January 3, 2006

Have the Harassment Rules Changed?

[Originally appeared in the Wall Street Journal, "Manager's Journal", April 6, 1998].

According to the Rev. Jesse Jackson, last week's dismissal of the Paula Jones lawsuit was "planned by God." Mr. Jackson is not the first to confuse federal judges with deities. But his surmise of divine intervention does recall the old saying that God looks after drunks, children and the United States of America -- or in this case leaders of the United States of America who are alleged to have behaved like drunken children. At any rate, now that Judge Susan Webber Wright has thrown out the world's most famous employment lawsuit, what can we conclude about the future course of harassment law? In particular, what does it mean for managers worried about their own organizations' liability exposure?

On the one hand, the case has prompted a vast public debate about the dangers and excesses of this newly grown branch of the law, and the public's newfound skepticism about harassment law is likely to be helpful over the long run to employers, as well as to individuals targeted by poorly founded harassment claims. On the other hand, it would be rash to read too much significance into the details of last week's ruling, which (1) doesn't signal any particular change of direction in harassment law, and (2) offers little guidance or precedent for anyone seeking to avoid such charges--an unsurprising fact, given that the Jones case was never very typical of the harassment docket.

'Open Season'

Pundits are busy offering a host of supposed lessons of last week's ruling, most of which should be received with great skepticism:

# From now on, it's one free flash or grope per employee. It's "open season on women here in this country," claims Jones spokeswoman Susan Carpenter-McMillan. "Sleazy bosses popping corks all across America" ran the headline over Andrea Peyser's New York Post column.

But as most commentators have realized, Ms. Jones lost not because the judge declared any sort of blanket immunity for the general category of behavior charged, but because of the defects in her particular case. Ms. Jones's outrage-related charges were weak because she had trouble showing that she had reacted with the severe distress that most women would presumably experience if they encountered a flasher. Her employment-related charges were weak because she had trouble showing that her later job conditions were affected. Either hurdle might have been overcome had Ms. Jones taken relatively simple steps during her employ with the state, such as visiting a counselor. A would-be harasser would be foolish to imagine he can count on his victims' doing nothing to document their discomfiture.

# Something must have been going on with this judge. To the editorialists at the New York Post, the judge's "shocking and questionable" ruling "raises the suspicion that she was trying a bit of jurist nullification" But other editorialists on the right sharply differed: "In fact, Judge Susan Webber Wright was simply striking a blow for legal sanity in sexual harassment cases," wrote the impeccably conservative Detroit News, while the Chicago Tribune agreed that the judge acted "properly and courageously."

Mr. Clinton may not have been suspiciously lucky to draw this particular judge, but he was lucky. One of the open secrets of our court system is that judges differ enormously one from the next in their willingness to screen cases out at the summary judgment stage. Had Mr. Clinton been sued in many other federal courtrooms around the country, or in many state courts where employment defendants almost never win summary judgment, he would today still be headed for a nightmare trial.

# Now other women will hesitate to press their claims. If they draw the right conclusions from this case, they'll do the reverse of hesitating: They'll file earlier. Most of the distinctive weaknesses in Ms. Jones's case sprang from her extreme tardiness in getting a case together. The statutes of limitation had run out on many of her prospective legal claims, she'd done little or nothing to document key elements of her case, and she'd allegedly said and done a number of things that worked to undercut her eventual claims. Had she consulted a lawyer early on, she would certainly have been instructed to keep a diary, visit a counselor and take other steps aimed at documenting both emotional distress and difficulties encountered on the job.

# Companies are going to feel less under the gun on the issue. Harassment law was full of frightening and unpredictable legal exposure before Wednesday, and none of it has gone away. Employers do win many victories at the summary judgment stage, but such cases are hard to turn into reliable precedent that keeps them from getting sued in the future: Prevailing Supreme Court doctrine encourages lower courts to look at the "totality of the circumstances" in each case anew, rather than developing definite rules that clearly assign or reject liability given a particular pattern.

If a business's operations are confined to one part of the country where federal judges are known as relatively friendly to the dismissal of weak cases at the summary judgment stage, it may have some mild cause to nod with approval. But national employers by definition have to be prepared to be sued anywhere, and would be very ill-advised to relax even if they believe their conduct is beyond reproach.

# See, the system works after all. Defenders of the American litigation system are sure to trot this one out, as they did after the O.J. Simpson civil case. But many others will draw a rather different conclusion: Even if the defendant wins in one of these cases, he loses.

Among employment lawyers, a widely observed rule of thumb is that if a case is destined to get past summary judgment, the defendant should offer a substantial settlement. But the lesson of Jones v. Clinton is that even cases that aren't strong enough to make it to a jury can inflict ruin on defendants' reputations and pocketbooks. For months experts have criticized Mr. Clinton's refusal to settle the Jones matter with a cash payment at an early point. Mr. Clinton still looks unwise not to have done so, given the damage his reputation has suffered as a result of the "discovery" process. Even if Bob Bennett had been clairvoyant enough to know for certain that the case would be disposed of last week, he would still have been well-advised to recommend paying Ms. Jones almost any sum she wanted. What does this tell us about the economics of modern American litigation?

# Now that the president has experienced firsthand the plight of defendants in our legal system, maybe he'll start supporting reforms. Don't count on it. The Jones affair points up the unfairness of any number of rules in our litigation system: the ultraliberal discovery procedures that encourage fishing expeditions, the misbegotten evidence rules that permit harassment complainants to probe the sexual histories of the men they're accusing even if a judge finds the information irrelevant, and the lack of a loser-pays principle. (In harassment law, as in discrimination law more generally, plaintiffs can collect legal fees from defendants if they win, but not vice versa.) In a rational world, we would now proceed to a national debate about how to change those rules so as to protect more defendants against ill-founded claims. But any such reform movement will almost certainly have to proceed without help from the Clinton administration, which now as ever is wedded to the notion of giving litigators the most expansive powers possible.

'Through the Mud'

Clinton adviser David Strauss, a law professor at the University of Chicago, had one of the best analyses of the case's aftermath. "I think we should resist the temptation to say that this shows the system works," he told National Public Radio. "I think it shows something closer to the opposite, which is even a baseless lawsuit that never should have been brought tied up the presidency for many months, dragged his name through the mud, dragged lots of other people's names through the mud, and turned out to be groundless. . . . That just shows the problem with allowing civil litigation to be used as a weapon against the president."

Or, he should have added, against anyone else.