By Katrina Dewey | December 16, 2018 | Lawyer Limelights, News & Features
Photos by Ken Richardson.
Before #MeToo,there was Anita Hill.
In 1991, the scholarly law professor told her story. Of her early years as a lawyer in Washington, D.C., working for a powerful, ascendant government lawyer.
How he acted. What he said.
How she felt.
She had worked so hard to become a lawyer. From small-town roots in Lone Tree, Okla., one of 13 children, she graduated from Oklahoma State University and then Yale Law School. After one year in private practice in D.C., she got what she thought was her big break. She became an advisor to Clarence Thomas, then Assistant Secretary of the U.S. Department of Education’s Office for Civil Rights. She joined him when he became chairman of the U.S. Equal Employment Opportunity Commission in 1982.
She testified before the Senate Judiciary Committee in a watershed hearing that opened the doors on sexual harassment. We learned the words for things that were happening in workplaces from restaurants to fancy law firms. And we learned we were not alone.
She, meanwhile, returned to being a somewhat quiet but candid law professor at the University of Oklahoma College of Law. Over the last 27 years she has been interviewed and written widely, including her necessary book, “Speaking Truth to Power.” She is now of counsel at Cohen Milstein and a Professor of Social Policy, Law, and Women’s, Gender and Sexuality Studies at Brandeis University.
The last time the majority members of the Senate Judiciary Committee themselves questioned a woman in uncomfortable circumstances was their attack on Hill. The generation of women entering the workplace with high hopes of equality and achievement watched Hill’s grace and determination and we vowed never again.
She was lecturing at the University of Idaho Law School in October 2017 when the reawakening occurred. She remembers it well because news of Harvey Weinstein broke near the anniversary of the 1991 hearings. In the year since then, of course, another powerful, ascendant man was nominated and confirmed to the U.S. Supreme Court.
Lawdragon: Do you recall how you felt, where you were when the Harvey Weinstein story broke? I can’t imagine being you watching the emergence of the #Metoo era into the broad public consciousness.
Anita Hill: When I really absorbed the full brunt of the Harvey Weinstein story, it was October 11 or 12 and I was in Idaho doing talks at the University of Idaho Law School, which is split between Moscow and Boise. I was traveling and realized that it was the anniversary of the hearing from 1991. The whole idea of sexual harassment becoming part of the public discourse was heavy on my mind.
One of the two sessions, at least, was really about 1991, but more importantly what we’ve learned since then. So, of course when I heard about the Harvey Weinstein story and all of the people who were coming out, I thought not just about him but really about a culture that seemed to accept him and systems that were put in place to protect him.
It all reminded me, one, that we’ve been through this before. We thought that we had resolved the issues. And to some extent we’ve made headway, we’ve made some gains. But we still haven’t resolved all of the problems. Because many of the things that were coming out have happened clearly since 1991. As more and more of the stories came out, I realized that a whole new generation and eventually young men as well were living through the experience of sexual harassment as much as I had in the workplace.
LD: I graduated law school in 1986 and it was shocking to me in 1991 what you had experienced early in your career, in the early ‘80s. We know comparing harassment is never productive, yet the Weinstein story felt as though your experience from an earlier era had metastasized and become so much larger and more grotesque, if that’s possible.
AH: You used the word metastasized. I think of these kinds of abuses more like they’re viral, so they go through a period where they are being confronted and people are doing things. And just like a virus, people are developing immunities to it or having a response to it. But then it turns into another generation of the same problem, and it gets stronger. So, it goes around and, for a while it seems like the virus is at least reduced, if not eliminated.
But then it comes back in almost like a fuller force – and that’s exactly what we’ve learned from the Harvey Weinstein revelations - that it came back in a stronger form in part because there were now systems in place that hadn’t been in place in the 1990s. And those tools or systems included these mandatory non-disclosure agreements that sort of mushroomed in the 1990s after the Supreme Court decision allowing mandated arbitration.
Of course, there’s always been arbitration, but employers putting these clauses in their contracts had grown. And those had been sanctioned by the law. So, where people had stopped accepting sexual harassment as normal behavior, all those things were good and true. But we hadn’t anticipated that there would be formalized a way of avoiding the consequences of harassment or even avoiding being held accountable at all under the law.
LD: Twenty-seven years after you testified in Clarence Thomas’ confirmation hearings, it seems ironic that while your experience helped shape laws that protected from harassment and discrimination, it also led to structures that protected harassers. Maybe ironic is not the right word.
