An executive invites an employee to his hotel room, and makes a crude verbal pass at her. She says no and leaves, then complains of his behavior. If he was an employee of mine, I would have a serious talk with him, warning him that his behavior to another employee was gross and inappropriate. If it recurred, I would fire him.
Same scenario, except that he exposes himself. I would be inclined to fire him on the first go-round.
But there is a substantial difference between warning or firing an employee, and holding him--or the company he works for-- liable for millions of dollars in damages for a single gross or idiotic act. The real question, which tends to get buried in our moralistic or political response to the Paula Jones allegations, is whether the President's behavior caused the damage claimed by Paula Jones. Judge Susan Webber Wright held, as a matter of law, that it could not have.
On a summary judgement motion, the judge assumes the truth of the plaintiff's allegations. Therefore, Judge Wright found that even if everything Paula Jones said was true, her complaint failed to state a cause of action under the applicable law.
I don't condone the President's behavior. I didn't vote for him, think he is not Presidential material and stand by my call for his resignation on the grounds that suborned perjury from Monica Lewinsky. But the Jones case must be analyzed both in the context of sexual harassment law and with an eye to the larger question: what kind of society do we want to have?
Sexual harassment law starts from the proposition that women are harmed, placed in an unequal position, by certain speech and behavior towards them in the workplace. This basic proposition is one that few people would debate today. But the offending behavior must be seen on a spectrum, ranging from action to speech. Harassment cases have included criminal actions such as sexual assault, invasions of privacy, and classic torts of touching without consent. They have also included pure speech, where that speech is aimed at disrupting the work environment of the complaining individual: epithets, the display of sexual images, and the like.
Laws intended to promote equality create inequality if misapplied. Any legal scheme-- sexual, racial, or otherwise--intended to remove or prevent obstacles to the fair treatment of a constitutionally protected group should, from a social standpoint, also treat that group as equal in every other way. The best scheme is one in which we are all encouraged to be autonomous, individually responsible actors in our contacts with one another, and our constitutional legislation and jurisprudence should be fashioned with this goal in mind.
Sexual harassment laws fail this test if they are applied at the speech end of the spectrum without placing any burden on the victim to complain about the speech. (Obviously, no-one should be obligated under any legal scheme to resist physical violence as a prerequisite to punishment of the offender.) We may still be in a transition period where, depending on the case, there is some validity to the statement, "I was afraid to say anything." For the future, the social rules best calculated to deal with sexual harassment issues in court would be something like, "everyone should complain of unwelcome sexual speech without fear of retribution. If retribution occurs, liability will be substantial."
Without the imposition of such a rule, sexual harassment law fails to distinguish between speech intended to harm, and misguided speech uttered with the assumption that the recipient consents to it. Only by requiring the listener to say something, to make some attempt to put the speaker on notice, can we avoid penalizing people for speech they did not know was unwelcome. Conversely, if we continue a legal scheme in which people are punished for such speech, we are effectively asking the court system to serve as the morality police, applying the most conservative imaginable mores to every workplace. A rule that "I will notify you if you are upsetting me," by contrast, allows a greater diversity of workplaces, including ones in which men and women are outspoken with one another in an atmosphere of complete equality, and no-one is harmed.
Most people would agree that morality and law should not be coextensive; not all boorish, obnoxious or unethical behavior should be grounds for multi-million dollar judgments. But a whole legal industry exists predicated on the theory that individuals are not to be held responsible for their own actions, and everyone else is. My cousin the personal injury attorney boasted of receiving a settlement in a case in which his client, while drunk, collided with a parked bulldozer. The claim was that the municipality parked the bulldozer in a negligent way where intoxicated people might crash into it. There are lawyers out there who are eager to apply this scheme of complete individual irresponsibility to sexual harassment law, because these are high-visibility, big ticket cases in today's environment.
The end result is to confirm a double standard, under which women are an inferior class, unable to speak up for themselves and therefore not expected to, and in need of the protection of a court. In most other legal schemes, we do not hold people responsible for actions which they did not know to be harmful or even unwelcome to someone else. A social and eventually a legal rule encouraging an offended individual to say, "I don't like those kinds of jokes," or "I don't appreciate those comments," would be a good thing. Once a speaker--himself an autonomous individual, held responsible for his choices--is put on notice that his speech is unwelcome, he is obligated to stop or face the consequences.
Another prerequisite of every other type of civil legal action is that the plaintiff be able to show damage. It is not enough that I negligently left a large hole in the sidewalk in front of my house, and you fell into it; you have to show that you were damaged by the fall. Personal injury lawyers have a code phrase, "soft tissue damage," which translates to "the plaintiff was not harmed, but we're suing anyway." The despicable modern trend towards treating us all as extremely fragile vessels, likely to lose sleep, suffer extreme psychological trauma, and "loss of consortium", as a result of the merest word, severely undercuts equality when applied in sexual harassment cases. Not every harm inflicted by words should be redressed by a legal remedy. I get email every month in response to things I have written insulting me personally in extreme language, but as a grown up in the world, I can take it. Lawyers, however, are in the business of inventing ways to obtain money in punishment of such words, and without regard to the social consequences.
Let's place the Jones case in this context. Governor Clinton's behavior was obnoxious and inappropriate. He made a gross sexual overture to a state employee, for which he appropriately should be criticized and held up to shame. She said no, and there were no consequences-- he didn't renew the approach, her work environment didn't change, she wasn't fired or demoted. The imbalance created by his action was immediately redressed by hers; the moment she said no and left, the incident was over. Only in the fantasy world of the attorneys was there any lasting harm to redress in a court.