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Not just men behaving badly
Not since Anita Hill's testimony threatened to cut short Clarence Thomas' Supreme Court aspirations has the term "sexual harassment" received the kind of public attention it is getting today. In recent months a seemingly endless parade of women has accused President Bill Clinton of sexual misconduct. In addition, the Army's highest ranking enlisted man, Gene McKinney, was charged with, then acquitted, on several counts of sexual harassment. The issue is the subject of several cases currently before the Supreme Court. Meanwhile, Hill, Gloria Steinem and others have weighed in on the op-ed pages of the nation's newspapers offering their assessments of what sexual harassment is and, more often, what it isn't.
In the conversation below, Deborah Rhode, the Ernest W. McFarland Professor of Law, whose recent book Speaking of Sex addresses the issue of sexual harassment and other forms of gender inequality, talks about the complex issues involved in the recent public discussion.
SR: What is your definition of sexual harassment?
DR: The courts have recognized two forms of sexual harassment. Quid pro quo harassment: unwelcome sexual advances or demands it doesn't have to be explicit, it can be implicit as well. And workplace environmental harassment: conduct that creates an intimidating, hostile or offensive working environment. To establish the latter claim, you have to show that it's severe and pervasive.
It's really not clear that the allegations that have been most in the public spotlight, even assuming they're truth, would make out a case for sexual harassment. You also have to show that you suffered job-related detriment, and given the facts that we now have it's really quite unclear whether any of the individuals who've been making the most publicized claims against President Clinton could show that.
Now whether or not the conduct technically constitutes a violation of Title VII [of the Civil Rights Act of 1964] isn't the only issue. Certainly, for politicians in public office to make unwelcome sexual advances is deeply problematic. And even if the individuals, as in the case of Monica Lewinsky, did not find them unwelcome, certainly there are other workers in the environment who, if the facts were as alleged, might feel favoritism had affected the allocation of important employment opportunities.
SR: Does it matter whether a job is unpaid [as in the cases of Lewinsky, an unpaid intern, or Kathleen Willey, a White House volunteer]?
DR: No. Although it matters for purposes of damages. It's going to be easier to show that you suffered if you were denied a promotion or an appointment to a paying position than a volunteer position.
But there are also issues of moral character and credibility that are implicated. It's reasonable to ask that somebody occupying an office like the president's behave in a way to maintain his moral authority on a variety of issues. And while this isn't the only basis on which we should judge a president after all, there is certainly no straight line correlation between sexual fidelity and performance in office historically, standards and expectations of the American presidency have changed. Most individuals would view at least some of what seems to be well- established patterns [as] unacceptable in a politician running for an office like the presidency.
SR: So what should the public response be?
DR: I think you have to put it in context. People are so perplexed by the fact that Clinton is still doing well in the polls and doing well among women. I don't find it perplexing at all. First of all, there is no single woman's point of view on this issue. Women are half the population. They have a range of reactions. But most reflective women put it in the context of his position on a wide range of issues that they care about. On many of those, Clinton has been better than the alternatives.
SR: So does that account for the difference between the response to Clinton and to, say, Clarence Thomas?
DR: I think that's part of it, certainly. But also, the allegations came out about Clarence Thomas before he was appointed, while you still had a chance to say, "Is this person qualified to hold another position which requires somebody who has a great deal of moral authority and credibility?"
SR: The president of the United States is charged with enforcing the law.
DR: Agreed. If the facts are as alleged, they raise troubling issues. But I do think you have to put them in context. There are a lot of others in this whole set of public allegations, including [Whitewater independent counsel] Ken Starr's conduct, that we ought to be putting the spotlight on. The nation has a limited supply of saints, and how many people are going to want to run for office if their entire personal lives are on display? I have some real reservations about how the special prosecutor has behaved here; how the press has behaved. And it's not just men behaving badly. There is a lot not to like in how women have behaved.
I think we should be holding Clinton accountable on the large issues. Let's get him for welfare reform, which has thrown millions of women particularly women of color and their children into life-threatening circumstances. And that to me reflects a more serious moral failing than some of what's alleged in terms of extramarital sexual activity.
SR: You talk about how women don't speak with one voice, but the media portray the mainstream women's organizations as being inconsistent on this whole thing.