AH: Right. Well, it was a response. I believe there’s a reason that these kind of agreements were not in place before to effectively change the way we’ve enforced civil rights law. The reason they weren’t in place is because we did see a rise in the number of complaints. People started taking advantage of the law that was there to protect and so as a counter to that, the forces that weren’t really interested in change, that weren’t interested in the kind of accountability that was becoming possible, developed around putting in place ways to avoid that accountability. I don’t think it was an accident. I think it was a reaction. You can call it a backlash, but whatever it is, we know that the law is really a tool and it’s the tool that gets used that often undermines other laws.
And that’s what we are witnessing. So, for all of the social movement that was occurring, there was a legal movement response to it. I think, though, what we have started to come to terms with in this generation is that it’s not legally helpful in the ways that people thought. These ideas that we should sort of push aside or try to cover up or hide these violations rather than confront them.
We’re starting to learn that it’s not helpful to do so. We’re starting to learn that there’s real harm that is being done to individuals. There’s real harm that’s being done to our workforces. And that, then, ultimately, the people that have been trying to avoid these consequences, their organizations are harmed and they’re being harmed. That there are losses that are incurred because people in their workforces are sexually harassed. And the losses are not just about litigation costs. The losses are due to the reception and the effectiveness of the people who exist in the workplace.
To put it another way, no one gains when harassment exists in a workplace. You might ultimately think that somehow there might be some gain from it, but when you do all of the calculations, you realize that harassment harms everyone. We’re seeing that play out in a big way, whether it’s Fox News with Roger Ailes, or some of the other media companies that have had to deal with reputational losses as well as financial losses in the wake of #MeToo.
LD: What do we do about the law – it’s like policing the police, you know? How do we get the law to police itself and to really provide a fair workplace for everyone?
AH: I think the law evolves. We’ve got to challenge it on different fronts. I talk about the differences that have come into play to protect harassment. We now have different systems that are coming into play to protect our workforces against harassment. And that involves shareholder suits, plaintiff’s litigation, victim’s litigations. It also involves rules and resolutions by the ABA such as Resolution 302 that was passed last year. [It expands a policy adopted in 1992 with new components for enforcing protections against harassment and retaliation based on gender, gender identity and sexual orientation.] There was ABA Rule 8.4G [defining harassment as misconduct]. So those are tools.
And I believe that the law, in terms of what the courts are saying, is also evolving. I would also add that I understand that the federal court system has put together a committee to evaluate harassment policy within the judiciary. All of these things have to happen, because we’re not talking about individual behavior. Of course, we’re addressing individual behavior, but we’re also understanding how the systems have been working to undermine the law.
The more we know about how to confront this in a systemic way, the more effective I think we will be. That’s one thing that’s different from what happened in 1991. We really didn’t understand the problem from a systemic point of view. We responded from a behavioral point of view. And yes, it was important that we pass the Civil Rights Act of 1991, that was a start, but to a large extent it was still legislation that was to protect an individual from another individual’s behavior. It didn’t challenge the systems that were in place.
We’re just at a different place now in our understanding of how entrenched a problem it is that we’re addressing.
LD: Let’s take the case of the disgraced former 9th Circuit Judge Alex Kozinski as an example of the power structures in law. A case like Judge Kozinski - and manifestations of that as it has been addressed in the media and by the federal judiciary - it really can maybe enlighten us about some of these entrenched power structures and what it takes for individuals to be heard sometimes. Which I guess you know better than anybody.
AH: Absolutely, the Kozinski case is a case study on why don’t people come forward. Well, how do different cultures suppress people from coming forward? The story that was told about the Kozinski situation was that what happens in judicial chambers is very private and it’s sort of, I won’t say entirely secretive, but it’s held closely by the people who are in that chamber. They rely on each other.
And if you listen to what was being said about it, you find that in other cultures, too. It’s not just that it exists in the judiciary. Those kinds of close relationships exist in workplaces all over. And that then cultivates a culture of silence that is harmful to anyone who has a claim; that culture gets imposed. And we see that over and over again.
We also see in those cultures a real threat of retaliation. And I’m not saying direct and deliberate always, but sometimes. So, for example, the people who work in Judge Kozinski’s chambers needed references. And so, if they start to complain, Judge Kozinski probably isn’t going to say – I’m putting words in his mouth, I won’t. Judge Kozinski or someone else in this position probably will not likely say, “This person brought a sexual harassment complaint against me.” They’re more likely to say, “Well, maybe this person isn’t a good team player.”
