36 Trial Lawyer • Summer 2022 By Meredith Holley OTLA Guardian “Are you ticklish?” “How you doin’?” “I just think of you as a painting hanging in the courtroom.” “You’re sweet like candy. The candy tastes sweet, but I don’t know how you …” “I don’t think he was actually threatening to kidnap her, he was just warning her. He was being nice!” “I know she said her boundary is that I not touch her, but what if my boundary is to touch her?” “Some women are just too good looking, and men have to stare at them.” “He’s emotionally fragile right now, so you should just be nicer to him. Would it hurt to spend a little time with him?” “I’ve known other women who worked with him and never said they were uncomfortable — and they were really pretty!” “I mean you’re pretty, but not rape-able pretty.” If you were a juror, how many of the statements above, taken individually, would you consider sexual harassment? How many of the statements, combined with one incident of groping, would you consider sexual harassment? In 1998, Gloria Steinem wrote a much-criticized op ed for the New York Times called, “Feminists and the Clinton Question.”1 In her article, Steinem characterized Bill Clinton’s behavior toward women accusing him of sexual harassment as “gross, dumb and reckless” but explained his continued popularity with women voters, saying that, even if women voters believed all of Clinton’s accusers, which she says she did, his behavior was not “sexual harassment” under the law. She explained that because all of his accusers (at that time) agreed that Clinton stopped when they said “No,” Clinton had not violated the core standard of sexual harassment law: Consent.2 By contrast, she explained, Clarence Thomas created a hostile work environment for Anita Hill by repeating unwanted behavior. Sexual harassment law, Steinem explained, is not intended to prevent sexual conduct itself, but rather unwanted, non-consensual conduct. What Steinem called the “Clinton Question” was quickly characterized as the “one free grope rule” by conservative columnists.3 Excusing Clinton’s abuse of power, they argued, was purely political and inconsistent with treatment of Republican politicians. In 1999, Juanita Broaddrick went public with the allegation that Bill Clinton had forcibly raped her. Steinem appears to have stayed silent as to that allegation and whether it answers the Clinton Question. Whether you call it the Clinton Question, the One Free Grope Rule or Just Locker Room Talk, both Oregon and federal sexual harassment law say unwanted conduct must be “severe or pervasive” enough to alter the conditions of employment before it is considered unlawful harassment under employment law. Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986), OAR 839-0050030(1)(b). Circumstances of severity While we all kind of know that “seMeredith Holley unwanted conduct
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