite written on it. "The governor would like to meet with you," he said, and Jones agreed to follow him upstairs. Clinton invited Jones in and made small talk: he asked Jones about her job and volunteered that Jones's supervisor, David Harrington, is "my good friend." According to the complaint, "Clinton then took Jones's hand and pulled her toward him"; Jones removed her hand and retreated. Clinton approached her again. "I love your curves," he said, and he attempted to kiss Jones on the neck; he also "put his hand on Plaintiff's leg and started sliding it toward the hem of Plaintiff's culottes." "What are you doing?" Jones exclaimed, escaping to the end of the sofa. After asking whether Jones was married, "Clinton then approached the sofa and as he sat down he lowered his trousers and underwear exposing his erect penis and asked Jones to `kiss it.'"
Let's assume that Jones's factual allegations are true, as a judge would have to do when faced with a motion to dismiss the case on summary judgment. Are her legal claims convincing? First, Jones says she "should not have been subjected arbitrarily to the fear of losing [her] job or of having to provide sex to the governor as a quid pro quo for keeping the job." Quid pro quo harassment, of course, occurs when submission to sexual demands is made a condition of employment, and by this standard Jones's position seems weak. She concedes that Clinton said, "Well, I don't want to make you do anything you don't want to do" after she rebuffed him; and her career suffered no adverse consequences that can be convincingly tied to Clinton. (Indeed, she received raises on schedule.) Jones says that she was in "constant fear" that Clinton might retaliate against her; but an unwanted advance can't be converted into quid pro quo harassment simply because of the victim's fear.
The most troubling part of Jones's allegations is her claim that Clinton threatened her by reminding her that he knew her boss. "If you get in trouble for leaving work, have Dave call me immediately and I'll take care of it," he supposedly said, adding, "You are smart. Let's keep this between ourselves." The tenor of these remarks is sufficiently opaque that a judge could conceivably let a jury decide what Clinton meant. But when the remarks are viewed in context, it seems clear that Clinton was reassuring Jones, rather than threatening her, and trying to save face after his appalling misjudgment.
Jones's claim that she suffered from "hostile environment" harassment is just as questionable. According to federal regulations, hostile environment harassment involves "unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature," when "such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment." There's a serious factual dispute, first of all, about whether or not Clinton's advances were "unwelcome." When Trooper Ferguson introduced himself to Jones, Michael Isikoff reported in The Washington Post, he conveyed the following message: "The governor said you make his knees knock." This flirty invitation, if Ferguson actually delivered it, makes it hard to believe Jones's claim that she thought visiting Clinton was merely an opportunity to improve her employment prospects. There's no convincing evidence, furthermore, that Jones's ordeal unreasonably interfered with her job performance. Clinton had no direct supervisory authority over her, and she left her job on her own accord.
It's extremely rare for a single sexual advance to be punished as sexual harassment: the Supreme Court has emphasized that harassment, to be actionable, must be "sufficiently severe or pervasive to ... create an abusive working environment." The eeoc's most recent Policy Guidance on Sexual Harassment says that "unless the conduct is quite severe, a single incident or isolated incidents of offensive sexual conduct or remarks generally do not create an abusive environment." The guidelines stress, however, that "the more severe the harassment, the less need to show a repetitive series of incidents," particularly when the harassment is physical. In a 1983 case, for example, a single incident constituted actionable harassment when the defendant grabbed the plaintiff's crotch and talked dirty to her while they were inside a car from which she couldn't easily escape. Jones says she felt "falsely imprisoned" by the armed trooper outside the door; but she was not, in fact, restrained in any way.
Clinton's physical contact with Jones wasn't intimate enough, furthermore, to be clearly forbidden under current law. The eeoc presumes that "the unwelcome, intentional touching of a charging party's intimate body areas is sufficiently offensive to alter the conditions of her working environment." Clinton grasped Jones's hand and legs, and tried to kiss her neck, but he didn't touch her genitals or breasts, which the eeoc defines as "intimate body areas." He did, according to Jones, expose his own "intimate body areas." This display might be challenged as indecent exposure; but it doesn't support a clear case of "hostile environment" harassment.
