Speaking Truth to Power (22 page)

Sexual harassment is also an underreported offense. As I have said, only 3 percent of the incidents of sexual harassment culminate in a formal complaint being filed against the harasser. And by most accounts, employers rarely sanction those who are found to have harassed an employee or colleague. The same kinds of explanations offered for dismissals in rape cases are offered to dismiss sexual harassment claims.

Hatch’s complaint described the law as overly broad. Senator Specter erred in the opposite direction, basing his decision to ignore my claim partly on the mistaken assumption that sexual harassment law governed only touching or threats. Under Specter’s reasoning the only time sexual
harassment is cognizable is when it includes sexual assault or battery. Since 1986, when the Supreme Court decided its first sexual harassment case, all courts have recognized not only the “quid pro quo” form of sexual harassment but the “hostile environment” form as well. Quid pro quo harassment is the equivalent of sexual extortion. A supervisor informs an employee that retaining her job or gaining promotion or raises is contingent on complying with sexual requests. Hostile environment harassment does not require the explicit threat of being dismissed, but can exist where the supervisor’s or fellow employees’ persistent unwanted sexual requests, comments, suggestions, or other conduct pervades the workplace, making it antagonistic or otherwise hostile. The law has never required unwanted touching as a prerequisite to a claim of sexual harassment. And underlying the recognition of the hostile environment form of sexual harassment is the assumption that certain workplace conditions can produce a level of intimidation even though the harasser does not assault the target or threaten retaliation for not acceding to sexual requests.

Whereas Hatch’s overstatement lumps false and legitimate claims together in the minds of potential claimants and the public, Specter erroneously elevates the burden in a sexual harassment complaint to some tortious or criminal act, so that individuals who have not experienced physical contact or outright coercion at the hands of their harassers may wrongly conclude that they have no cause of action. Both statements are unfortunate reflections of the senators’ ignorance, passed into the public domain as wisdom. Such flawed analyses from the mouths of public officials are worse than unfortunate on the eve of a hearing in which they are charged as fact finders. After all, since Congress is responsible for passing the legislation aimed at ending racial and gender discrimination in the workplace, the public assumes that members of Congress have some knowledge of those laws. Thus, the public is likely to be swayed when a senator espouses a position on the limits of the laws’ protection. Faulty information, negligently or purposefully spread for partisan reasons, is particularly harmful when its source is a person in public trust.

As Tuesday, October 8, wore on, pressure mounted for a delay of the
Senate vote on the Thomas nomination. Once the Republican senators realized that a hearing on my claim was increasingly likely, the negative rhetoric escalated. The generalized comments and misrepresentations about sexual harassment turned into personal attacks on me. Like the rhetoric of the day popular in today’s political campaigns, the pro-Thomas rhetoric was based more on aspersions to me than enthusiastic arguments for the candidate.

As the Senate debated a postponement of the vote, Senator Hatch displayed his ignorance of the issue of sexual harassment as well as his hostility to my claim. “She isn’t some young, high school secretary,” he said. “She’s a Yale law graduate interested in civil rights and these issues and an expert on them.” Over the course of the two preceding days, Hatch had declared my claim a political ploy. He had even accused Senator Metzenbaum of leaking the confidential FBI report to the press, though he later apologized for this unsupported accusation. While declaring that he took sexual harassment seriously and was sympathetic to its victims, Hatch had decided days before my testimony that my statements about my experience were untrue, apparently, at least in part, because I was too old and/or too educated to be sexually harassed.

When Senator Hatch said that I was not “some young, high school secretary” but “a Yale law graduate,” his information was not faulty, but the conclusions he apparently drew from it were. First, Hatch may have meant that harassment is directed only at young women whose education does not include a college degree. In fact, women of all age groups and educational levels are victims of sexual harassment. And though I was twenty-five when I worked for Clarence Thomas, well within the range of twenty-two to thirty-five whom harassers tend to target, women in their forties, fifties, and sixties are also sexually harassed. Nor does a woman’s education or profession exempt her. Dr. Frances Conley, a neurosurgeon at Stanford University, left her position there after years of experiencing sexual harassment and other forms of sex discrimination. One of the most patently offensive incidents occurred when one of her male colleagues fondled her under the operating table during a surgical procedure she was performing. In a 1989 survey, 52 percent of the
women engineers polled reported that sexual harassment was the greatest frustration of their work. By suggesting that only high school secretaries are subject to sexual harassment, Hatch painted a picture of harassment victims that was misinformed and patronizing. He promoted a myth that excluded most of the workingwomen in the country from his sympathy, since most who experience harassment do not fit Hatch’s description.

Hatch may also have been implying that lawyers, particularly those who graduate from Yale, are more likely to raise complaints about harassment than other women. Again he was wrong. While lawyers often defend the rights of others, there is no evidence that they are more forthcoming in complaints about violations of their own civil rights. I know of only one major case in which a woman lawyer brought a claim of sex discrimination against her employer,
Hishon v. King and Spaulding
, in 1980.

Most sexual harassment cases do not involve women lawyers as plaintiffs. Yet one should not conclude that sexual harassment does not exist in the profession or that women lawyers are not its targets. In a 1991 survey conducted by the American Bar Association’s Committee on the Status of Women, four of five women lawyers said that they had experienced or witnessed incidents of sexual harassment in their workplace. Surveys from around the country support this finding. And women versed in civil rights law are no more likely to bring claims than other women lawyers. In 1994 a group of female attorneys with the NAACP, the oldest civil rights organization in the country, complained publicly for the first time about a pattern of gender bias that had existed in the NAACP for years. Their allegations included harassment-related charges as well as charges that women were not paid comparably to men in similar positions and were not promoted at the same rate as men. Despite their familiarity with civil rights law, these women did not sue to complain about violations of their civil rights. For years they attempted to deal with the matter internally. There is no factual basis for Hatch’s implied assertion that women lawyers either are not victims of discrimination or are more likely to complain immediately.

