At Yale, Working Through the Knot of Sex Harassment

Before there was Bill and Monica, before there was Bill and Paula, before there was Clarence and Anita, and before there was Bob (Packwood) and much of his female staff, there was Yale.

There was Yale, whose law school attracted a powerful corps of female students in the early, heady days of liberation--and there was Catharine A. MacKinnon, a graduate student in political science. For a required supervised analytic writing paper in spring 1976, MacKinnon offered a scrupulous inquiry titled “Sexual Harassment of Working Women.”

A cheap feel, a dirty joke, an unwanted advance: This was the first effort to provide a framework to redress the kind of degrading behavior that probably has gone on since the first office or assembly line was set up in a cave. MacKinnon’s paper was swiftly expanded into a book. The sexual harassment genie was out of the bottle, and the American workplace would never be the same.

MacKinnon puts it more bluntly.

“It really took a certain foot off women’s necks,” she said.

Over the weekend, as sexual harassment charges continued to dog one of Yale Law School’s most famous graduates, several hundred scholars from around the world gathered at President Clinton’s alma mater to ponder the perplexities of what some say is this country’s hottest, fastest-changing field of law.

This was a learned convocation, void of any of the “he-said, she-said” shouting matches that usually accompany talk of sexual harassment. But just in case the intricacies of this evolving field were in doubt, no one could even agree on how the problem should be pronounced: Har-RAS-ment or HAIR-as-ment?

No one debated the topic’s timeliness. To begin with, the furor over Paula Jones’ sexual harassment case against the president has provoked a considerable backlash. And allegations that Clinton had sex in the White House with a former intern have only stoked these antagonistic fires. As MacKinnon acknowledged, “Monica Lewinsky’s case is being used to incoherently ridicule sexual harassment law.”

Critics--many of them unlikely Clinton defenders--say sexual harassment lawsuits turn too quickly into witch hunts. Regulations that prohibit sexual harassment are unnecessary or redundant, this faction contends. Lawsuits that claim sexual harassment may be easy to start, this line of argument holds, but they are almost always difficult to resolve.

Maybe it took the combination of Yale Law School graduate Anita Hill, Supreme Court nominee Clarence Thomas (also a Yale Law grad) and an alleged pubic hair on an alleged can of Coke to establish sexual harassment as a field-day subject for the news media. Kimberle Crenshaw, a professor of law at UCLA, called Thomas’ 1991 confirmation hearings “a teach-in, as it were, for sexual harassment.” By contrast, she cautioned, the charges and countercharges surrounding the matters of Jones and Lewinsky have turned those cases into “a teach-in for misinformation and misinterpretation” about sexual harassment.

With her piercing intelligence and passionate feminist politics, MacKinnon was hailed repeatedly over the weekend for her pioneering work. She was in graduate school, pursuing a doctorate and a law degree simultaneously, when she undertook the project that became “Sexual Harassment of Working Women.” Now in “something like its 13th printing” from Yale University Press, its author said, that effort was launched as a political theory of the women’s movement. What MacKinnon decided was that it all came down to law: “To me, I thought that not being equal was the problem.”

Up until then, MacKinnon said, most women had assumed that workplace harassment was “just part of life.” So right away, she said, she knew she had hit on something big.

“It’s quite amazing,” she remembered, “to discover the most obvious thing in the world that was hanging around and everybody was acting like it didn’t exist.”

Over the weekend, the original typewritten edition of “Sexual Harassment” sat enshrined in a makeshift reliquary, a glass case next to the sign-up table. By speaker after speaker, MacKinnon was lauded as a teacher, a friend and a ground breaker who figured out that sexual harassment is about what women--and in some cases men--do not want.

But this was a choir of the converted. MacKinnon, who teaches law at the University of Michigan, has devout defenders and fierce foes. University of Illinois psychologist Louise Fitzgerald falls firmly into the former category, but in a recent sexual harassment lawsuit, Fitzgerald noted, a female plaintiff was apparently supposed to be insulted when her opposing counsel described her as being “part of Catharine MacKinnon and her ilk.”

Sexual harassment is nobody’s idea of a laughing matter, but this depiction drew roars. So did UCLA professor Crenshaw’s recollection of her cab ride to the conference. What was going on at the law school, wondered the cabbie, who had ferried a number of participants. Crenshaw told him, then watched him whirl around to face her. “Omigod, you’re Anita Hill, aren’t you?” he exclaimed.

