Anyone who doubts that the law of sexual harassment is an incoherent mess need look no further than the 207 pages of opinions by seven judges of the federal appeals court in Chicago, in a case that was heard on Wednesday by the Supreme Court.

Add to that the stark contradictions between the Clinton Administration’s arguments supporting the plaintiff in that case and Bill Clinton’s arguments for dismissing the Paula Jones case.

Then mix in the omnifarious comments of eight Justices during the Supreme Court argument. Justice Ruth Bader Ginsburg, for example, repeatedly wondered aloud about the strange (she implied) dichotomy between hostile-environment claims based on a ”quid pro quo” and those stemming from a ”hostile work environment.”

A classic quid pro quo case would involve a male supervisor telling a female employee, ”You’ll never get promoted unless you have sex with me.” A classic hostile environment case might involve that same supervisor, or a group of co-workers, creating a ”severe or pervasive” atmosphere of sexism in the workplace through offensive–if not necessarily sexual–conduct or comments that demean women.

The answer to Ginsburg’s question–as she well knew–was that the Court itself has ratified the quid pro quo/hostile environment dichotomy ever since its first sexual harassment decision in 1986. Now some Justices seem eager to disclaim authorship.

Of course, to say that a body of law is an incoherent mess–and that it can lead to hypocrisy and injustice–is not to say that it should be junked. But perhaps it could be cleaned up a bit.

First, some facts: Kimberly Ellerth, the plaintiff in the Supreme Court case, is suing Burlington Industries for alleged sexual harassment by her boss’s boss, Ted Slowik. She says he made sexually suggestive remarks throughout their employment relationship, starting with the March 1993 interview that landed her a sales job; often stared at and commented on her breasts and legs; told lots of dirty jokes; patted her on the knee (twice) and the rear (once, right in front of her husband, at a holiday party); reduced her to tears by using sexual innuendo in phone calls between his office in New York and her office in Chicago; and urged her to ”loosen up.”

During a business trip in the summer of 1993, while leaving a hotel bar, Slowik allegedly told Ellerth: ”You know, Kim, I could make your life very hard or easy at Burlington.” Ellerth says she took this as a quid pro quo threat: Give me sex or you’ll never get promoted.

She did not give him sex, and she did get promoted–with Slowik’s help–in March 1994. Two months later, Ellerth resigned after two other superiors told her that co-workers and customers had complained about her work. Her initial letter of resignation complained about her supervisors, co-workers and ”whining” customers and said she had a better offer; it did not mention sexual harassment. Three weeks later, she wrote another letter, accusing Slowik of harassment. Her lawsuit against Burlington followed.

Ellerth has admitted that before quitting she neither complained about Slowik to superiors nor sought relief under Burlington’s policy barring sexual harassment. Her reason, she says, was fear of ”putting my job in jeopardy.” She also says (inconsistently) that she resigned her job because Slowik’s harassment was ”unbearable.”

Slowik and Burlington say that Ellerth’s tale is a mendacious melange of complete fabrications and distortions of innocent remarks and that he never harassed her at all. And Ellerth’s claims that she had told six co-workers that she was being sexually harassed were denied by all six. But under summary judgment rules, Ellerth (like Paula Jones) is entitled to a jury trial unless she would have no legal case even if her factual claims are true.

The trial judge threw the case out on the ground that Burlington should not be liable for alleged harassment that the company had no way of detecting or preventing. But the U.S. Court of Appeals for the 7th Circuit reversed, holding that Ellerth was entitled to a jury trial. The 7th Circuit’s central holding was that Slowik’s alleged conduct amounted to quid pro quo harassment even though Ellerth got the ”quid” (a promotion) without giving the ”quo” (sex).

The 11 appellate judges offered seven explanations for their decision, demonstrating that careful judicial reasoning can generate more confusion than clarity. Example: Judge Joel Flaum (joined by four others) concluded that Ellerth should get a trial on her quid pro quo claim, but not on her hostile environment claim. Judge Frank Easterbrook concluded she should get a trial on hostile environment, but not on quid pro quo. Go figure.

The central legal issue in the Ellerth case has also produced strikingly inconsistent stances by Bill Clinton and his own Justice Department.

Clinton argued (through lawyer Robert Bennett) in his Feb. 17 brief urging dismissal of the Paula Jones case that the decision in Ellerth was ”substantially out of step” with most case law; he stressed that a plaintiff must prove ”a tangible job detriment” to win a quid pro quo case.

But Clinton-appointed Solicitor General Seth Waxman said the exact opposite in his March 30 amicus brief arguing against dismissal of Ellerth’s case. Waxman wrote that the 7th Circuit’s decision was correct; he stressed that it is ”misguided” to say that a plaintiff must prove ”a tangible job detriment” to win a quid pro quo case.

What we have here is Bill Clinton (via Bob Bennett) proposing one standard of liability for Bill Clinton, while Bill Clinton’s Justice Department proposes a harsher standard for everyone else.

And if the Justice Department brief is right, then both the Clinton-Bennett brief, and Judge Susan Webber Wright’s April 1 decision dismissing the Paula Jones lawsuit, were probably wrong.

Clinton aside, the incoherence of sexual harassment law imposes heavy social costs: It begets wasteful litigation by tempting every fired or disgruntled employee to sue for a million-dollar jackpot. It spurs employers to try to avoid liability by invading employees’ privacy (as by cracking down on workplace romances) and censoring their freedom of speech (as by clamping down on any discussions that might tempt some sensitive soul to cry ”harassment”).

The problems are aggravated by the fact that in many such ”he said, she said” cases, we can never be sure what happened and whether the accuser or the accused is lying; indeed, often both are lying, or at least embellishing.

In Ellerth, Chief Judge Richard Posner of the 7th Circuit sensibly argues that employers should be liable only for conduct they had some reasonable way of detecting and preventing; broader liability would only ”impose costs without creating deterrent benefits. In the long run, these costs will be borne mainly by consumers, in the form of higher prices for the employer’s product, and workers, in the form of lower wages (because the higher costs are labor costs).” Many consumers and workers, Posner points out, are women.

Economic costs aside, ”the law is so mushy that it really is a matter of which judge or jury you draw,” professor Eugene Volokh of the University of California (Los Angeles) law school wrote in The Wall Street Journal. ”It makes it impossible for both employees and employers to tell what’s legal and what’s not. . . . No one knows how much he can legally say in the lunchroom about the conduct of our very own President.”

Vague laws, Volokh adds, ”make it easy for the result to turn on a judge’s or a jury’s prejudices, whether conscious or not. It’s always tempting to excuse conduct by those you like, and condemn conduct by those you dislike.”

All of this adds up to a recipe for injustice for those men who are falsely accused of sexual harassment–many of whom are ”left with virtually no remedy for the financial loss, social stigma and emotional distress they suffer,” reporter Judy Peres wrote in the Chicago Tribune on April 20. We have no idea how many men are falsely accused. We can’t know for sure whether Bill Clinton, or Clarence Thomas, or Ted Slowik is among them.

Is the harm done by false accusations outweighed by the good that sexual harassment laws have done? Probably. While lamenting that their dockets are clogged by many frivolous (or weak) cases, many judges also stress that sexual harassment law has spurred employers to discipline (or get rid of) the predators and harassers who used to make life miserable for many women at work. That’s a huge social benefit.

The law in this area needs to be refined, though. The Ellerth case gives the Supreme Court a chance to bring clarity out of the chaos.