What Can the Boss Get Away With

June 1, 1998
As the claim goes, Paula Corbin Jones, an Arkansas state worker, was summoned to a room at the Excelsior Hotel in Little Rock on May 8, 1991, by then Arkansas Governor Bill Clinton-the highest-ranking officer in the state's organizational hierarchy, and her supervisor's boss. But the meeting, she alleges, wasn't workplace related at all. Rather, Jones testified later that during the encounter, Clinton not only touched her inappropriately but also exposed himself, asked her if she'd perform a sexual favor for him and, when Jones rebuffed his advances, asked her not to tell anyone.

Although Jones did tell friends and family members of the alleged incident in the days following the encounter and feared losing her job, she didn't formally complain to someone else in power at her former employer, the Arkansas Industrial Development Commission (AIDC, now known as the Arkansas Economic Development Commission (AEDC)) based in Little Rock. During the 19 months that Jones continued to work for the AIDC, she admits she suffered no direct repercussions of the alleged incident. She received no poor performance evaluations. She wasn't "held back" in job status. She didn't take any days off for emotional distress and she sought no psychological help for the emotional damage it caused her. In fact, she received pay raises.

Jones waited three years after the incident to make a formal complaint. She missed the 180-day deadline for filing under Title VII of the Civil Rights Act of 1964 for sexual harassment. She brought her formal complaint against Clinton alleging an equal-protection violation of the Fifth and Fourteenth Amendments of the U.S. Constitution and another claim under Arkansas' state law tort claim of "outrage," which in some states such as New York is called an "intentional infliction of emotional distress." Jones' claim isn't based on sexual-harassment law, but is based on the alleged incident being so outrageous that it's intolerable in the civilized community.

Meanwhile, Clinton has said that he doesn't recall a meeting with Jones, as she's described, and has denied doing anything improper.

Jones recently lost another step in seeing her case go to court. On April 1, Federal Judge Susan Webber Wright refused to let Jones' case go forward. However, Jones is now appealing that decision. While the political sparks continue to fly between the White House and Long Beach, California, where Jones now resides, the politically charged case even though it's not technically a sexual- harassment case-places a big question mark over what sexual harassment is, what it isn't and what the implications are for employers in terms of policies and procedures surrounding workplace conduct and misconduct, and what bosses can legally get away with.

Bad, but not bad enough?
Technically speaking, sexual harassment is a form of sexual discrimination as described in Title VII, and later defined by the Equal Employment Opportunity Commission's (EEOC) guidelines concerning sexual harassment in 1980. There are two types of sexual harassment: quid pro quo (this for that) and the "hostile environment" kind. Quid pro quo harassment is defined as unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when submission to or rejection of such conduct is made either explicitly or implicitly a term or condition of a person's job, pay or career, or submission to or rejection of such conduct by a person is used as a basis for career or employment decisions affecting that person.

The "hostile environment" kind is defined as such conduct that has the purpose or effect of unreasonably interfering with an individual's work performance or creates an intimidating, hostile or offensive work environment. This definition emphasizes that workplace conduct, to be actionable as "abusive" environment harassment, need not result in concrete psychological harm to the victim, but rather need only be so severe or pervasive that a reasonable person would perceive, and the victim does perceive, the work environment as hostile or abusive. The courts usually interpret pervasive and severe by considering the frequency and severity of the behavior, whether the behavior is physically threatening or humiliating, and whether the behavior has unreasonably interfered with the alleged victim's work performance.

In dismissing Jones's lawsuit, Wright, a federal district judge in Little Rock, Arkansas, said there wasn't sufficient evidence to merit Jones's allegations that Clinton's behavior was "outrageous" under Arkansas state law and that he sexually harassed her under federal law. "It doesn't mean [that Judge Wright] is saying [that Clinton's alleged conduct] isn't outrageous," says Amy Oppenheimer, an attorney, mediator and administrative law judge in Berkeley, California, who's also an expert in sexual-harassment discrimination cases and is often called upon to be an expert witness in such cases. "She's just saying it didn't meet the standards, which are pretty high under that legal theory."

In her ruling, Wright also wrote that: "While the court will certainly agree that plaintiff's allegations describe offensive conduct, the court1/4has found that the governor's alleged conduct does not constitute sexual assault." Wright also rejected Jones's claims of quid pro quo de-mands and a hostile work environment. She said that the facts didn't demonstrate conduct that was so severe or pervasive that it altered Jones' employment or created an abusive work environment. Jones, in Judge Wright's eyes, didn't meet the legal letter of the law to prove her case.

Although Jones has filed an appeal, she appears to also be losing ground with some advocacy groups, such as the National Organization for Women (NOW) in Washington D.C., which announced in late April that it won't submit a friend of the court brief supporting her appeal. But in the court of public opinion, especially employer opinion, there's a completely different sentiment. Perhaps the biggest question is: Can one incident, however raunchy or unprofessional, constitute sexual harassment?

Conflicting opinions and laws surrounding sexual harassment.
"If your boss exposed himself, it wouldn't matter if you got a promotion or not," says Laurel Ditson, VP human resources for the Visiting Nurse Corp. of Colorado, based in Denver. "Your boss would probably at least be reprimanded, if not discharged. I think women's groups have lost sight of the legal precedent being set here. It could set us back a long way as far as what a boss can get away with and the balance of power in the corner office, not just the Oval Office. If the players were[n't famous], I think the reaction would be very different."

Gayle Baugh, assistant professor of management at the University of West Florida in Pensacola, agrees with this viewpoint. "In my estimation, if Bill Clinton actually did what Paula Jones reports, he's guilty of sexual harassment," she says. "If it were any other person, that individual would probably already be determined to be guilty of sexual harassment. The requirement that Ms. Jones must prove some kind of loss seems unreasonable."

