Many legal commentators and analysts opined from the beginning that President Bill Clinton was fortunate that Paula Jones' sexual harassment lawsuit was brought in Clinton's home state of Arkansas, citing the neighborhood jury pool and judicial system which likely would greet Ms. Jones' claims with an initial skepticism. In view of the April 1 summary dismissal of Ms. Jones' lawsuit, President Clinton also may have been fortunate that her claims were analyzed under eighth circuit and Arkansas law.
Familiarity with the relevant facts alleged in Jones v. Clinton is assumed. Put briefly, Judge Susan Wright of the federal district court in Arkansas held that then-Governor Clinton's one-time proposition of Ms. Jones in a Little Rock hotel suite, when viewed against the lack of evidence that Ms. Jones suffered a tangible job detriment, did not rise to the level of sexual harassment. The court's repeated reference throughout its decision to the lack of "damages" suffered by Ms. Jones suggests that the court simply did not find Ms. Jones' claims to be credible. However, a decision issued by the Second Circuit Court of Appeals less than two weeks before Judge Wright's decision, raises the possibility that the result in Jones v. Clinton may have been different if the alleged events had occurred in a New York hotel suite.
Gallagher v. Delaney - The Second Circuit
In Gallagher v. Delaney, 1998 WL 119614 (2d Cir. 1998), plaintiff sued her former employer and supervisors for sexual harassment and retaliatory discharge, alleging quid pro quo and hostile environ-ment harassment. The second circuit began its analysis with a unique diatribe against the resolution of sexual harassment claims by federal judges, stating that a jury is in a better position to evaluate "whether borderline situations should be characterized as sexual harassment and retaliation."
Today, while gender relations in the workplace are rapidly evolving, and views of what is appropriate behavior are diverse and shifting, 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. The factual issues in this case cannot be effectively settled by a decision of an Article III judge on summary judgment. Whatever the early life of a federal judge, she or he usually lives in a narrow segment of the enormously broad American socio-economic spectrum, generally lacking the current real-life experience required in interpreting subtle sexual dynamics of the workplace based on nuances, subtle perceptions, and implicit communications.
The second circuit noted that the record did not contain evidence of direct physical contact or direct sexual solicitation, or any evidence that defendants directly conditioned plaintiff's job security or terms of employment on her submission to their "signs of affection." However, plaintiff alleged that defendants' desire to engage in sexual encounters with her was implicit in their behavior, and that she considered defendants' compliments, gifts and invitations for dinner and drinks throughout her employment to be sexual harassment. While the second circuit acknowledged that the district court's "perceptions" of plaintiff's claims may have been accurate, it nevertheless reversed the district court's grant of defendants' motion for summary judgment, holding:
A federal judge cannot determinatively say at this stage of the litigation that [plaintiff] was or was not subject to sexual harass-ment and retaliation. The line between the permissible and the impermissible in this case must be drawn by a jury of the [plaintiff's] peers.
The second circuit's holding in Gallagher is arguably limited to cases which present truly debatable issues of fact. See, e.g., Gallagher at * 2 (jury is the appropriate institution to evaluate "borderline situations"); id. at * 3 (decisions by a jury in "debatable cases" are most appropriate); id. at * 8 (evaluation of "ambiguous acts" is an issue for the jury). Although the court did not provide guidance on how to determine whether a particular set of facts constitutes a "borderline" or "debatable" case, or who should make that determination in the first instance, the court's language suggests that summary dismissal of sexual harassment claims may still be appropriate in cases where plaintiff is unable to even make a threshold showing which would enable a trier of fact to conclude ultimately that sexual harassment occurred. In any case, the Gallagher decision illustrates the second circuit's apparent shift away from resolving sexual harassment claims at the summary judgment stage.
Jones v. Clinton - A Second Circuit Analysis
A determination of whether the result in Jones v. Clinton would have been different in the second circuit requires an analysis of Judge Wright's rejection of Ms. Jones' four primary claims: (1) that she was sexually assaulted, (2) that she was subjected to "quid pro quo" sexual harassment, (3) that she was subjected to "hostile environment" sexual harassment, and (4) that Mr. Clinton intentionally inflicted emotional distress on her.
