In Our Time: Memoir of a Revolution (47 page)

Carmita Wood, whose case began everything, did not win her unemployment insurance appeal, but Cornell University found her a job in another department. Karen Sauvigne and Susan Meyer had an unfortunate
falling-out with Lin Farley, an escalation of their long-running quarrel over who actually named sexual harassment. Farley insisted that she had come up with the magic defining phrase. Sauvigne and Meyer argued that if eight people were tossing around words in one room, the eureka moment belonged to the group. It was a typical, destructive movement squabbling, the kind that dedicated activists often fell prey to in the absence of sufficient recognition for their work.

The members of the Cornell team went their separate ways. Lin
Farley started a book,
Sexual Shakedown: The Sexual Harassment of Women on the Job
. After twenty-seven rejections it was finally published in 1978.
“I thought my book would change the workplace,” she told me years later when it was no longer in print and few people remembered her name or her contribution. Karen Sauvigne and Susan Meyer moved Working Women United to Manhattan, where it became a clearinghouse and data bank for sexual harassment cases that were springing up at random around the country. Aggrieved complainants were filing for unemployment insurance, like Carmita Wood, or trying for workers’ compensation. Some were going into court to sue their employers or bringing complaints to their local human rights commissions. Working with a large map and color-coded pushpins, Sauvigne and Meyer tried to match up unrepresented litigants with volunteer lawyers.

These were the years of the first landmark litigations. Across the river in New Jersey,
Adrienne Tomkins, an office worker recently promoted to secretary at the Public Service Electric and Gas Company, had innocently gone out for drinks with her new boss to discuss her upcoming work evaluation. The atmosphere turned ugly when Tomkins refused to go along with her boss’s plans for the rest of the evening. As a result her fortunes at the company took a sudden nosedive, and eventually she was fired. Tomkins complained to the Newark office of the EEOC, where an investigator issued her a “right to sue” letter. Nadine Taub, director of the women’s rights litigation clinic at Rutgers, was appointed by the court to represent her. “
The judge said my students would find the case interesting,” Taub remembers. “I’m still not sure exactly what he meant.” When Tomkins and Taub won the first round, the utilities company appealed.

“We packed the courtroom with students,” Taub recalls. “An EEOC lawyer from Washington joined the case, and an Associated Press stringer put the details on the wire. I’m no Perry Mason but I like to think that it was the way I argued that won the day.” Public Service Electric and Gas gave Tomkins a cash settlement and agreed to set up procedures for sexual harassment complaints, and to put a notice announcing the new policy in every worker’s pay envelope. “A few women like Adrienne stuck their necks out,” says Taub. “That’s how the case law developed.”

By 1977 three pioneer cases argued at the appellate level had confirmed a harassed woman’s right to sue her corporate employer under Title VII of the 1964 Civil Rights Act. From that point forward the EEOC became the most important means of redress, and company responsibility for the errant actions of department heads and supervisors became the key to a lawsuit.

Adrienne Tomkins happened to be white, but most of the
aggrieved women seeking justice in these and other pioneer cases were working class and black. Paulette Barnes was a payroll clerk who sued her employer, the Environmental Protection Agency, after losing her job because she had fended off her white supervisor. Margaret Miller was an equipment operator who had been fired by her white supervisor after a similar hassle. Diane Williams was an African-American public information clerk at the Department of Justice who was hit on by her black supervisor and given a poor job performance rating that led to her dismissal when she refused to comply. Rebekah Barnett, another African-American complainant, was a shop clerk. The phenomenon of black women under sexual siege did not go away after this early flurry of cases. The case of Mechelle Vinson, a bank trainee, would become the subject of a Supreme Court ruling in 1986. Black women were significant at every stage in sexual harassment law.

It’s interesting to speculate why so many of the courageous litigants were women of color, just as it’s interesting to ponder the significance of lesbian feminist leadership in the naming and launching of sexual harassment. I’m inclined to believe that neither phenomenon was totally accidental. I believe lesbian feminists, the angriest of the angry, initially saw unwanted sexual attention by men with greater clarity than
their heterosexual sisters and were less of a mind to be persuaded that it was vaguely complimentary or basically trivial. And black women, emerging from a history of slavery, segregation, job discrimination, and sexual abuse, were fighting mad. Doors were beginning to open for them, and then,
bam
, the same old story, opportunity turning to ashes. The success of race discrimination complaints during this time may have encouraged women of color to pursue their rights in cases of sexual harassment.

