From the Archives: Views on the Clarence Thomas controversy: The law says that women must define harassment

With “Confirmation” airing on HBO this weekend, the landmark 1991 Clarence Thomas confirmation hearings, in which attorney Anita Hill accused her former supervisor Thomas of sexual harassment, is once again a topic of discussion. This article was originally published in the Los Angeles Times on Oct. 21, 1991.

Sheila James Kuehl, Abby J. Leibman and Jenifer McKenna are managing directors of the California Women’s Law Center, a statewide policy center that supports the legal rights and interests of women and girls.

To listen to the rhetoric of U.S. senators supporting the confirmation of Judge (now Supreme Court Justice) Clarence Thomas, sexual harassment in the workplace is terrible -- serious and devastating in its effects on women. Yet these same senators, in their cross-examination of Anita Faye Hill, just as piously spouted every ridiculous male stereotype about women and every male vision of female malevolence or incredibility.

Gov. Pete Wilson also made pious general denouncements of sexual harassment, then last week vetoed a bill that would have given a victim of sexual harassment a remedy, short of going to court, for the actual harm she had suffered, as well as punishing the employer’s illegal behavior.
His stated reason? “Bad for business.” As though it would be better for a business to have to defend itself in court (where a harassment victim can recover civil damages) instead of more informally to a state commission.

The governor’s veto and the Senate’s confirmation of Thomas sent a clear message to working women that women’s experiences will always be belittled if they contravene male myths about women.

It’s as though you were not only allowed to punch me in the stomach every day at work, but that the legal definition of my pain is your opinion about whether I suffered or not. Your statement, as my boss, that “it didn’t hurt” would be the legal standard for my claim. Worse yet, if you were a male, you would be judging my pain by whether or not such a blow would have hurt a healthy male.

But the law, at least in California and the other Western states, recognizes the inequity of such a standard and the clear prejudice behind it. The focus is not on “perceptions,” which may differ, but on “harm,” which is actually suffered by a worker. It recognizes that a female worker may suffer harm not understood by a male employer.

Since a Supreme Court ruling in 1986, sexual harassment has been defined nationally as verbal or physical conduct of a sexual nature that affects the working conditions of an employee -- hiring, promotion, firing or evaluation--or creates a hostile or intimidating work environment. Such behavior is action-able (though not criminal), even if not “meant” as harassing behavior, and even if the behavior is only generally aimed at all women and not at the particular woman complaining.

But under this “environmental” harassment standard, guilt depends on who is experiencing the harm. Behavior that men shrug off may be physically harmful and deeply disturbing to women. Clearly, so long as men were allowed to define what constituted a hostile environment (that which would intimidate a reasonable man), women were expected to put up with “normal” obnoxious male behavior as part of their working conditions.

The law went another step in January when the federal Ninth Circuit Court of Appeals, covering the Western states, held that the standard for harassment must be the perspective of the reasonable woman, saying that a “sex-blind reasonable person standard tends to be male-biased and tends to systematically ignore the experiences of women.”

The court recognized what women have always known, that “because women are disproportionately victims of rape and sexual assault, women have a stronger incentive to be concerned with sexual behavior. . . . Men, who are rarely victims of sexual assault, may view sexual conduct in a vacuum without a full appreciation of the social setting or the underlying threat of violence that a woman may perceive.”

This is the appropriate standard, reflecting the old adage that the public generally believes to be the law: “Your right to swing your arm ends where my nose begins.” The rest of the federal appeals courts should follow suit.

Beyond legal definition, supervisors and workers alike realize that sexual harassment, like rape, is about nothing but power. If we truly want equality in the workplace, we must recognize illegitimate uses of power for what they are--unequal burdens placed on women to keep them from advancing, or competently doing their job.