Tough enough?

What a difference a week makes.
Seven days ago, as the Dallas Observer went to press, Paula Jones' legal team was worrying about how to pick a sympathetic jury; this week, they're worrying about whether their client has the stamina for a last-ditch appeal.

On April Fools' Day, federal District Judge Susan Webber Wright threw out Paula Corbin Jones' civil suit against President Clinton. In a 39-page written opinion, Judge Wright ruled that Jones had failed to prove her two sexual harassment claims. Specifically, with regard to Jones' "quid pro quo" harassment theory, Judge Wright ruled that Jones had to suffer actual harm to her job--being denied promotions or raises, for example--in order to make such a claim, and that she had failed to prove such harm. With regard to Jones' "hostile environment" claim, Judge Wright ruled that even if then-Governor Clinton did drop trou and ask Jones, his subordinate, to "kiss it," that incident alone was not "severe or pervasive" enough to create a hostile work environment.

The Jones team has until May 1 to file a notice of appeal with the 8th Circuit Court of Appeals in St. Louis.

But what few commentators have noted is that two cases now before the U.S. Supreme Court could well seal Jones' fate before that appeal is ever heard.

Last month, the high court heard arguments in the first of these two cases, Faragher v. City of Boca Raton. And on April 22, the Supreme Court will hear arguments in the second case, Burlington Industries, Inc. v. Ellerth.

In Burlington Industries, the Supreme Court granted cert on the precise question of "whether a claim of quid pro quo sexual harassment may be stated...where the plaintiff employee has neither submitted to the sexual advances of the alleged harasser nor suffered any tangible effects on the compensation, terms, conditions or privileges of employment as a consequence of a refusal to submit to those advances." The case arose after Kimberly Ellerth, who worked in marketing for Burlington Industries, was harassed by her supervisor's boss, who "intimated that [Ellerth] would not be promoted or otherwise do well...unless she submitted to his advances." Although Ellerth did not in fact suffer the sort of "tangible job detriment" Judge Wright required Paula Jones to show, a majority of the Seventh Circuit nevertheless found that she had suffered sexual harassment.

If the Supreme Court overturns the Seventh Circuit's ruling, Paula Jones' appeal on that ground is gone.

The Rutherford Institute--the conservative legal think tank partly bankrolling Jones' suit--clearly believes, however, that if the Supreme Court affirms the Seventh Circuit's ruling, Jones has strong grounds for an appeal. Indeed, the Rutherford Institute has gone so far as to file a friend-of-the-court brief with the high court, arguing for Kimberly Ellerth.

But a number of observers say it is less than clear that a decision for Ellerth will automatically help Jones. Speaking on background, one lawyer involved in the Supreme Court case says that even if the Seventh Circuit's decision is upheld, she believes Jones' case can still be thrown out on the facts. Her reasoning is similar to Judge Wright's; in Burlington, Judge Wright noted there was a specific threat to harm the plaintiff in her job, even if that threat was not carried out. In Jones v. Clinton, Governor Clinton's threat was not so explicit: "You are smart," Jones alleges Clinton said, "Let's keep this between ourselves."

For this reason, many legal scholars believe that Jones' best basis for appeal is Judge Wright's ruling that a single instance of Clinton allegedly dropping trou and asking Jones to "kiss it" is not "severe" enough abuse to create a hostile work environment. "My initial reaction was that Judge Wright's ruling was right," says one legal academic, who asked that his name not be used because he recently clerked for a Supreme Court justice. "But the more I think about it, she may have a good appeal. If this isn't severe, what is? And her argument is, when she went to work, she had to worry about something others didn't--would this happen again?"

A number of high-court watchers say that in the case of Faragher v. City of Boca Raton, the Supreme Court may well offer guidance on what constitutes a "severe and pervasive" hostile work environment. "They granted cert on the issue of employer knowledge [about the harassment]," says Chicago attorney Candace Gorman, "but the 'severe and pervasive' question is intertwined." Although Gorman was involved in the Burlington Industries case before the Seventh Circuit, her portion of the case settled. Still, she has kept up with both cases and attended oral arguments last month in Faragher. "It appears that the Supreme Court will use Faragher to address the whole issue of proof in hostile environment cases," she says. "It was very clear that what is 'severe and pervasive' is one of the key issues they're looking at."

Although decisions in both cases are expected by July, the Jones team must decide by the end of this month whether to appeal. And while as of last week they were publicly vowing to do so, there were signs that Jones herself might not be up for the fight. Privately, one of the lawyers said they expect the Supreme Court to "vaporize" the Seventh Circuit's ruling in Burlington Industries. And then there is the question of whether Jones has tired of the fight. "It's not a question of whether she has the stomach for it," James Fisher says. "It's whether the costs to her family relationships--her husband and children--outweigh her desire to be vindicated."

Even if the high court rules favorably in one or both cases, Jones' appeal will be an uphill battle that could take anywhere from eight months to two years to be fully argued, briefed, and decided by the appeals court.

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