In the case heard in the U.S. Supreme Court today, 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 her day in court. Burlington Industries is asking the Supreme Court to reverse that decision and rule that some tangible job detriment is required and that Ellerth suffered no such harm.
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. And some have read Judge Wright's opinion to say that sexual misconduct has to rise to the level of criminal rape or assault to violate Title VII's prohibition against hostile environment harassment.
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.
Today we announce NOW's Initiative To Stop Sexual Harassment, a ten-point action plan targeting government and business leaders to end harassment as part of our Women-Friendly Workplace and Campus Campaign. 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. And we intend to make whatever changes are necessary in the laws and regulations to make sure that there are teeth in those laws.
However, the overwhelming consensus of our chapters, states and national board is 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 a politically-charged case. The fact that this case is so highly politically charged and that such a broad national consensus exists surrounding the allegations, make it an imperfect case, 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 disreputable right wing organizations and individuals advancing her 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 Susan Carpenter McMillan and the other women's rights opponents who surround Paula Jones are using this case to advance their own political agendas. Where are they in today's Ellerth case? 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 uncontroverted? 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.
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.
We will continue our Women-Friendly Workplace and Campus Campaign to promote the rights of employed women and to urge employers to establish and strictly enforce rules against sexual harassment and discrimination.
Link to this release at http://www.now.org/press/04-98/04-22-98.html