1. Sexual Assault
Judge Wright first rejected Ms. Jones' claim that her case involved a "sexual assault", holding that there was no evidence that there was any "sexual contact" by "forcible compulsion" under Arkansas law. New York's penal code similarly defines sexual abuse in the first degree to require evidence of "sexual contact," i.e., a touching of the victim's sexual or intimate parts directly or through clothing, and of force or threat of force. In her lawsuit, Ms. Jones alleged that Mr. Clinton took her hand and pulled her toward him, at which point she moved away and sat on a sofa located on the other side of the suite. Mr. Clinton then allegedly walked over to her, dropped his pants and asked Ms. Jones if she would kiss his penis, at which point Ms. Jones claimed she jumped off the couch and stated that she had to go back to the registration desk downstairs. Mr. Clinton responded that he did not want to make her do anything she did not want to do.
Judge Wright held that these allegations do not constitute "sexual con-tact" or "forcible compulsion" under Arkansas law. For the same reasons, Ms. Jones allegations- fall short of the similarly defined terms contained in New York's penal code. Therefore, it is likely that the second circuit also would conclude that Ms. Jones was not sexually assaulted.
2. "Quid Pro Quo" Sexual Harassment
Judge Wright next rejected Ms. Jones' contention that she was not required, under eighth circuit law, to prove a tangible job detriment as an element of her quid pro quo claim. Ms. Jones alleged, among other things, that she was discouraged from applying for certain unidentified jobs, and that she was transferred to another position which involved some minor changes in her working conditions. She further alleged that she perceived that Mr. Clinton threatened the terms of her employment when he stated that he would "take care of it" if her boss questioned why she was in Mr. Clinton's hotel suite.
However, Judge Wright held that the mere threat of a tangible job detriment does not constitute "quid pro quo" sexual harassment, and thus Ms. Jones was unable to prove that she suffered a tangible job detriment. Specifically, the court concluded that Ms. Jones' claims, for example, that she felt isolated at work and did not receive flowers on secretaries' day, were too vague and unspecific, and that her allegations amounted only to disruptions and personal inconveniences. The court noted that Ms. Jones received raises after the alleged harassment took place, that she never missed a day of work due to the alleged harassment and continued to travel daily to Mr. Clinton's office without requesting that she be relieved of that duty, that she never filed a formal complaint or told her supervisors of the alleged harassment, and never consulted a psychiatrist or incurred medical bills.
The second circuit has not held plaintiffs to such a stringent standard. Indeed, the second circuit has expressly ruled that a plaintiff is not required to prove that she or he actually suffered a tangible job detriment, but must prove that the alleged harasser "linked tangible job benefits to the acceptance or rejection of sexual advances." Karibian v. Columbia Univ., 14 F.3d 773, 778 (2d Cir. 1994). In other words, the focus is on the alleged harasser's intention, rather than the actual harm, if any, suffered by the plaintiff. In contrast to the court in Jones, the second circuit has rejected a standard which requires a plaintiff to prove actual as opposed to threatened economic loss. In doing so, the second circuit implicitly reversed prior decisions which required such proof.
Although Ms. Jones apparently relied upon the second circuit's holding in Karibian, Judge Wright distinguished that case based upon a misinterpretation of the second circuit's holding. Specifically, Judge Wright stated that Karibian was expressly limited to "submis-sion" cases, i.e., where plaintiff submitted to the harasser's advances, and that that case did not apply to the Jones case where Ms. Jones claimed that she refused the advances. However, the second circuit did not limit its holding in Karibian to "submis-sion" cases. Instead, the court explained that different standards for submission and refusal cases would result in an inequitable situation because evidence of an actual job detriment would likely be available in refusal cases, while evidence of actual economic harm would not be available in submission cases. In both instances, the second circuit noted, plaintiff has still been subjected to sexual harassment.