Up to this point, I've been examining Jones's harassment claim as if she had filed it under title VII of the Civil Rights Act of 1964. But in fact, Jones missed the deadline for filing a title VII claim; instead she accuses Clinton of violating her constitutional right to equal protection of the law. How, precisely, the right to be free from a "hostile working environment," which was invented by Catharine MacKinnon in the 1970s, and read into the civil rights laws by the Supreme Court in 1980, became a constitutional right in the 1990s, is a murky and intellectually unsatisfying tale. No court, however, has found that a single incident of harassment is enough to violate constitutional rights.
To sustain her constitutional claim, Jones has to argue that Clinton acted in his official capacity, "under color of state law." But surely a state governor doesn't act in his official capacity every time he makes a pass at a state employee. It's true that Clinton had a state trooper invite Jones to visit him; but there's no evidence that she was coerced by the trooper in any way. At a recent Supreme Court argument in a case called U.S. v. Lanier, some of the justices expressed skepticism at the claim that a state judge acted "under color of law," even when he coerced court employees to have sex with him, exposed his genitals and tried to retaliate against litigants in child custody cases who rebuffed his sexual assaults. Justice Kennedy asked whether a janitor on the state payroll who raped a woman in a courthouse broom closet would be acting in an official capacity. Justice Ginsburg wondered whether a judge who picked a prisoner out of a lineup and raped her would be more likely to be acting "under color of law." But all these examples look very different from what Clinton is said to have done: inviting to a private room a woman over whom he had no direct supervisory authority, making a pass at her and abashedly accepting her rebuff. If Jones's claims are true, Clinton is guilty of violating standards of common decency, manners and morals, but not the Constitution.
In the Lanier case, the Clinton Justice Department has taken a position that, in addition to being constitutionally implausible, could seriously undermine President Clinton's defense in the Jones case. The administration argues that intentional sexual assaults by state officials violate the due process clause of the Constitution because there is a "right to be free from invasions of bodily integrity that shock the conscience." The appellate court had held that the "shock the conscience" test was far too amorphous to give defendants fair warning of whether or not their conduct was a federal crime; although the marauding judge should be prosecuted for rape and sexual assault, the court held, he could hardly have expected to be prosecuted for violating the Constitution as well. President Clinton's conduct toward Paula Jones may not "shock the conscience" as dramatically as Judge Lanier's conduct toward his employees; but the malleability of the standard is a powerful reason for rejecting it.
Stuart Taylor performed a useful service in pointing to a journalistic double standard: some commentators who were quick to embrace Anita Hill were quick to belittle Paula Jones. Whether the double standard can be explained by class bias or political partisanship, or simply by the different arenas in which the charges arose, is a diverting if not terribly momentous question, to be pondered by media watchdogs of all stripes. But no one is ignoring Clinton v. Jones now that it has reached the Supreme Court; and in the rush to take seriously Jones's plausible factual claims, it would be a grave error if we made the mistake of taking seriously Jones's implausible constitutional claims.
One of the many pathological legacies of the Clarence Thomas hearings is that conduct that not even Anita Hill suggested was actionable at the time has been elevated, in the popular imagination, into a paradigm case of illegal sexual harassment. Now the Jones case threatens to distort our cultural boundaries further still, converting a gross sexual advance, which almost certainly is not illegal under the federal civil rights laws, into a violation of the Constitution itself. In addition to punishing, with ruinous civil damages, a great deal of sexual expression at work that should be protected, this relentless urge to define deviancy up has obscured the core meaning of sexual harassment: gender discrimination that pervades the workplace and makes it harder for an employee to do the job. We will come to regret the increasingly voracious legalization of sex, which threatens to leave no unregulated spaces in which citizens can embarrass themselves in private.
Jeffrey Rosen is legal affairs editor at The New Republic and president and CEO of the National Constitution Center.