And so that is what you hear and you never get the full story. But reputations can be ruined because of the way the culture supports keeping bad behavior a secret. So, I think there’s a lot to learn from this example. And I think there are lessons that apply not only to the judiciary, but I’m hoping that when it’s all said and done, other people will understand that these are happening in workplaces all over. You could say the same thing about a law firm, because the bar is relatively small in most locations.
LD: It is.
AH: And so a person may leave because of a problem they’re having, but they may choose not to disclose that problem because they realize that they’re going to need references or at the very least, they’re going to need for partners in the law firm not to give them bad references. There are lessons there.
There are also lessons from academia. The National Academy of Sciences just did a big report on sexual harassment and sexual misconduct in the Academies of Science, Engineering and Medicine. And when you look at that report, what you see is some of the same kinds of issues and practices that go across professions. And also some of the different systems like professional organizations that can either help stop the behavior or that can become complicit in it. So, we’re learning as a society how we can engage to get rid of these problems of conduct in our workforces. But what I think is that the law has a special obligation to really foster that learning, model that learning to be an example. We are sworn as lawyers to uphold the law.
LD: Right. That we as lawyers should be leading this.
AH: We should be leading it. And we should be modeling it. And not only modeling it for our own workforce, but modeling it for our clients and the society at large.
LD: For students or young people out there thinking about what profession they can enter to be treated fairly and make a difference, can law really be that?
AH: Absolutely. And for litigants who are coming before the court. Understand that this is a judicial system that treats people fairly internally.
LD: That you’re not before a judge who’s harassing his interns.
AH: Harassing his interns or in any way assuming that they are above the law that they’re then trying to impose on people who come before them.
LD: I hate to ask you to go back to the Brett Kavanaugh hearings.
AH: Yes, but it’s important.
LD: Did you experience a sense of deja vu watching the Kavanaugh hearings? And did you find yourself questioning whether it was worth it for you to have gone through what you went through?
AH: No, I have learned over the past 27 years not to necessarily compare my situation with others. I don’t think it’s fair to anyone. What I’ve learned in the cases that I’ve looked at is just the experiences that I’ve heard about even from the #MeToo movement is that we each deserve to be treated as our own story. And so, I didn’t see it necessarily as deja vu in the sense of my being compared to Christine Blasey Ford. But, I did see a sense of deja vu in terms of senators and their conduct.
And I do want to make that clear. Because what I saw were the same – in some cases the very same people – being resistant to even acknowledging the importance of the testimony that was about to be given. And certainly then to respond in virtually the same way as in the 1991 hearings – it was really not anything like what one would describe as fair and impartial. Though they may have had doubt, they felt they could move on and really not move from any position they had before they put her through the testimony and the whole process.
LD: Absolutely. And one of the things that struck me while watching after having read your book is that while I think that the media narrative of the hearing changed, progressed perhaps, from 1991 to 2018, as did some other things incrementally, the thing that had probably changed the least is how the Senators treated her.
AH: I’ll call it the sham of bringing in someone to question her instead of doing it themselves. That was just sad. That they had avoided responsibility or accountability by bringing in a woman to ask tough questions, was just being irresponsible and neglecting their duty to her as a witness as well as to the general public. Because the general public has a right to know what their representatives are saying and thinking and to hear it from them. Not from some party that they delegate their work to. It was just irresponsible and it was an insult really to the process and to the American public that was listening to it. But certainly an insult to any of us who have ever been a witness before the Senate and any of us who has ever experienced sexual violence of any kind.
If they couldn’t stand and face the American public and ask the questions that they wanted to ask, maybe the question shouldn’t be asked at all.
LD: Because some of the things that they obviously asked you, and also approached with her, are kind of unspeakable. To be treated as though you were doing something wrong because you were questioning this great man, right? When you were just telling your experience.
AH: Right, and I think even before they brought Christine on to testify and before they brought me on to testify, there was a clear indication that they didn’t believe that they should have to even be bothered with this. Because to them one important man has chosen another important man and that should be the end of it.
LD: How would you envision it working and what difference could it have made if sexual assault experts were added to the testimony?
