Speaking Truth to Power (42 page)

The FBI, under the direction of Louis Freeh, settled the Doucette suit, and it settled sexual harassment claims raised by other female agents. In the case of two agents in California, a harassing supervisor was dismissed. Suzanne Doucette’s supervisor is now retired. The two California agents remained with the bureau. Suzanne Doucette resigned, under pressure, before suing the agency.

Inescapable is the irony that the agency embroiled in its own claims of
harassment and retaliation was the same agency charged with investigating my statement to the Senate. Inexperience with investigations and resistance to the validity of sexual harassment charges appears to be part of the workplace culture of the FBI. Perhaps this explains in part why the agency went along with the order to attempt to contradict my testimony despite contrary practices and procedures.

Soon after the Supreme Court adjourned for its October 1991 term, it heard arguments in Christine Franklin’s lawsuit against her school. Ms. Franklin was a high school student who claimed that, from the time she was in the tenth grade, one of her teachers continually harassed her. The record shows that Franklin complained that he “forcibly kissed her on the mouth in the school parking lot,” “asked her about her sexual experience with her boyfriend and whether she would consider having sexual intercourse with an older man,” “telephoned her at home and asked her to meet him socially,” and, finally, one day “took her to a private office [at the school] where he subjected her to coercive intercourse.” The school system took no action.

Later the Association of American University Women and the Center for Research on Women would inform us through studies that sexual harassment is prevalent in high schools and junior high schools. Moreover, the studies would reveal that many times, in fact more times than not, schools did nothing about the behavior.

Christine Franklin’s lawsuit before the Supreme Court was about damages. The trial court concluded that she could not sue for them under Title IX (the statute which prohibits discrimination on the basis of gender in the schools). The Bush administration had filed a brief supporting the position taken by the trial court denying Ms. Franklin’s suit.

The Supreme Court announced its unanimous decision in February 1992 and ruled that Christine Franklin could sue for damages. Many of the lawyers who worked on the case were surprised at the decision, which in no way restricted the amount recoverable under the Franklin suit. Clearly, the impact of the October 1991 hearing was on the minds of the commentators if not the minds of the Court. Despite the despicable facts which led to the lawsuit, the case had received relatively little
attention prior to the hearing. Upon the announcement of the decision it became a cause for celebration by women who had prior to October 1991 taken the fact of sexual harassment for granted.

I was pleased with the outcome of the suit but was all the more angry with the Bush administration, an administration which claimed to be sensitive to the problem, but which was unwilling to hold a school system accountable for neglecting to protect young victims. The hypocrisy was underscored by President Bush’s assurances to Paula Coughlin that he would see to it that her assailants were punished. That promise, too, proved to be empty.

Two years after the October 1991 hearing, the Supreme Court rendered the second sexual harassment decision in its history. Not since 1986, when the Court concluded that sexual harassment was a form of sex discrimination prohibited under Title VII of the Civil Rights Act, had it ruled on a workplace sex harassment claim. Teresa Harris brought the suit against her employer, Forklift Systems, Inc. She alleged that the company’s president, Charles Hardy, subjected her to numerous sexual and sexist comments: “You’re a woman, what do you know” and “We need a man as the rental manager.” Hardy suggested that Harris and he “go to the Holiday Inn to negotiate her raise.” He asked female employees to retrieve change from his front pocket and threw objects on the ground and asked them to bend over and pick them up. Hardy defended his behavior as joking. He apologized but did not stop.

Teresa Harris lost her lawsuit at trial, even though the court ruled that she was, in fact, offended by the behavior and reasonably should have been. Nevertheless, it concluded that Hardy’s vulgar behavior was not illegal because Harris’ job performance had not suffered as a result. Again the suit was about damages. In essence the court ruled that because Harris could take the behavior and still perform, she had to continue to take the behavior and could not be compensated.

By the time the Harris case was argued, the second female Supreme Court justice had taken her position on the Court. Ruth Bader Ginsberg heard the oral argument in the Harris case and actively participated in questioning the attorneys. She also traded comments with her colleagues,
reminding Justice Antonin Scalia that a comment directed at him suggesting that he knew little because he was a man had far less impact than a comment directed at a woman suggesting lack of intelligence because of her gender. Justice Sandra Day O’Connor wrote the opinion, for, again, a unanimous court, in the Harris case. She concluded that “Title VII comes into play before the harassing conduct leads to a nervous breakdown.” She added that the law provides relief for a “discriminatorily abusive work environment” even when it does not “detract from employees’ job performance.”

The Court’s opinion decisively affirmed the ban against sexual harassment in the workplace and strengthened the definition of what was actionable under the law. I was overjoyed at the speed with which the Court rendered its decision. To me it sent a clear message to the trial courts around the country that the Supreme Court took the problem of sexual harassment seriously. Even the separate opinion by Justice Scalia recognized the fact that further understanding about the problem was necessary before the Court could draw hard definitions which effectively eliminated lawsuits.

I agreed to comment on the case on the
CBS Morning News
and NBC’s
Today
show. The night before the interview, I spent hours poring over the briefs filed in the suit and the cases cited in justice O’Connor’s opinion. It was a labor of love. To me the Harris suit represented affirmation, a victory for working women. The interview with Harry Smith of CBS went smoothly. The case is a landmark case on a prominent problem affecting working women in this country. It did not represent a panacea for all the ills of sexual harassment but it was a start. It was all the more significant because it represented only the second time that the High Court had addressed sexual harassment in the workplace since the concept was introduced to the courts in the 1970s.

