PERSPECTIVES ON THE THOMAS CONTROVERSY : Unfairness to Thomas Won’t Advance the Fight Against Harassment : His confirmation vote must rest on evidence, not on emotional responses to Hill’s unprovable allegations.

Sexual discrimination of any kind is clearly wrong. As a lawyer and a woman I take seriously the issue of sexual harassment: It is an invidious discrimination that should not be tolerated. But the allegations of Prof. Anita Faye Hill against Judge Clarence Thomas are simply too murky to be the determinate issue on whether he should be approved as an associate justice of the Supreme Court. More important, the Senate should not allow itself to be stampeded into transforming the Thomas confirmation into a litmus test on one’s “sensitivity” to the problem of sexual harassment.

Sexual harassment is perhaps the most inherently subjective form of sexual discrimination in the workplace. Absent a flagrant violation of accepted behavioral norms, its existence is often unclear amid the subtleties of everyday experience. Why? Because what constitutes sexual harassment is not easily defined, either by law or society, and its existence often depends on the eye (or ear) of the beholder. The continuing presence of the book “You Just Don’t Understand” on the nation’s best-seller lists is testimony to how men and women often misunderstand each other, particularly on issues of sex.

Consider this example. In the midst of banter, a male official tells an off-color, sexually explicit joke, but before doing so, politely--and with no malicious intent--says to his one female aide, “You may want to cover your ears.”

Is this sexual harassment? In the legal sense, probably not. But in the eyes of many women, yes--because it gave the woman an unreasonable choice: Either listen to something that is very likely offensive; or act like a child and cover one’s ears.

The fact that there are different opinions on the merits of such a simple example as this illustrates the impropriety of turning the confirmation debate in the Senate into the kind of sexual harassment sensitivity exercise that some of Thomas’ opponents clearly intend to make it. Converting that debate from one on the qualifications and actions of a particular nominee to a national soul-searching on sexual harassment, its existence and causes, is unfair and unfounded.

I share the deep-seated anger felt by many women about the stigma attached to making a sexual harassment charge, and about the often cavalier attitudes revealed by its seldom heard debate. But to allow our unease with the subject, and lack of certainty about when it exists, to determine the fate of a Supreme Court nominee is to turn the constitutional process of advice and consent into a sideshow.

The Senate Judiciary Committee is being pilloried for relying on a “cursory” investigation of Hill’s charges before its vote. But that investigation revealed one immutable fact, a fact that is now the crux of the dilemma facing the Senate: Hill’s charges, like many sexual-harassment claims, are difficult, if not impossible, to prove.

How can we expect Thomas to prove a negative? And why did Hill, an obviously talented and determined attorney, not even investigate other job opportunities before following Thomas to the Equal Employment Opportunity Commission after the alleged abuses occurred?

So how are we to judge? How do we incorporate this unusual and highly emotional trial into the deliberative process of advise and consent?

One thing is clear: We should not allow emotion to govern. American history is replete with instances where the fervor of the moment resulted in “legal,” yet truly gross, miscarriages of justice. The Japanese relocation camps of World War II and the Salem witch trials are but two of a long list of examples. One can be fervently committed to the elimination of sexual harassment in the workplace and yet be equally committed to proceeding with fairness and caution in considering its weight in a vote on Thomas.

Americans have adopted rules of evidence and procedure, and accepted standards of civility as well, to prevent the kind of character assassination and slander that has occurred in recent nomination debates. There are two victims here already: Clarence Thomas and Anita Hill. Let’s hope that a fundamental principle of American jurisprudence does not become a victim of this process as well. Every man and woman is innocent until proved guilty.

No one can be satisfied with the quality of the evidence presented throughout last weekend’s debate. Yet the Senate is now presented with a choice: whether to allow that evidence to decide its vote on the confirmation of Thomas.

In making that choice, the Senate should not succumb to a political need to demonstrate “sensitivity” to an issue about which we are all concerned. Nor should it disguise partisan or philosophical differences in the cloak of sexual-harassment concerns. The Senate should make its decision based on the verifiable facts and evidence before it. On the basis of the facts now publicly revealed, and as a woman who is genuinely concerned about sexual discrimination, I would vote yes for Thomas.