DR: "Feminists are taking a powder on this" was the party line. If you look, feminists have been outspoken and they have a range of views. NOW has issued a number of statements. Some of the articles that have been most critical of feminists for not taking a public position then proceed to quote five feminists who are exceptions. How many feminists does it take to make a rule?
It is simply inaccurate to suggest that there's a double standard here based solely on a political litmus test. There are other bases on which the Clinton allegations and the Thomas allegations are distinguishable, apart from the fact that one is good on women's issues and one isn't. Feminists had been right out there calling for the resignation or impeachment of Senator [Bob] Packwood, who was very good on women's issues, when it became clear that the factual allegations established a pattern of abusive conduct. You don't have that same level of proof here with Clinton in terms of unwelcome sexual activity. You've got a lot more reason to doubt the credibility of some of the witnesses that have come forward than you did in the case of Anita Hill.
DR: She was called to testify; she had no motive to lie. And certainly when the initial allegations were made, it was not at all clear that this was going to be a career-enhancing experience for her. Now sometimes virtue is its own reward and she's done OK in the end, but that wasn't clear at the outset by any means. And it was a deeply humiliating experience for her.
In these [recent] cases, you have women who at least to some extent have voluntarily come forward in one instance and in another instance have lied under oath. [Lewinsky] has made totally inconsistent statements sometimes under oath. Paula Jones has aligned herself with people who are clearly subsidizing her representation for political reasons.
SR: Some argue that the same was done for Anita Hill.
DR: There's just no evidence of that. The facts don't establish that. People rallied around her after it became clear that the Senate was not even going to give her a hearing. She had no history of a political agenda. She'd worked for this man; she'd worked for conservative Republicans.
SR: What about Kathleen Willey? The media have portrayed her as being more acceptable, palatable or defensible to women's organizations than Paula Jones.
DR: Yes, I think there is certainly a class bias. Kathleen Willey looks the part of a woman wronged to a greater extent than Paula Jones. It's regrettable how Paula Jones was pilloried. Whatever you think of the truth of her allegations, the way she was presented both by defense counsel for the president as "trailer trash" and by the media, there was a lot not to like there as well. But you know, Willey's conduct is not entirely above reproach. She certainly had no compunctions about trying to turn this into a lucrative venture once her name got publicly linked. So whether she initially sought the publicity, she certainly cultivated it. And there's a lot of questions about the veracity and credibility of her testimony given other evidence of her conduct around the time.
SR: In Speaking of Sex [published in 1997], you described the Jones lawsuit as "harassing."
DR: I must say that that was written at a time in which you did not have as much corroborating evidence about some aspects of the Jones allegations as you now do. But it is the case oftentimes that just floating allegations can be extremely damaging to individuals, and the cost of defending them both psychologically and financially can be substantial. I think women have to recognize that there is the potential for abuse, and that some women and men on occasion do abuse it. But those cases are relatively rare, and the point that is important to keep in mind is that only a tiny fraction of sexually harassing experiences result in any kind of formal complaint. Over 90 percent of complaints overall never end in a victim making a report and for good reason. The costs for individuals who are targets of this activity are usually quite substantial. In the surveys in studies which I talk about in the book, most women think that bringing a complaint made things worse, and with good reason. We still victimize victims in a lot of these contexts.
SR: What about the Gene McKinney trial in that regard?
DR: That was a criminal proceeding, so the standard of proof is beyond a reasonable doubt. It's a very high standard to meet.
SR: What would you say to women who see the results of that trial?
DR: That's been the history of the military's reaction to sexually abusive conduct. That's not atypical in light of their history. I think attitudes have changed substantially, and the fact that the military went forward with the prosecution is some sign of partial progress. But it does point up the real difficulties of trying to prove this kind of conduct in cases where inevitably much of the activity occurs in private. It's he said versus she said, and that's not going to make it beyond a reasonable doubt in most criminal proceedings.
SR: After the Hill/Thomas hearings, it seemed that people were starting to take the whole issue of sexual harassment seriously. Do you think that will continue after all this?
DR: For centuries women have been harassed and it was only a problem for them. Now men in positions of power have to worry as well, and that's a good thing. You've seen a lot of responses by institutions to implement policies and procedures and training programs that are dealing with the issue at the preventive level. And that's a sign of enormous progress. We're still as a country, trying to sort out where the boundaries are, and these cases are clarifying in some respects.
By Elaine Ray