Low Blows

It's the workplace, stupid.
I do not care if Bill Clinton wants to cavort with Hollywood cuties, light fires with torch singers or be a close personal buddy to Buddy. That's between Hillary and Bill and whoever he might be lavishing his attentions on in what had better be a completely consensual way. I just want him to keep his sexual shenanigans out of the workplace.

That would have spared us the sight of Monica Lewinsky boohooing all over Barbara Walters, remembering a failed office romance that consisted of nothing more romantic than thong-snapping and adolescent phone conversations and begging her boss to ejaculate as a smeary token of his affections.

It would have spared us the lawsuit that led to the Lewinsky revelations and the impeachment trial that followed.

The president's dirty laundry was hung out to dry on the Senate floor, and all because a former employee dared to challenge his behavior. No, not Monica. In the beginning--of this sordid chapter of the Clinton chronicles, at least--there was Paula Jones, an Arkansas state employee upset at being ordered to "kiss it" when she thought she simply had an audience with her boss, Governor Clinton. And who finally, and for whatever reason doesn't really matter in the long run, filed a sexual-harassment case against him.

It was in a January 17, 1998, deposition for that case that Clinton lied about his relationship with Lewinsky and set the whole morality play in motion.

Those lies could still net Clinton a contempt-of-court citation from U.S. District Judge Susan Webber Wright, who'd presided over the Jones suit. By lying under oath and then trying to cover it up, Clinton had not only set himself up for impeachment on obstruction-of-justice charges, but he'd denied Jones her civil rights in the process.

Rights that extend to the workplace, as the U.S. Supreme Court affirmed over and over this year in a series of sexual-harassment case decisions that lead right to Denver's door.

As a public defender, Beth Faragher spends most of her days dealing with crimes and misdemeanors far more straightforward than sexual harassment. Her voice mail is usually packed with messages from potential clients currently locked in the Denver jail, begging her help in Denver County Court.

One day in fall 1997, though, she answered the phone and learned she had a case going all the way to the U.S. Supreme Court. Her own.

The court had decided to hear Faragher v. City of Boca Raton. "It was a total shock," she says. And one a long time coming.

In 1985, Faragher began working as a Boca Raton lifeguard in order to put herself through college at nearby Florida Atlantic University. The job had its perks--Faragher, who loved recreational sports, got to be outdoors--but it also had its hazards. The most dangerous were the sharks. The land sharks.

There were only a handful of female lifeguards, and they were subjected to continual harassment from male supervisors. Some of the harassment was as seemingly innocuous as repeated requests for dates. But then there were the lewd comments--the weather looked good, with a "400 percent chance of blowjob"--and the touching: patting Faragher on the thigh, smacking her on the butt, once even tackling her on the beach. Despite the fact that their employer, the City of Boca Raton, had a policy against sexual harassment in the workplace.

Finally, Faragher and lifeguard Nancy Ewanchew (now Oakland) decided they weren't going to put up with it anymore. But her friend was so afraid of one supervisor, Faragher says, that she waited an entire year, until she'd passed her probationary period, to write a letter of complaint to Boca Raton officials. After the city completed its investigation in the summer of 1990--and listened to a half-dozen women describing sexual harassment on the job--the supervisors were docked some vacation time. Nothing more. So Faragher and Ewanchew filed a complaint with the Equal Employment Opportunity Commission, and after the EEOC gave them the right to sue, they did just that.

"Money was never the issue," Faragher says. (In fact, money couldn't be the issue--the harassment occurred before the 1964 Civil Rights Act was amended in 1991, allowing for punitive damages.) "The main reason we filed the suit was to be sure that these two guys couldn't do it to more women. It happened to every female lifeguard there--they almost all came and testified for us."

A federal district court in Miami ruled in the women's favor and ordered the two supervisors to pay Faragher $10,500 in damages under the state law claims. Under federal law claims, she won a whopping dollar from the city. But after the case was appealed, the court of appeals overturned the original decision--Faragher's dollar victory, in particular.

By now, Faragher had not only a thorough understanding of the law--after she'd shaken the sand out of her shoes, she'd enrolled in law school at Case Western Reserve in Cleveland--but a very understanding lawyer: Bill Amlong, an employment-law expert Faragher had heard speak at a National Organization for Women seminar. While Amlong kept an eye on the case, Faragher moved to Boulder, where she'd visited a cousin in the summer before her final year of law school. "I decided I really belong out here," she says.

After a year in Boulder, Faragher moved to Denver in 1994, taking a job with Vitek and Doniger, a firm that provides public defenders to the courts. And while there wasn't much call for sexual-harassment expertise in Denver County Court, such cases were becoming increasingly common on the district and federal level--after the Clarence Thomas hearings increased awareness of sexual-harassment cases, and after changes allowing punitive damages made such cases more attractive. In 1991, the EEOC considered just 6,883 sexual-harassment cases; by 1998, the number had jumped to over 16,000.

But Faragher didn't think much about hers--until the day the Supreme Court agreed to hear the case, and then, last June 26, finally came down with its decision. In Faragher's favor.

It was not enough that the City of Boca Raton had an anti-harassment policy. It had a duty to enforce that policy--and city officials had failed to both disseminate the policy and inform employees of complaint procedure, much less track the supervisors' behavior.

In making its ruling, the Supreme Court reinstated the damages Faragher was initially awarded.

"I'm still waiting on my dollar," Faragher says. "The law-school diploma can come down, but that dollar stays up on the wall."

Despite her starring role in a precedent-setting sexual-harassment case--she's lecturing on it this week in Miami--Faragher didn't really follow the country's most notorious sexual-harassment case: Paula Jones's suit against Clinton. "I understand it was one incident, when ours was kind of a continual, day-in, day-out harassment," she says. "But I understand that if one incident was egregious enough, it constitutes sexual harassment."

And if that incident is egregious enough, a woman should report it. After that, she adds, "if you think you've been wronged and you think they're not taking appropriate action, file a suit."

The decision in Faragher v. City of Boca Raton wasn't the only sex-harassment case the Supreme Court decided last June 26. In its ruling for Burlington Industries, Inc. v. Ellerth, it determined that harassment did not have to result in tangible harm in order to be actionable. Both decisions, particularly Ellerth, improved the long-term chances for Jones's suit, then under appeal. (Clarence Thomas offered a dissent from both decisions.)

Clinton, of course, wound up settling with Jones.
Faragher got her day in court. "It's really important--following through on what you believe in," says Faragher, who's now looking for a job in employment law, where she can put her experience to good use. "It's something that hangs over your head for years. But look at my case--boy, was it worth it.

"It will probably be the only time I'll ever be before the Supreme Court.

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Patricia Calhoun co-founded Westword in 1977; she’s been the editor ever since. She’s a regular on the weekly CPT12 roundtable Colorado Inside Out, played a real journalist in John Sayles’s Silver City, once interviewed President Bill Clinton while wearing flip-flops, and has been honored with numerous national awards for her columns and feature-writing.
Contact: Patricia Calhoun

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