Keep in mind that the outcome of the Jones v. Clinton case turned not so much on the behavior alleged, but on the fact that Ms. Jones could establish no causal nexus between the alleged sexual solicitation -- which remains hotly disputed -- and any adverse employment action resulting in damage to her career. A close reading of the briefs filed by both sides shows that Ms. Jones received pay and merit increases following the alleged encounter with the Governor. Moreover, she had no facts to establish that the accused was in any way involved with decisions relating to her employment after the episode. As such, the court found no quid pro quo harassment.
A case now before the Supreme Court, Burlington Industries v. Ellerth, 123 F.3d 490 (7th Cir. 1997), cert. granted, No. 97-569, __U.S.__, 1998 WL 21891 (Jan. 23, 1998), deals squarely with the "adverse consequences" issue presented in Jones. In Ellerth, the United States Supreme Court will decide whether a claim of quid quo harassment may be brought by a female employee who was continuously told her job was conditioned on compliance with sexual demands, but was nonetheless promoted. If the High Court holds that Ellerth may state a claim of quid pro quo harassment even though she suffered no adverse employment action as a result of her refusing sexual demands, the complexion of the Jones v. Clinton decision may well change.
Ms. Jones' hostile environment claim also failed -- not because of the alleged conduct -- but because of its perceived lack of effect on Ms. Jones. Jones did not miss work after the alleged episode, required no therapy of any kind and appeared otherwise undamaged. The court thus reasoned that, even if true, the alleged conduct did not sufficiently interfere with Jones' work performance to give rise to an actionable claim. Other courts may not so readily dispose of such a case. Indeed, the Second Circuit recently cautioned against the use of summary judgment in sexual harassment cases, holding that "a jury made up of a cross-section of our heterogenous communities provides the appropriate institution for deciding whether borderline situations should be characterized as sexual harassment and retaliation." Gallagher v. Delaney, __F.3d__, 1998 WL 119614 (2d Cir., March 19, 1998).
At bottom, the deficiency of Paula Jones' claim was not in the conduct alleged, but in the circumstances surrounding her individual complaint. She waited several years to raise any formal complaint, suffered no tangible job detriment, had two friendly encounters with Clinton following the alleged solicitation, evidenced no debilitating effects and had no proof of retaliatory conduct by Clinton or any other state worker.
But these legal technicalities should not be confused with condoning the conduct alleged by Paula Jones. A single incident on par with that alleged by Jones would be sufficient to terminate virtually any worker, whether employed at-will or pursuant to an employment contract requiring "just cause" for termination. Moreover, if the allegations appeared true, an employer could easily expect to get to a jury as well as a liability finding, particularly in the face of a prompt complaint and adverse employment action traceable to the incident.
No, Jones v. Clinton is not a "free pass to harass." Rather, it should be a wake up call to employers that sexual harassment remains on everyone's radar screen.