Hostile Environment : It’s a Case of the Powerless vs. the Powerful

In forcing the Senate to delay its vote on Clarence Thomas’ nomination to the Supreme Court, women exercised power in American poli tics in a way that has never happened before.

For all the talk of women’s votes and women’s issues and the gender gap, until last week, it was difficult for politicians to harness the potential of women as a political power. As a Democrat, I wish it were my party that had tapped the energy and anger of women; I wish it had been the Democratic leaders who had recognized immediately the seriousness of sexual harassment and demanded a delay. But the sexual-harassment issue--like congressional pay, money in politics, the savings-and-loan mess, the Los Angeles police-brutality incident and most of the issues that resonate most deeply with the public--cuts across party lines. The divide is not between Republicans and Democrats, but between the powerful and the powerless.

Anita F. Hill’s story of sexual harassment was just too unfamiliar to many senators, and just too familiar to many Americans. Studies of federal employees, in 1981 and 1987, found 40% of the women had been sexually harassed on the job, and scholars estimate that as many as 85% of America’s working women face sexual harassment in the workplace at some point in their careers.

Like Hill, most never report the incident; many continue to work for the men; some continue to have cordial relationships with them. Hill never complained, she says, because she was afraid to burn her bridges. She was a vulnerable, young woman at the beginning of her career. She moved from one post to another with Thomas because she hoped for the best, thought it might stop and needed her job.

The reaction of women to sexual harassment may be difficult for senators to understand. Sexual harassment is abuse of power. You can’t hang up on your boss when he asks you out because he has the power to fire you. You stay at the job because you need it, not because you find conditions tolerable. You maintain a cordial relationship because the man may be called as a reference, because you don’t want to be known as a troublemaker.

That’s not how U.S. senators would react if they were harassed by someone. Senators are used to complaining if they’ve been wronged. They take action--make a speech, fire the consultant, get even, not mad. But then, senators don’t have bosses. They have power.

Federal judges are equally removed from realities of workplace harassment, and how people without power respond to it. They don’t have bosses either.

Since the mid-1970s, when the federal courts first recognized that Title VII of the 1964 Civil Rights Act prohibits sexual harassment, federal judges have been in the business of deciding whether women who complain of sexual harassment are telling the truth, and whether the conditions are bad enough to justify relief. In doing so, they have too often imposed tests of credibility that even legitimate victims cannot meet, and tests of strength and endurance that no victim should be required to meet.

The tests are familiar, borrowed almost wholesale from the law of rape--as if decades of criticism had never taken place. Doctrines of consent, corroboration, fresh complaint and provocation have long been used in the law of rape to shift the focus from the wrongs of the defendant to those of the victim. In rape law, it has been all too common to ask what she did to invite the attack; why she didn’t fight back; why she didn’t complain immediately; why there are no witnesses. In rape cases, too many courts have applied standards of objective reasonableness that expect women to stand up against stronger men and to fight back when attacked--to behave, in a word, like reasonable men.

The worst of rape litigation stands, in many federal courts, more as an example followed in sexual-harassment suits than as one rejected. That is painful proof not only of the endurance of sexism in the law, but also of the vast divide between the powerful and the powerless.

The absence of a prompt complaint, the absence of corroboration and the continuation of a relationship are not irrelevant to a woman’s credibility in a sexual-harassment case--but they do not prove nearly as much as most judges believe. “Unwelcomeness” is a required element of any sexual-harassment suit. But to decide, as some courts have, that a “pleasant” rejection is not enough to meet this test is to apply the discredited notion that “no means yes” to women who may lose their jobs if they say “no” too clearly.

No one has suggested that every workplace slight amounts to a federal case--harassment must be “pervasive” and pervasiveness must be judged by the standard of the reasonable person. For many judges, however, in sexual harassment as in rape cases, the standard of reasonableness is an invitation to substitute their levels of tolerance and sensitivity for the victim’s. Those who complain too much find themselves punished for their “hypersensitivity” and those who don’t complain (“how bad could it be if she didn’t complain”) for their strength.

I believe the American people understand sexual harassment far better than judges and senators do. Ask any defense lawyer and he will say he’d rather try such a case before a judge than a jury. With good reason.

What has been striking about so much of the public debate in the case of Thomas and Hill is that it has focused not on whether the allegations are serious but on whether they are true. One is hard-pressed to hear citizens making the arguments that lawyers have made so often, and successfully, in federal court: that a boss should be able to ask his assistant out--a few times anyway; or that pornography is funny--women shouldn’t be so thin-skinned, even if the boss is someone who should know better, or that the charges should automatically be discredited because of the passage of time and the failure to complain. The Senate seemed content to leave the charges unresolved. It was the American people who forced them to be addressed.

Even as Hill assumed the witness chair on Friday morning, the White House continued to insist that Thomas had been smeared. One day after George Bush gave a speech about pornography, the President and his team seemed unable to believe this women could even possibly be telling the truth. Indeed, even after her testimony, Sen. Orrin Hatch (R-Utah) still could not understand how Hill could have continued to work for Thomas.

In a fundamental way, they made clear that they still do not get it.

Much has been made of the gender gap between men and women in their attitudes toward sexual harassment. Certainly, men often see advances as welcome that women find hostile and threatening. Women are socialized not to complain--to internalize, to bite your lip and blame yourself and hope he will still like you. But as important as gender may be, it is not the only factor at work.

In the last analysis, the larger gap may be based on power. Last week, people without power--women, and some men too--sent a message to the powerful. The Senate and the law will never be quite the same. And in coming together to send that message, the people demonstrated to their leaders where the real power ultimately lies.