Bad case, bad law

March 12, 1998|By Linda Chavez

AS the Paula Corbin Jones case enters another critical juncture this week, conservatives would do well to remember the old adage: Be careful what you wish for, you just might get it.

Tomorrow, Ms. Jones' attorneys are to argue against a motion to dismiss the case. But a victory for Ms. Jones in this instance is by no means a clear triumph for conservative legal theory -- in fact, far from it.

From the beginning, Ms. Jones' claims have embraced an interpretation of sexual harassment law that is problematic at best. And in their zeal to embarrass -- even unseat -- President Clinton, too many conservatives have put politics before principle. It's a dangerous course that could come back to haunt all employers.

First, let me make it clear that I believe Ms. Jones is telling the truth about what happened to her at the Excelsior Hotel in 1991, when she worked for the state of Arkansas and Mr. Clinton was governor. The actions she describes are gross and disgusting and make Mr. Clinton unfit to be president. Nonetheless, I don't believe that what Ms. Jones alleges to have occurred constitutes sexual harassment, and I fear that if she prevails in court, it could prove a disaster for employers in future cases.

An unusual case

Ms. Jones' suit is not a garden-variety sexual harassment case. Because Ms. Jones waited so long to make her complaint against Mr. Clinton, she missed the filing date to make a claim under Title VII of the 1964 Civil Rights Act, which makes it illegal to discriminate against an employee because of her sex.

Instead, Ms. Jones claims that Mr. Clinton violated her constitutional rights when he lured her to his hotel room, made an indecent proposal to her, touched her and then, when she refused his advances, reminded her that he was good friends with her supervisor.

Ms. Jones also claims that she was in fear for her state job after the incident, and that she received smaller raises than she was otherwise entitled to as a result of rebuffing Mr. Clinton.

Ms. Jones is basing her claim that her constitutional rights were violated on the theory that both Mr. Clinton and the state trooper who accompanied her to the hotel room were acting in their official capacities "under color of law."

If Ms. Jones prevails, this would make it easier for plaintiffs to sue government officials -- not just for breaking specific laws but for breaching plaintiffs' constitutional rights -- potentially turning many simple tort claims into constitutional violations.

The other worrisome outcome in a Paula Jones victory, from a conservative legal perspective, is that it would substantially lower the threshold for plaintiffs to prove actual harm arising in harassment cases. Ms. Jones didn't lose her job after she rebuffed Mr. Clinton. In fact, she received regular raises -- although lower than she felt she deserved, according to her attorneys.

If the defendant in this case were anyone other than Mr. Clinton, it's hard to imagine conservatives leaping for joy that an 'N employer could be found guilty of sexual harassment based on a single sexual advance -- no matter how inappropriate -- that did not result in the plaintiff's losing her job or suffering other harmful effects to her career.

Linda Chavez is a syndicated columnist.

Pub Date: 3/12/98

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