Prof. Eugene Volokh, UCLA Law School
Wall Street Journal, April 3, 1998, at A18.
What does Wednesday's dismissal of Paula Jones's lawsuit against President Clinton mean for the future of sexual harassment law? And what effect will it have on Kenneth Starr's investigation of the president? In both cases, the answer is almost certainly: Not much. Sexual harassment law will remain hopelessly muddled, and Mr. Starr's investigation will go on.
--- What is sexual harassment? Courts have been struggling with this for 20 years, and still haven't really figured it out. In Jones v. Clinton, Judge Susan Webber Wright held that it isn't sexual harassment for an employer to expose himself indecently to an employee and explicitly ask her for sexual services. Even if Ms. Jones's charges are true, Judge Wright concluded, Mr. Clinton's conduct wasn't "severe" enough to create a "hostile environment." No need for a jury trial about the facts -- as a matter of law, the behavior that Mr. Clinton was charged with isn't harassment.
Not all judges are so forgiving, however. Six weeks ago, the New Jersey Supreme Court held that a single epithet said by a supervisor to a subordinate could be harassment, if a jury so finds. Indecent exposure, of course, is much more serious than a slur -- after all, indecent exposure is a crime, while epithets are not. Presumably, then, if one of the New Jersey justices had sat in Judge Wright's seat, the Jones decision would have gone the other way.
Likewise, two weeks ago the Second U.S. Circuit Court of Appeals held that harassment cases should go to the jury if the legal issues are a close call. "Today, while gender relations in the workplace are rapidly evolving," the court wrote, "a jury made up of a cross-section of our heterogeneous communities provides the appropriate institution for deciding whether borderline situations should be characterized as sexual harassment."
Other appellate courts, on the other hand, set the bar higher. Trial judges, they say, should throw out harassment cases unless the alleged conduct is considerably more severe than it would have to be in the Second Circuit. But even these appellate courts have never decided how "severe" indecent exposure is.
So was Judge Wright right or wrong? As a practical matter, that question will be decided by the Eighth Circuit Court of Appeals, to which Ms. Jones will almost certainly appeal Judge Wright's ruling. But in terms of the law, the terms "right" and "wrong" may make little sense when we're talking about hostile environment harassment decisions. The law is so mushy that it really is a matter of which judge or jury you draw.
Hostile environment harassment law doesn't require evidence of sexual extortion. (Another form of harassment, "quid pro quo harassment," does require such evidence, and Judge Wright was probably right to conclude that Ms. Jones didn't have enough evidence for her quid pro quo harassment claim.) Hostile environment law doesn't require evidence of tangible career damage, or even of psychological injury.
The only test is whether a "reasonable jury" could find that someone's speech or conduct was "severe" enough to create a "hostile, abusive or offensive work environment" for the plaintiff and for a reasonable person, based on the plaintiff's sex, religion, race, national origin, veteran status, age, disability or any of a growing list of other categories. What exactly do "severe," "hostile," "abusive" and "offensive" mean? Nobody knows. Judge Wright's guess is as good as any.
This sort of vague, subjective law is a recipe for injustice. It makes it impossible for both employees and employers to tell what's legal and what's not. Setting aside indecent exposure, is it illegal for people to tell sexually themed jokes, perhaps ones about Bill Clinton, at work? I've read several articles in which employment experts have suggested that Clinton-Lewinsky jokes might indeed qualify as harassment. Is it illegal to put up reproductions of classical paintings depicting nudity? To make sexist political statements in the lunchroom? Nobody knows until the case goes to court.
Vague laws make it easy for the result to turn on a judge's or a jury's prejudices, whether conscious or not. It's always tempting to excuse conduct by those you like, and condemn conduct by those you dislike -- and protean words like "severe" or "abusive" abet this unfortunate impulse.
We tell judges and jurors to set aside their personal views and follow the law, but how can they do so when there's no tangible law to follow? Judge Wright may have decided the case entirely objectively. But the law certainly didn't help her do that.
--- What about the Starr investigation? Does Mr. Clinton's courtroom victory render obstruction-of-justice allegations moot? Clearly not. A strong legal case does not provide a license to lie under oath or interfere with the administration of justice. If Mr. Clinton committed perjury or urged other witnesses to commit perjury, Judge Wright's decision won't scotch any possible prosecution.
Perjury is defined as a false, material statement made under oath. To be "material," a statement in a deposition must touch on a matter that's relevant to the case, or that can lead to discovery of relevant information. Answers to completely tangential questions don't qualify. If you're on trial for speeding and you lie about whether you're wearing a toupee, that's probably not material.
But the test is whether the matter is relevant -- that is, potentially capable of influencing the result of the case, even indirectly. It is not whether the matter actually influences the result. Perjury laws are meant to protect the integrity of the justice system by ensuring truthful testimony; their effect would be weakened if one could get off the hook whenever, in retrospect, it turned out that the lie didn't help. In this case, of course, it's not even clear that it didn't. Suppose Mr. Clinton and other witnesses did lie in their depositions and affidavits in the Jones case. Maybe if the whole truth had come out, Ms. Jones's lawyers could have used it to discover extra evidence strengthening their case -- or maybe not.
In any case, we have a pretty good idea of what perjury is. If Ms. Jones's factual allegations against Mr. Clinton are true -- of course a huge "if" -- then he has perjured himself and suborned perjury. We can then decide if that's the sort of president we want to have.
Meanwhile, of course, we're in the middle of a huge national muddle about the meaning of "sexual harassment." No one -- not employers, not employees, not plaintiffs, not defendants, not judges and not juries -- knows what the term really ends up covering. And no one knows how much he can legally say in the lunchroom about the conduct of our very own president.