Politics Updated 2:27 PM ET April 22, 1998
High Court Hears Case Affecting Jones's Appeal
By James Vicini
WASHINGTON (Reuters) - In a case that may affect Paula Jones's lawsuit against President Clinton, the Supreme Court Wednesday questioned whether sexual harassment occurs when job threats are never carried out.
The nation's highest court appeared troubled by the argument that sexual harassment claims may proceed if the employee resisted a supervisor's unwelcome sexual advances and never suffered any adverse employment consequences.
While Jones's case against the president never came up during the hour-long session, the Supreme Court's ruling by the end of June may affect whether she prevails in her appeal to revive her lawsuit against Clinton, legal experts said.
While the Supreme Court considered the sexual harassment case, the Clinton administration sought to shield the Secret Service from having to testify in independent counsel Kenneth Starr's investigation involving Clinton and former White House intern Monica Lewinsky.
U.S. officials said Justice and Treasury Department lawyers in a sealed motion had asked a U.S. District judge in Washington to recognize for the first time a privilege of "protective function" for Secret Service officers.
Starr has asked the judge to force several uniformed Secret Service officers to testify about what the saw or heard as part of his probe of allegations that Clinton had sex with Lewinsky and conspired to cover it up in the Jones lawsuit.
Clinton and Lewinsky have denied having a sexual relationship. Clinton has denied encouraging her to lie under oath.
The administration won the support of former President George Bush, who said in a letter that he was deeply troubled by requiring Service Service officers to testify.
"What's at stake here ... is the confidence of the president and the discretion of the Secret Service. If that confidence evaporates, the agents (who are) denied proximity cannot properly protect the president," he wrote.
At the Supreme Court, justices seemed skeptical of allowing a sexual harassment lawsuit if there had been only a single threat or if the plaintiff suffered no economic harm -- two issues likely to be raised in Jones's appeal.
In dismissing Jones's lawsuit, U.S. District Judge Susan Webber Wright said the decisive factor was that Jones did not suffer any tangible economic harm as an Arkansas state worker. Jones alleged that Clinton, then governor, exposed himself, asked her for oral sex at a hotel room in 1991 and then said he knew her immediate supervisor. Jones has interpreted the remark as a threat, but the judge said that it was too ambiguous.
Justice Department lawyer Barbara Underwood argued that a supervisor who tells an employee she must submit to a sexual advance to get a promotion alters the terms and conditions of her employment.
But Chief Justice William Rehnquist asked how liability can be imposed if the threat was never carried out. "She doesn't acquiesce and nothing happens .... My sense is there simply isn't any liability," he said.
Even the more liberal justices seemed skeptical. "Is there any precedent ... that makes the threat equal to the reality?" Justice Stephen Breyer asked. "If you say something that doesn't happen, it's actionable?"
Justice Ruth Bader Ginsburg said she could understand how a company may be held liable for a series of threats, but not for a single, unfulfilled threat.
The case involved Kimberly Ellerth, a former employee of Burlington Industries Inc., who was subjected to a pattern of alleged unwelcome sexual advances by her boss in 1993 and 1994. Ellerth, who had been promoted, sued the company.
Rehnquist asked company lawyer James Casey what his understanding of the so-called quid pro quo sexual harassment claim entails.
"This for what," Casey replied. "Sleep with me or I won't promote us is the classic example we all use. And she's not promoted."
The Rutherford Institute, which has arranged for Jones's legal representation, said it has filed a brief with the Supreme Court in the Ellerth case urging the justices to impose a "strict liability" standard for sexual harassment cases.
But several justices pointedly said the issue they agreed to decide does not involve the liability standard for such cases.
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