I was angry and disappointed when Katie Couric of NBC asked me to address David Brock’s allegations about me. The question had nothing to do with the Harris case and had not been raised by the show’s producers as one of the subjects they were interested in hearing about. Yet the question was revealing especially in the context of the discussion of a
major legal decision. Ms. Couric’s question reminded me that no matter what the breakthrough in law and in our understanding of the problem of sexual harassment, there will always be those who want to reduce us to talking about the salacious and the sordid.

Interestingly, she did not ask me to comment on the irony of the fact that Thomas, in whose confirmation hearing sexual harassment charges played prominently, was deciding cases on that issue. Nor did she comment on the potential conflict of interest that Justice Thomas might have in deciding the Harris and Franklin cases. The emotions, anger and hostility, he displayed at his hearing regarding my claim suggest that he might have been less than objective in his review of the cases and, moreover, might even compromise the entire Court by weighing in on these decisions. Since the Supreme Court is the court of final review and given the significance of the issue, these seemed to me the more critical questions. Yet again, I became the subject of the scrutiny, not Thomas or the important issue of sexual harassment. That I may always be viewed through the prism of my detractors is not surprising. In that, I am sadly not alone. For every woman I know who has complained about harassment—those who are successful in their efforts and those who are not—unfounded accusations continue as well.

The energy breathed into the issue in the wake of the hearings was reflected in the number of suits filed soon after and the innovation with which attorneys pursued them in court. That added support led to women complaining in groups rather than alone. Women miners were the first to be certified as a class in a hostile environment sexual harassment suit against their employer, Eveleth Taconite Co., a mining company. Female bottlers and machinists at Stroh Brewery Company sued the brewery for sexual harassment. Lori Peterson, the young lawyer in the case, asserted that Stroh’s advertising encouraged sexual harassment. Company work sites featured promotional posters that were takeoffs from television advertisements, such as those featuring the “Swedish bikini team.” The advertising suggested that men could have both the beer and the women and that both were equally valued. In another suit involving multiple complainants waitresses from the Hooters restaurant chain sued
their employer. In addition to complaining that the company failed to stop customer harassment, the women complained that the company contributed to it. Revealing uniforms which the company required them to wear contributed to the sexual harassment they experienced.

These cases are important because they represent group complaints about hostile environment sexual harassment—a new wave in the area of the law. They are important as well because they prove that the issue concerns women of different occupations and income classes. The miners, machinists, waitresses, and bottlers in these lawsuits can hardly be characterized as members of a privileged class of workers, out of touch with the reality of the work world. Rightfully, the rules applied to them in the same way that they applied to women in offices and professional settings. Finally, it seemed, the rules of law were finding their connection with the people which the law was supposed to protect. The gap between the law’s protections and the law’s promises was being filled.

Yet for each case that is publicly and favorably resolved there are countless others less public and less favorable to women who suffer harassment, like the surgeon in Oakland who complained during her medical residency that she had been harassed by her supervising physician. The result of her complaint was that she was constructively prevented from pursuing her career as a doctor. Only ten years later, in 1992, would she begin again the residency she abandoned under duress. She will fulfill her dream but much later and after much pain. Then there is the woman who successfully sued her Washington, D.C., employer, but has yet to collect the damages awarded to her. She had to sell her home to pay for the litigation, but she and her two sons are much closer for the experience. The successful lawsuits are important for these women as well.

Through the stories of successful complaints, all who have experienced harassment have found the community they need in order to understand the importance of their complaints. Yet in each case the dream that they had was abandoned or deferred. The tragedy in the stories goes beyond the immediate pain of the experience. The tragedy in the stories involves the waste that these experiences leaves us all
with—the wasted aspirations, wasted energy, and wasted talent of gifted and bright individuals.

Paula Jones’ claim that Bill Clinton sexually harassed her tests our commitment to this issue over personality. My sense of fairness and understanding of the issue lead me to conclude that Paula Jones, like other women, deserves to be heard. Instinctively, I relate to the difficulty she must have experienced in trying to tell her story. And despite those who claimed that feminists responded hypocritically to Ms. Jones’ complaint, much of the leadership in women’s groups agreed that the issue must be heard by the courts. Some made unsuccessful attempts to meet with Ms. Jones. Yet I was torn, because Ms. Jones was aligned with people who were Bill Clinton’s political enemies—some of the very people who may have dismissed my claim and, worse, accused me of a variety of wrongdoing.

Ironically, my detractors included in their charges against me a count of conspiracy with political “interest groups.” If I had gone to Washington organized with people who were Clarence Thomas’ sworn political enemies, everyone certainly would have cried foul. Under those circumstances, they would have been right to assert that a woman’s painful experience with sexual harassment should not be manipulated to further some unrelated political agenda. And I would have agreed with them. But the fact that Ms. Jones’ supporters have never indicated a sympathy to sexual harassment makes me extremely skeptical of her judgment in relying on them for advice. One woman, who identified herself as a Jones supporter, telephoned to advise me of my “hypocrisy.” Jones, she was sure, was “telling the truth” while I, she was just as certain, was “lying.” Nevertheless, I am willing to accept for the moment that Jones’ supporters were not all of her own choosing. And even if politics motivated some in their support for this claim, this still does not mean that we can dismiss it out of hand. Otherwise the hint of political motivation would become an irrebuttable defense against any claim, and political figures would be exempt from charges of sexual harassment. Each case must be examined on its own, with motivation and credibility taken into full account.