Baugh may be right. In fact, the U.S. Supreme Court justices are expected to deliver a ruling this month on a case that might clarify this fuzzy area of sexual harassment law-whether a supervisor's re-quest for sex from a subordinate violates the law even if he or she ignores the boss's request, and suffers no tangible workplace repercussions because of it. The case, Burlington Industries Inc. v. Ellerth, involves Kimberly Ellerth, a former marketing assistant who allegedly spurned the continual advances of her supervisor, a corporate vice president. However, Ellerth suffered no tangible job loss for refusing to submit to sexual re-quests. In fact, she received a promotion.

James Casey, arguing the appeal for Burlington Industries on April 22, said that when an employee hasn't submitted and yet suffers no adverse consequences, a company should be liable only if it actually knew or should have known of the misconduct.

Justice John Paul Stevens objected that under such a rule, "the law favors submission, because an employee who acquiesced would have a legal remedy under the quid pro quo theory of harassment but an employee who resisted would have recourse only by proving negligence on the part of the company."

The U.S. Justice Department is supporting Ellerth's side in this case saying that if an employee believes a threat is genuine, and the supervisor has the authority to carry it out, she has a case. In stating the Justice Department's viewpoint, Deputy Solicitor General Barbara Underwood told the justices that a threat, even if empty, has a coercive and detrimental effect on a worker.

While the nation awaits the court's decision on this legal point, one still wonders if a single incident of sexual misconduct without adverse job consequences amounts to sexual harassment under the present hostile environment standard.

"The majority of courts lean toward saying that one incident isn't enough, that there must be a pattern to reach the 'severe and pervasive' level, although there are notable exceptions," says Paul Salvatore, a labor and employment law partner at Proskauer Rose LLP, based in New York City, who is widely quoted on matters concerning sexual harassment. "One joke, inadvertent touching, active teasing, etc. clearly wouldn't be enough to state a claim. However, my view is that the President's alleged actions came very close to being sufficient in and of themselves, to state such a claim, given their alleged severity."

Judge Oppenheimer agrees. "You can have one incident that's severe enough to be sexual harassment," she says. "How-ever, the fact that something would be considered sexual harassment under [a firm's] work rules, doesn't always mean you can bring-and win-a valid actionable claim for sexual harassment in a courtroom. These cases are intensely factual. If you change one fact, there might be liability and there might not. This was a close case. I thought that [Judge Wright's] decision was proper, and it was carefully reasoned. This was a case where either way, it could be considered right."

Although there's much about this particular case that's questionable-politically and legally-does it cause HR professionals to wonder about how to write or rewrite their own sexual harassment policies? According to HR and legal experts, it shouldn't. The key words are still: zero tolerance.

Does Jones v. Clinton muddy the water?
"I don't think employers are more confused than they were before," says Patricia Ross, president of Personnel Strategies, a government compliance and employee relations specialty firm in Avon, Ohio. "This is an area in which most employers chose to maintain a no-tolerance policy."

Indeed, a Workforce survey in December 1996 showed that 93 percent of those surveyed had a zero-tolerance policy prohibiting sexual harassment at their company. However, 84 percent of those surveyed said they still had reports of sexual harassment and 64 percent still got reports despite sexual harassment prevention training.

In fact, Ross says employers shouldn't change their zero-tolerance policies because of the Jones v. Clinton case. They should still encourage employees to come forward if they feel they've been harassed or have witnessed what they think might be harassment toward someone else. According to Linda Timcho, a personnel officer at the University of Hawaii in Honolulu, you should review whether you have the following in place, especially with regard to problems of sexual harassment from senior managers:

  1. Does your company have a sexual- harassment policy which has been made available to all employees that clearly defines what constitutes sexual harassment and the disciplinary procedures for non-compliance with the policy?

  2. Do you provide training so all of your employees are made aware of what constitutes sexual harassment and your company policies and procedures for handling a complaint?

  3. Do you make complainants aware of all options available regarding the filing of a complaint?

  4. Do you conduct timely, impartial investigations of incidents?

  5. If the person accused of sexual harassment has been provided this material just as all other company employees have, and he or she is deemed to have not complied with the policy, you must follow the procedures as indicated in your policy. Adds Ross: "If a company has a policy that defines harassment, states prohibition, and explains how to come forward, then it should feel comfortable it's covered."

As Oppenheimer states: "Employers shouldn't take this decision to mean that everybody gets a free grab or that they can't discipline their employees for this kind of conduct. They can and they should."

Adds Salvatore of Proskauer Rose: "HR managers should make clear that the Jones decision does not, in any way, diminish their organizations' anti-harassment policies."

He says most firms he works with have strong anti-harassment policies (forbidding sexual and every other form of harassment) that go well beyond the legal definitions and requirements. These policies state, among other things, that the employer wants to maintain a comfortable working environment for all and encourages individuals who feel in any way aggrieved by any conduct or statements in the workplace, to come forward to HR so the situation can be rectified.

And that may be your biggest hurdle-getting employees to come to HR with their concerns, before they file a lawsuit. For whatever reason, Paula Jones didn't go to HR first. And, perhaps there was nothing human re-sources at the AIDC could have done to have helped her with her grievance. However, your job as an HR professional is to make sure both employees and managers are aware of their responsibilities and liabilities. With prevention strategies, you'll likely avert the kind of incident Jones alleges. And no one will have to fight for their day in court.

Workforce, June 1998, Vol. 77, No. 6, pp. 38-44.