Hatch may have been making an even more troubling, if veiled, assertion in his statement from the Senate floor: that well-educated older women do not deserve sympathy even if they
are
harassed. While women in these categories may be in a better position to complain about sexual harassment, they are still subject to the social and legal constraints that compel other women to remain silent. As court cases and empirical studies show, neither education nor professional achievement nor age insulates a woman from the attacks on character often waged if she raises a sexual harassment claim.

Hatch’s misguided observation reminds me of a comment attributed in 1981 to Phyllis Schlafly of the conservative Eagle Foundation, who claims that men hardly ever ask sexual favors of women from whom the certain answer is no. Virtuous women are seldom accosted by unwelcomed sexual propositions or familiarities, obscene talk, or profane language. Accordingly, since virtuous women so seldom experience harassment, the numerous claims must be raised by women without virtue and thus society should not be concerned about it.

Stretching the imagination to assume that Schlafly is correct about the experiences of the virtuous woman does not resolve the problem. Schlafly still misses the point that the law is in place to protect a victim’s civil rights, not her virtue. The issue of virtue has no bearing on the question of the law’s application. Similarly, my age and education had no bearing on whether the behavior Thomas engaged in was offensive. After all, we do not require that a man who complains about a mugging show that he is a good person or even that he acted sensibly to prevent the mugging. Nor should we care in the case of a mugging whether the victim has other resources. We ask only that he show that he was mugged. Very often we conclude that he was by simply taking his word for it. Hatch and Schlafly reduce the issue of harassment to the question of who is most likable rather than whether there has been a violation of a person’s civil rights. Schlafly stacks the deck by declaring that victims lack virtue. Senator Hatch did likewise by implicitly limiting the right to complain to young women with only a high school education.

Unfortunately, it is true that society is often less sympathetic to victims of sexual harassment who in its assessment ought to be able to take care of themselves. Hatch played on that lack of sympathy and missed the point altogether that the issue of the hearing was not sympathy for me but whether an individual who had engaged in harassing behavior should be appointed to a lifetime term to the country’s court of last resort. Here again, context is important. If the character and fitness of the nominee are the central issue, the age, education, or profession of the complaining witness should not matter. For even if society is willing to say that it does not care about a particular category of harassment victims, it still must care about the qualities of a person who is to be appointed to the Supreme Court. In the debate about whether to delay the confirmation vote, Senator Jim Sasser of Tennessee reminded his colleagues of their “most profound responsibility to advise and consent” and their obligation “to the character of the judicial branch.” The comments emanating from Washington in the days leading up to the hearing show that some in the Senate had lost sight of both.

Barbara Mikulski, Democrat of Maryland, also forcefully reminded her Senate colleagues of the message they would send to the American public if they decided to proceed with the vote. In clear terms, she warned them about wielding the Senate’s power to attack a woman and pointed out the irony of wielding that power in the context of a claim about sexual harassment—behavior that is itself about the abuse of power.

While the senators displayed a lack of empathy with the experience of sexual harassment from the point of view of the target, they showed that they were well versed in the diversionary tactics used to attack individuals who raise claims of sexual harassment and to avoid any scrutiny of the alleged harassers. In the days before the hearing, senators denigrated my claim maliciously and with total disregard for its validity. Senator Strom Thurmond called the claim the “rantings of a disgruntled employee who had been reduced to lying.” Senator Danforth called it “garbage” and “sleazy,” expressing his concern for the sanctity of the U.S. Senate: “we can’t have this body known as the trash dump of American politics.” Senator Hatch described the charges as “trumped up.” President Bush and his staff got involved as well. Marlin Fitzwater, veteran journalist and White House spokesperson at Kennebunkport, called the charges an attempted “smear,” and the president summed up the attitude of the entire lot when he declared that he was “not in the least concerned” about the charges.

Surprisingly, the Senate voted unanimously to delay the vote on Thomas and hold a hearing on my claim. But during the debate Senator Danforth had given the speech that most likely compelled his colleagues to do so. He revealed that Judge Thomas himself wanted the hearing
held to “clear his name.” In hindsight I think the Senate’s consent to the hearing was quite cynical. I believe that the Republicans who voted to hold the hearing did so because they felt that the idea of a public hearing would be so threatening that I would withdraw my complaint, or that even if I did appear they would be able to destroy me.

The tone was set for the hearing by many irresponsible and insupportable accusations. Hostile senators primed the public to despise my claim and the law from which it arose. The press contributed by publishing the misinformation with little attempt at balance. A 1992
Columbia Journalism Review
study showed that the press coverage was biased in favor of Thomas, with his proponents quoted three times more often than those who favored a hearing on my claim. Thomas’ family life and personal background were explored quite positively by the press for weeks prior to the leak. Before the hearing the press gave little attention to my background.
The New York Times
carried a major story about me featuring a photograph of my parents, but it was the only paper to do so. Only after the hearing did the press explore my background, and then only to prove or disprove this or that theory about my charges. With nothing to contradict them, hostile senators could portray me in any manner they chose. Once the hearing started, those same senators could paint my claim as bizarre or aberrant and therefore incredible, since credible information about sexual harassment was also absent from the press coverage.