by Patricia Ireland, President, and Kim Gandy, Executive Vice President
On April 22, NOW unveiled a national initiative targeting sexual harassment as part of our Women-Friendly Workplace and Campus Campaign. That same day NOW activists demonstrated outside the U.S. Supreme Court, where the justices heard arguments in the Burlington Industries v. Ellerth sexual harassment case. In that case, Kimberly Ellerth charges that she endured a steady stream of sexual harassment from her supervisor's boss, including pats on the buttocks, offensive sexual remarks and the threat that he could make her work life "very hard or very easy." The Seventh Circuit Court of Appeals upheld Ellerth's right to sue, but Burlington Industries is asking the Supreme Court to reverse that decision and rule that some tangible job detriment is required. They assert that Ellerth suffered no such harm. (See "Supreme Court Answers Sexual Harassment Questions.")
NOW activists and others demonstrate in front of the Supreme Court before arguments were heard in the sexual harassment case, Ellerth v. Burlington Industries. Photo by Lisa-Bennet Haigney.
NOW Drafts Initiative
No boss should get away with making unwelcome sexual advances and threatening a woman's job status, even if he doesn't actually carry out his threats when she refuses. Sexual misconduct hurts women in the workplace; the boss who paws, propositions and warns of retaliation takes away a woman's dignity . . . even if he doesn't take away her job. He denies her respect . . . even if he doesn't deny her a promotion or a raise.
NOW's leaders and activists across the country feel strongly that we must take action in light of recent high-profile harassment cases. Women have reported to us that wide-spread news coverage of Jones v. Clinton has led some men to think they're entitled to "one free feel" and that demeaning sexual remarks are no problem under the sexual harassment law.
That is why NOW's national board developed the Initiative to Stop Sexual Harassment, a ten-point action plan targeting government and business leaders. They used to say that every dog gets one free bite, but that does not apply to men in the workplace—and we intend to make sure employers get that message loud and clear: Zero tolerance is what women have a right to expect. We will make whatever changes are necessary in the laws and regulations to make sure that those laws have teeth.
As part of our Initiative to Stop Sexual Harassment, we call on President Clinton, Senate Majority Leader Trent Lott and Speaker of the House Newt Gingrich, through executive orders, EEOC regulations and new laws, to make clear that sexual misconduct does not have to rise to the level of criminal rape or assault to violate Title VII's prohibition against hostile environment harassment.
And, if necessary, after the Supreme Court rules in Burlington Industries v. Ellerth, we will call on the administration to prioritize, and the Congress to pass, legislation making it illegal quid pro quo harassment even if a boss doesn't carry out threatened job consequences when a woman refuses his advances.
NOW President Patricia Ireland responds to questions about NOW's Initiative to Stop Sexual Harassment at a news conference after arguments in the Ellerth v. Burlington Industries case. Photo byLisa Bennett-Haigney.
Jones v. Clinton
Like the trial judge in Ellerth, Federal District Court Judge Susan Webber Wright held in Jones v. Clinton that tangible job detriment is an essential element of a quid pro quo harassment claim. The evidence offered by Paula Jones' lawyers failed to convince the judge that Jones had suffered job detriment; in essence Judge Wright told Jones' lawyers they could not make a federal case out of her not receiving flowers on Secretary's Day.
Even if the Supreme Court rules in favor of Kimberly Ellerth, it may not make a difference in Paula Jones' case. Judge Wright also found that Clinton's alleged statements did not constitute a threat that clearly conditioned job benefits or detriments on compliance with sexual demands. As the judge noted, even Jones acknowledged she had to "read between the lines" to infer quid pro quo harassment.
Some have read Judge Wright's opinion to require that sexual misconduct must rise to the level of criminal rape or assault to violate Title VII's prohibition against hostile environment harassment. If that was Judge Wright's ruling, it would require greater harm than any woman should have to endure without recourse.
However, the overwhelming consensus of NOW's chapters, states and national board was not to take the unusual step of filing an amicus brief in the circuit court in the Jones case.
We do not intend to encourage higher courts to consider and possibly create legal precedent that would injure everyday women in the workplace, based on the allegations and evidence of this highly politically-charged case. The fact that partisan politics are so much a part of this case make it an imperfect vehicle at best to use as a test case to advance important legal principles. In plain English, hard cases make bad law. That maxim refers to situations in which a judge or jury may be so moved by the specific allegations, the politics or some other aspect of the case, that they end up making bad law by molding the law to reach their desired result.
We are also disinclined to work with the right wing organizations and individuals advancing Jones' cause, who themselves have a longstanding political interest in undermining our movement to strengthen women's rights and weakening the laws that protect those rights. We believe their legal judgments are not made in the best interest of women in the workforce or even Paula Jones, but rather in the interest of advancing their own political agenda.
Where were Susan Carpenter McMillan and the other women's rights opponents who surround Paula Jones in the Ellerth case being considered right now in the Supreme Court? Where were they in the Oncale sexual harassment case decided earlier this year? Where were they during Tailhook and Packwood — when the allegations were virtually uncntroverted? The answer is clear: They care nothing for women's rights and even less about the issue of sexual harassment which we have worked for so many years to advance.
Paula Jones has surrounded herself with a phalanx of politically-motivated lawyers and spokespeople who are opponents of the women's rights movement. Whether she is part of them or just a pawn, we may never know. But we have been on the receiving end of their lies and misrepresentations, and we have no interest in working with them or advancing their cause.
We will continue our Women-Friendly Workplace and Campus Campaign to promote the rights of women and to urge employers and schools to establish and strictly enforce rules against sexual harassment and discrimination.
NOW asks that all of our members participate in this campaign. Please see our Initiative, Women-Friendly Workplace and Campus Campaign Summary and Employer's Pledge. Make copies of these documents, distribute them, encourage local businesses to come on board, contact your congressmembers to ask that they support the initiative and get involved with your local chapter to organize to stop sexual harassment.
For more information and to find a local chapter, see our web site at http://www.now.org/ or call the National Action Center at 202-331-0066.