The first cases to get a sympathetic hearing by the courts were basically “boss fires worker after she rejects his demand for sex,” and the first Hollywood movie to deal with sexual harassment mined the same territory. Produced by Jane Fonda’s IPC films, the broadly comedic
Nine to Five
starred Fonda, Lily Tomlin, and Dolly Parton, with Parton playing the plucky secretary who fends off her lecherous boss. The movie’s inspiration had come straight from the
unionizing efforts of Karen Nussbaum, a clerk-typist in Cleveland and an old buddy of Fonda’s from the antiwar movement, who was attempting to organize women office workers through a national network called Nine to Five. Released in 1980, the loopy comedy was a commercial success.

The boss/underling relationship with its obvious hammer of unequal power was only part of the workplace problem. The next logical step in understanding sexual harassment was for the general public, and the courts, to appreciate its lateral dimensions. It didn’t require a lecherous boss to make a woman’s work life intolerable. Often the harassing culprits were her coworkers, whose forms of hazing—taunts, catcalls, practical jokes, plastering her work space with pornography, sabotaging her projects, etc.—seemed less driven by libido than by the desire to drive her out of a male preserve.

Two key developments took place in the waning days of the Carter administration. In September 1980, the
Merit Systems Protections Board, a regulatory agency seldom in the news, released the findings of a questionnaire distributed randomly to 23,000 male and female federal employees. Of the 21,000 who replied, Merit Board chair Ruth Prokop told Congress, 42 percent of the women and 15 percent of the men reported at least one incident of sexual harassment. Ninety-five percent of the harassers were men, whose actions ranged from outright
sexual assault to garden-variety offenses: sexual jokes and pressure for dates, touching, pinching, disturbing letters and phone calls. To the surprise of those who had created the survey, a majority of the harassers, 60 percent, were roughly on the same job level as their targets. Unsurprisingly, only 2 percent of the victims had made a formal complaint. “This was the
first decent methodological study,” says Freada Klein, an adviser to the project who had pioneered work on sexual harassment in Boston.

One happy thrust of the Carter presidency had been the appointment of Eleanor Holmes Norton to direct the Equal Employment Opportunity Commission. The civil rights lawyer took her understanding of sexual harassment with her. “
When I came to the Commission, there were a few good court cases but everything was tentative,” Norton remembers. “Frankly, the floodgates never opened, and I thought I knew why. In sexual harassment there is so much risk in stepping forward, plus most women did not understand it to be a violation of federal law. I became convinced that the best way to get rid of it was to make employers proactive. That
meant more EEOC guidelines. So here comes Norton with some more guidelines.”

Two weeks after Ronald Reagan’s landslide in the November 1980 elections, Norton seized the initiative and issued her new guidelines. Released as her EEOC tenure was about to expire, her terse one-page memorandum stated that sexual activity as a condition of employment or promotion was a violation of Title VII, as was the creation of an offensive, intimidating, hostile working environment. Verbal abuse alone might be sufficient proof of damage.

“Prevention is the best tool for the elimination of sexual harassment,” the EEOC memo advised. Employers were urged to develop their own guidelines, complaint channels, and sanctions, inform employees of their rights, and take steps “to sensitize all concerned.” With the wind at their backs and the responsibility resting squarely on their shoulders, major corporations began summoning experts like Freada Klein to set up sensitivity-training programs and harassment guidelines.

While a law student at Yale,
Catharine MacKinnon had learned of the Cornellians’ work on behalf of Carmita Wood. She also had a family
connection to one of the pioneer Title VII harassment cases through her father, who was one of three judges on the panel deciding the case of Paulette Barnes (although Judge MacKinnon’s concurrence attempted to narrow its scope). The young lawyer went to work on a book,
Sexual Harassment of Working Women
, which was published in 1979 by Yale University Press. Its timing was premature for a full-dress treatment of “hostile work environment,” but the academic volume made effective use of the early quid pro quo cases to weave some impassioned theories that ventured far beyond questions of job discrimination.