AH: Not to question her, but to help the public understand what sexual assault survivors go through. How difficult it is; why for example, a girl who is 15-, 16-, 17-years old would be afraid of coming forward and why that would live with her for her entire life. There were different ways that they could have approached this. But they chose none of the better ways, and chose all of the ways that were just cowardly and unhelpful and I would say dereliction of their duties to the American public. Let alone to the witness.
LD: The tableau was presented as a kind of he said-she said, and so to your point, having sexual assault experts come in as witnesses would have changed or modulated the entire tone.
AH: With the whole concept of he said-she said most people who investigate these kinds of claims know that these situations rarely are just one person’s word against the other. You do a thorough investigation, you will be able to provide context, you will be able to provide circumstances surrounding a charge, you will be able to weigh motives and none of that was possible in the way that the questioning took place. And also, the fact that they limited the investigation afterwards to make this sort of his word against hers, they only interviewed two people. Christine Blasey Ford and Brett Kavanaugh.
To set up that dynamic, so the American public is left with that belief that there’s never a provable claim. That is really dangerous, that has a potential for silencing witnesses. When you’re dealing with a situation like the Kavanaugh hearing where the public has been impressed for weeks with what an outstanding individual he is, and he has been endorsed by political leaders and others in the room - in the hearing room, in the public school room - the chances that she will be believed are severely limited.
LD: That’s right. As with your hearings, Kavanaugh came in already cloaked in endorsement from those in power. So even with a good effort, it’s very difficult to create a fair environment to get to the facts.
AH: And even if she is believed, his importance, his stature, his position, his nexus to power; very often it says, “But it’s more important for him to be able to continue on with his career and his ambition.”
LD: Right. Not what about hers?
AH: And, tragically, the court and the integrity of the judicial system suffers.
LD: That was, one of my takeaways that day, obviously thinking of you, is the impact the Kavanaugh hearings will have on this generation of women, and of young women entering the law. Like you, I’m from a small town and one of my best childhood friends, her daughter’s now going to UVA Law School. And her daughter has worked so hard and is embarking on the legal profession. After the hearings, she tweeted something like when will this ever stop? And it’s what I would have written had I been able in 1991. Because as women, and as people in the legal system, we see both what you said about the man in power being moved forward by other men in power, and the woman and a woman’s viewpoint on this being completely shut down.
AH: Well, absolutely. And then the sort of charade of giving the woman a space to talk. It only amplified how the balance of power lies with, in her case, her detractors. And so, we’ve got a long way to go but I will say that I do not believe that we’ll see the majority members of that committee as reflecting the sentiment of the American public.
And not even the majority of the American public, certainly not a significant portion of the American public. And I believe that not only were we offended, but I think the public will respond. They will respond politically and if 1991 is any indication, women will be elected because people in general will feel that they are more representative.
LD: I think it was the week after the Kavanaugh hearing I was in New York and there was a grey-haired couple walking by me and the woman had on her parka a good old-time political button: “I believe Anita.”
AH: I have had lots of support since then because it did resonate with people and they did look back and think about what 1991 was and what it meant. And I would say that after the hearings of 1991, a significant majority, 70 percent or so, of people believe that Clarence Thomas should be confirmed. It’s simple as that; some of them believe that because they thought it was his right, some believed because they thought I had lied and that I was insignificant in terms of the grand scheme of things; and some believed that behavior that I had testified about, even if it were true was insignificant.
And the surveys now after the Kavanaugh hearings show a very different feeling amongst the American public. And I think that is the emerging sense of what’s happening and what should be done and how we should be addressing these issues. So that gives me hope. It’s not instant, it’s not even immediate satisfaction, but it does give me hope.
LD: That’s what we need because otherwise we give up.
AH: Yes, we give up and then we wonder what might have happened if we hadn’t given up. If we had just something that we could hold onto that would allow us to keep pushing until we got change.
LD: In addition to sexual harassment experts as witnesses, what should be the other key changes?
AH: I will say that I am convinced that the Senate Judiciary Committee’s process could have been different. That they could have had a thorough investigation, they could have had it done by a neutral party. It didn’t have to be done and controlled by the White House whose interest in confirming their nominee is clear. So, that could have been done, to bring in investigators who have not only been informed about sexual assault, but also about trauma investigations. What are the right questions to make sure that you have all of the information that you need to get to what is a reasonable and documentable conclusion.
And I’d pull back the lens a little bit and remind people that when you’re dealing with the U.S. Senate and they are asked to hold someone accountable for sexual misconduct, you are dealing with a body that has not itself been subject to accountability for sexual misconduct. There is no rule governing the U.S. Senate. Those members are not accustomed to the whole idea of accountability.
