New Legal Landscape For Paula Jones Case

Should the Paula Jones case be reinstated by a federal court, it could further define the vague contours of sexual-harassment law - one of the fastest-growing areas of litigation in the United States.

The move could provide an early test of the US Supreme Court's new standard on sexual harassment, as well as further clarifying what qualifies as inappropriate behavior between the sexes in the workplace.

"Things that a lot of people thought simply never were sexual harassment, could be," says Caroline Forell, a law professor at the University of Oregon. Simply put, the case "has the potential to empower working women more."

The Eighth Circuit Court of Appeals, which was was to have heard oral arguments to revive the case on Oct. 20, could take several months to decide whether the dismissed suit should now go forward.

Reviving the case, let alone winning it, is still a long shot for Ms. Jones and her lawyers. Certainly, there's still the possibility that the enduring battle between President Clinton and the former Arkansas state employee could be settled out of court.

But specialists in sexual-harassment law point out that the recent Supreme Court decision, as well as the presidential lying alleged in the Starr report, has changed the legal landscape since the Jones suit was dismissed in April. Those changes have increased the possibility that the suit could go to trial.

In the Supreme Court decision in June - now germane to the Jones case - a majority of the justices sided with Kimberly Ellerth, who had brought a sexual-harassment suit against her employer, Burlington Industries.

Ms. Ellerth sued Burlington because her boss made repeated comments about sex, urging her to wear shorter skirts and advising her that she was not "loose enough" to suit him.

A federal judge threw the case out because Ellerth did not show tangible damage as a result of the harassment - a key test of sexual-harassment law. But the high court, in a reversal, ruled that Burlington is still liable for the boss's conduct, even though he never punished her by a "tangible job employment action."

In April, federal Judge Susan Webber Wright had dismissed the Jones case because Jones could not show sufficient damage from Mr. Clinton's alleged sexual overture to her in an Arkansas hotel room in 1991.

"The Ellerth case makes clear that [Jones] doesn't have to prove any tangible detriment," says Stephen Schulhofer, author of a book on sexual harassment and a professor at the University of Chicago Law School.

BUT Judge Wright also threw out the Jones suit because it failed to meet another test of sexual-harassment law - that the harassment must be "severe or pervasive." This has been interpreted to mean that conduct must be particularly egregious or be repeated over time.

Even though Clinton's alleged overture was "boorish," Wright said it was not one of those "exceptional cases" in which a single incident rises to the level of harassment.

Mr. Schulhofer says this part of sexual-harassment law was not challenged by the Ellerth case, and in that regard, its effect on Jones will be limited. But if the Jones case ultimately does go to trial, he says, it may serve to further define what qualifies as "severe or pervasive" behavior.

Some legal analysts are skeptical about whether alleged presidential mistruths in the Jones deposition will help persuade the appeals court to revive this case. While the Jones lawyers are playing up this point, it's not what the judges should look at, analysts say.

Rather, the court should be deciding whether the facts of the case - under the assumption they are true - rise to the level of sexual harassment.

But there is no escaping that Clinton's misleading of the Jones lawyers - and the country - has changed the atmospherics of the case. And in a he-said, she-said match such as this, Jones has gained in believability, whereas the president has fallen.

The appeals court may indeed be influenced by all these factors - especially given its record of deciding against the president on previous cases.

"Clinton has felt the Eighth Circuit has been hostile," says Mary Louise Fellows, a law professor at the University of Minnesota in Minneapolis.

It rejected Hillary Rodham Clinton's claim of lawyer-client privilege, as she sought to keep notes from independent counsel Kenneth Starr. It also ruled that the president could withstand a civil suit while in office - a decision later upheld by the Supreme Court.