Be careful what you wish for ...
AS THE Paula Jones case enters another critical juncture later this week, conservatives would do well to remember the old adage: Be careful what you wish for, you just might get it. On Friday, Jones' lawyers will argue against a pending motion to dismiss the case. But a victory for Paula Jones in this instance is by no means a clear triumph for conservative legal theory -- in fact, far from it.
From the beginning, Jones' claims have embraced an interpretation of sexual harassment law that is problematic at best. And in their zeal to embarrass -- even unseat -- the president, too many conservatives have put politics before principle. It's a dangerous course that could come back to haunt all employers, not just the randy ex-governor of Arkansas.
First, let me make it clear that I believe Paula Jones is telling the truth about what happened to her at the Excelsior Hotel in 1991, when she worked for the state of Arkansas and Bill Clinton was governor. The actions she describes are gross and disgusting and, I think, make Bill Clinton unfit to be president. Nonetheless, I don't believe that what Jones alleges to have occurred constitutes sexual harassment, and I fear that if she prevails in court, it could prove a disaster for employers in future cases.
Jones' suit is not a garden-variety sexual harassment case. Because Jones waited so long to make her complaint against Bill Clinton, she missed the filing date to make a claim under Title VII of the 1964 Civil Rights Act, which makes it illegal to discriminate against an employee because of her sex. Instead, Jones claims that Bill Clinton violated her constitutional rights when he lured her to his hotel room, made an indecent proposal to her, touched her and then, when she refused his advances, reminded her that he was good friends with her immediate supervisor. Jones also claims that she was in fear for her state job after the incident and that she received smaller raises than she was otherwise entitled to as a result of rebuffing Clinton.
Jones is basing her claim that her constitutional rights were violated on the theory that both Clinton and the state trooper who accompanied her to the hotel room were acting in their official capacities "under color of law." If Jones prevails, this will make it easier for plaintiffs to sue government officials -- not just for breaking specific laws but for breaching plaintiffs' constitutional rights -- potentially turning many simple tort claims into constitutional violations.
The other worrisome outcome in a Paula Jones victory, from a conservative legal perspective, is that it would substantially lower the threshold for plaintiffs to prove actual harm arising in harassment cases. Paula Jones didn't lose her job after she rebuffed Bill Clinton. In fact, she received regular raises -- although lower than she felt she deserved, according to her lawyers.
If the defendant in this case were anyone other than Bill Clinton, it's hard to imagine conservatives leaping for joy that an employer could be found guilty of sexual harassment based on a single sexual advance -- no matter how inappropriate -- that did not result in the plaintiff's losing her job or suffering other harmful effects to her career. If this standard were to be accepted as law, it would open the door to countless frivolous complaints and make the workplace even more treacherous than it already is.
No doubt, many conservatives are motivated to take Paula Jones' side because they
are truly horrified at what she says Bill Clinton did to her seven years ago. But their
sense of moral outrage should not blind them to the dangers of embracing legal
theories that could harm many innocent employers in the
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