“He was also African American, so it wasn’t just colorblindness,” Crenshaw said dryly. By the end of the ride, she added, the driver was inviting her to stop by his club for a few drinks and some friendly conversation. Maybe she could enlighten the guys, the cab driver told Crenshaw. Maybe she could tell them what sexual harassment really means.

By the definition offered up by MacKinnon and her colleagues over the weekend, that exchange probably constituted an annoyance, not outright sexual harassment. The cabbie’s entreaty did not affect Crenshaw’s professional status. But it was unwelcome, which is a key component. Sexual harassment involves unwanted actions or advances that occur in the course of work, MacKinnon maintains.

But no matter how clearly the problem is stated, sexual harassment is invariably a messy matter. Power is always part of the equation, and “issues that involve serious differences of power are seldom clean,” MacKinnon said. Besides, she went on, “I just have to say, people do not think very well about sex. Smart people get stupid when the subject is sex. They obsess about it. But they do not think well about it.”

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Sexual harassment lawsuits became possible as a result of the Civil Rights Act of 1964. In a gesture of spite, Rep. Howard W. Smith, a Virginia Dixiecrat, added a rider about sexual discrimination, hoping it would bring the bill down. It did not. But only since the late 1970s has the doctrine been widely applied. In the context of the legal process, “it’s still in its infancy,” said Yale Law professor George Priest. “It has to be continually rethought.”

Santa Cruz attorney Jennifer Drobac teaches one of the country’s few courses devoted exclusively to sexual harassment law, at Stanford Law School. She contends that “this area of the law is changing more rapidly than almost any other. If you look at the law, most personal injury law goes back decades, if not hundreds of years. This is baby law, but it should be treated as an important subset of personal injury law.”

Accountability remains a persistent issue: Is an employer responsible for what happens on the job? What about sexual harassment on campus? Who is responsible for what goes on between teachers and students? Should employers buy sexual harassment insurance?

Then there is the welcomeness question. Fitzgerald, of the University of Illinois, said men and women often differ strongly in their interpretation of whether an overture is welcome.

“Men tend to sexualize women’s behavior and to read invitations where none exist,” she said.

In one recent case involving a coffee shop encounter, Fitzgerald said a man actually testified that “she stepped on my foot and that told me she wanted to have sexual intercourse.”

For plaintiff and defendant alike, sexual harassment cases turn lives upside down. Accusers and the accused are subject to horrible, often unforeseen personal scrutiny, said Barbara Reider, a nuclear physicist in Connecticut who said she lost her job because of a sexual harassment incident. Reider, now an independent consultant, will not name her former employer because she has action pending. But she said her psychological and sexual history has become fair game for her former employer’s attorneys.

“I think we need much more stringent controls over the abusive use of this information,” Reider said.

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Many sexual harassment claims are settled--or abandoned--before they reach court, so exact numbers are difficult to come by. But one study shows that sexual harassment complaints to the government rose from 6,000 in 1990 to more than 15,000 in 1996.

The profile of sexual harassment cases has risen as well. Yale itself was recently embroiled in controversy when a 32-year-old male professor had a consensual relationship with a female undergraduate; the professor ended up in a psychiatric unit and lost a tenure track offer from another school. In the aftermath, the university banned sexual relations between teachers and their students.

In another important case, the Supreme Court in December heard arguments in a same-sex harassment lawsuit that is expected to further establish legal precedent. Two heterosexual males are accused of abusing another heterosexual male on an oil rig in the Gulf of Mexico.

No matter what happens in l’affaire Clinton-Jones, MacKinnon predicted that similar cases will follow. Backlash or no backlash, there’s no turning back, MacKinnon said. Sexual harassment is “epidemic in the halls of power,” she said.

“And I’m sorry to have to put it this way, but you ain’t seen nothing yet.”

Moreover, the issue is growing international in scope. One scholar here from England discussed the issue in the framework of international human rights law and urged the United Nations to play closer heed. A professor from a university in Japan recounted the ongoing struggle to establish sexual harassment policies on campuses in her country. A Canadian delegate outlined that country’s national sexual harassment policy but conceded that implementation is always a challenge. “C’est difficile, n’est-ce pas?”