Accordingly, the second circuit held in Karibian that a plaintiff can state a quid pro quo sexual harassment claim in both refusal and submission cases by proving that the alleged harasser conditioned a term of employment upon the submission by the plaintiff to the harasser's sexual advances, regardless of whether plaintiff rejected the advances and suffered adverse consequenc-es, or whether plaintiff submitted to the advances to avoid the consequences. The second circuit recently reaffirmed this standard in Gallagher.
While the eighth and second circuits have espoused different standards for quid pro quo harassment claims, such a difference may not have been material insofar as the record in Jones still does not demonstrate that Mr. Clinton condi-tioned any of Ms. Jones' terms of employment on her submission to or rejection of his advances. However, in light of the court's reluctance in Gallagher to summarily dismiss borderline cases, Ms. Jones' allegations may have been sufficient to avoid summary judgment in the second circuit.
3. "Hostile Environment" Sexual Harassment
Judge Wright also rejected Ms. Jones' "hostile environment" claim. Specifically the court held that the one-time encounter in the hotel suite, together with Ms. Jones' general perceptions of isolated incidents which occurred while she was still employed, were not sufficiently severe or pervasive to rise to the level of sexual harassment. The court again seemed to rely on the fact that the totality of circumstances belied Ms. Jones' claims that she was "damaged".
The second circuit similarly requires that the "totality of circumstances" be considered when determining whether a workplace is hostile or abusive. However, unlike the court in Jones, the second circuit suggested in Gallagher that it is the jury who should evaluate the totality of circumstanc-es in borderline cases, and not the court. In what was perhaps the shortest portion of its decision, the second circuit noted the difficulty the Supreme Court has had "in precisely defining what will or will not, in the virtually infinite number of varying circum-stances, constitute a violation of the statute." Consequently, the court found that an evaluation of the "ambiguous acts" presented by the evidence is a task that must be reserved for reasonable jurors. Thus, and to the extent Ms. Jones' allegations in contrast to Mr. Clinton's blanket denials constitute a "borderline case", it is likely that the second circuit would hold that a jury, and not a federal district court judge, should ultimately determine whether the conduct alleged by Ms. Jones was sufficient to create a hostile environment.
Finally, Judge Wright rejected Ms. Jones' claim that the alleged conduct was sufficiently extreme and outrageous to constitute a claim under Arkansas state law for the intentional infliction of emotional distress. Noting that Arkansas courts interpret such claims narrowly, the court held that Ms. Jones was not sexually assaulted and that there was no evidence that Mr. Clinton willfully or wantonly caused her to suffer emotional distress. Once again, the court emphasized the lack of evidence that Ms. Jones actually sustained "damages" as a result of the alleged conduct.
Federal and state courts in the second circuit have consistently held that there is "no question in New York that sexual harassment can give rise to a claim for intentional infliction of emotional distress." Courts applying New York law have similarly held plaintiffs to an "extremely high and exacting" standard, and require proof that the conduct in question be so shocking and outrageous to exceed all bounds of decency. While application of these standards has often yielded irreconcilable results, it is likely that a second circuit court would also hold that the alleged conduct in the Jones case is not sufficient to state a claim for the intentional infliction of emotional distress given the lack of corroboration that Ms. Jones truly suffered emotional distress.
Conclusion
The second circuit's recent pronouncement that juries are in the best position to evaluate borderline sexual harassment cases will likely have a widespread effect on future harassment claims, and perhaps discrimination cases in general. However, without further guidance on how to distinguish borderline cases from non-borderline cases, it is unlikely that Gallagher will have an immediate impact on the number of summary judgment motions filed in the second circuit. It is nevertheless interesting to speculate that while many of the underlying conclusions may have been the same if Ms. Jones' case had been analyzed under second circuit law, the second circuit's resolution of who should make those conclusions would likely have meant the difference between summary dismissal and a trial by jury.
We hope you find this newsletter useful and informative. Please feel free to contact Michael Schmidt at (516) 694-8000 if you would like to discuss any of the cases and issues in more detail. Please note that this newsletter is not intended to provide legal advice for any particular matter.