MacKinnon seemed to suggest that sexual harassment was a paradigm for the power imbalance of the male-female sex act, or perhaps the sex act was a paradigm for the inequality of male-female relations. She was oddly dismissive of government attempts to regulate workplace harassment, because, she wrote, regulation smacked of “
repressive impositions of state morality.” In her words, “
Inventing special rules of morality for the workplace would institutionalize new taboos rather than confront the fact that it is
women
who are systematically disadvantaged by the old ones.” I found the book obfuscatory and dense; its author was more impressive as a speaker. In 1986, when the Supreme Court heard its first sexual harassment appeal,
Meritor Savings Bank v. Vinson
, and ruled in Mechelle Vinson’s favor, MacKinnon was on Vinson’s team under lead counsel Patricia Barry. Possessed of aristocratic features and a magnetic personality that conveyed urgency and earnestness with lithe, physically expressive charm, Kitty MacKinnon won many admirers in the press. Over the years they would convey the impression that she had single-handedly invented, if not quite named, sexual harassment law.
Her identification with the issue was to cut both ways. MacKinnon would acquire devotees claiming her as the leading theoretical thinker on the frontier of sexual justice, and she would gain detractors who perceived her as the avenging angel giving birth, in the 1990s, to Monica Lewinsky and Paula Corbin Jones. Both views were exaggerated, in my opinion.

Sexual harassment simmered on a back burner for fifteen years as one of those “yes, that too” feminist struggles. Then came that memorable Friday, October 11, 1991, when
Anita Hill’s testimony before
the Senate Judiciary Committee erupted on national TV and made front-page news the next morning throughout the country. No one was prepared for the force of the explosion. Demure, poised, and achingly refined in a blue linen suit, Hill had been a last-ditch witness, a card that few wanted to play, in the desperate effort by frustrated liberals to scuttle the nomination of Clarence Thomas, a conservative Republican and an exceedingly weak jurist, to the Supreme Court.

The thirty-five-year-old law professor from the University of Oklahoma, the youngest of thirteen children in a devout Baptist family, had a story to tell, but it was unlike any story that had ever come to light before at a Senate confirmation hearing. A month of exploratory phone calls to her home in Norman, Oklahoma, from various Democratic senatorial aides had preceded her appearance. In the initial overtures from Washington, Hill was assured that a signed statement would suffice and that her name could be kept confidential, but either the aides were playing cat and mouse with her or they were woefully ill advised. As Thomas’s confirmation loomed as a near certainty, Hill grew stronger in her resolve to step forward. She signed a “personal statement” that was shown to a few committee members, and then to Clarence Thomas, who filed a sworn denial. Next, Hill’s name and a portion of her allegations were leaked to
Newsday
and National Public Radio. Perhaps she still could have backed off, gone into hiding, but Anita Hill did not think that Clarence Thomas possessed the judicial temperament to be a Supreme Court justice. So she pushed aside her natural reticence to face the klieg lights and relive events from the first term of the Reagan administration, from 1981 to 1983, when she worked for Thomas, first at the Department of Education and next at the EEOC after Thomas, ironically, was appointed director.

For eight hours Anita Hill kept much of the nation spellbound as she recounted her troubling time in government service under the man President Bush intended to place on the highest court in the land: Over a period of three years, Thomas had subverted their professional relationship by pestering her for dates and assailing her with an intermittent stream of crude banter. He had mortified his young assistant with descriptions of big-breasted women having sex with dogs in bestiality movies, suggesting she might benefit from watching the films, and had
referred to his penis as Long Dong Silver in a braggadocio claim for his sexual prowess. Unable to discourage his sexual importuning, Hill was hospitalized for five days with acute stomach pain that she attributed to the stress. In her version of the story, it appeared that Thomas seldom missed an opportunity to steer the office conversation toward sex. Once, reaching for a can of soda, he exclaimed, “Who put the pubic hair on my Coke?”