LD: It’s so sad when you put it that way. Because the way that the hearings were set up as she said-he said, with Brett Kavanaugh mustering his fiery defense for the audience of one in President Trump who himself got to office over multiple assertions and facts of sexual harassment, in front of Senators who are accountable to nobody except the electorate.
AH: I’m also deeply troubled by the use of language that was absolutely inappropriate in this setting. This is a political proceeding, and to interject language about innocent until proven guilty into that political proceeding, was, I believe, a denigration of the whole concept – which lawyers know applies in a criminal proceeding where there’s a risk of loss of life or loss of liberty, where the government might in fact take away a right from an individual. We need to protect this idea of innocent until proven guilty in the concept of a criminal proceeding. To guard against wrongful prosecution. We need it. It should not be used as cover for political choices that people make.
So when you have the senators using it, it’s really dangerous on two fronts. It’s dangerous in terms of its use as political cover, but it also reduces the integrity of the concept when it comes to criminal proceedings where it rightly belongs. And so that language I found, as a lawyer, quite offensive. I also found it offensive as an individual who’s seen how important it is and believes in its importance in criminal proceedings. To sort of use it loosely and sort of throw it around without regard to where it should be used was again one of those things that the Senators started to use whatever they had, not to get at the truth. But to cover for their own inadequacies.
LD: That explains better what was so troubling about the standard. The Senators set up the she said-he said context, and then they interject a standard where she said-he said means there is no …
AH: He wins. That he wins.
LD: Right? Guilt beyond a reasonable doubt.
AH: Right. And so, all of this is again the wrong message from our elected officials about the experiences that happen to women and to which they can find no recourse. Either political or legal in many cases. And I can’t tell you how many people I have encountered who felt that very deeply that they did not have the right that other people had, that their rights were not being honored in the way they should have been in that political arena. And whether or not that was going to then extend to other arenas as well is a real concern that’s out there.
LD: But I assume that the people who have come to you, it’s because women and others who’ve experienced assault and powerlessness are now speaking up and feeling the impact of #MeToo. And that is fusing with political movements in a way that could portend political change.
AH: It might and if history’s any indication, it will. And maybe we’ve already had some indication of that in this election. It’s hard to know how much of the activity was linked to Kavanaugh or within the candidates or just the times or what was the source of people’s energy for getting out to vote in November and some of the choices that were made. It’s hard to know where that came from. But it’s also not unthinkable that some of it came from the Kavanaugh hearing.
LD: As with 1991, people really cared about the hearing, and having watched the horrible sausagemaking of it where - as it neared hindsight - it felt that “Oh my God, we just fed her through the blender for a show where it looked like she/many of us were being heard but ultimately were not.”
I think you’re right there is hope because people watched again this year with their own eyes and felt even if this came out as it did, there was greater awareness that the way the Senators treated her was wrong. I think there’s more focus on how to not let this happen again. But I don’t know. I fear it will happen again.
AH: I think there is cause for hope, but let’s not underestimate ourselves. The awareness of the problem of sexual violence in all of its forms from harassment, verbal harassment, to psychological harassment, to physical harassment to sexual assault and rape, the awareness has just been increased in the past decade I would say. We are a different public than we were in the 1990s and certainly than in 1991.
I think we as a public take it more seriously and we’re willing to learn what it is we need to know because we know this happens, and we know victims of this. And we can think of October of 2017 for reminding us that these stories are true and they’re real and they’re happening and they have happened to someone near you.
And so if people ask me has anything changed? I say well, certainly some people in the Senate Judiciary Committee haven’t changed, but we have changed, we have changed. The public has changed since 1991. Now, we just have to figure out what that change means. And whether it is that we are willing to make what some people think are hard decisions about what the consequences should be. And what our systems need to be to catch up with that change.
LD: So would you say you’re still an optimist about the law’s ability to lead in this arena?
AH: I’m optimistic because I know that among lawyers, there are many people who believe that and are willing to take it on.I am realistic enough to know that we’re not 100 percent behind this. That some of the cultural myths or social myths or biases that cultivate the problem exist within our rank. So I know that.
But I also know that we have gone through change in the past. The practicing bar has been out doing work. For example, the Lawyer’s Committee for Civil Rights was organized around members of the practicing bar getting behind the protection of civil rights in the Kennedy administration.
So we have examples of how we have done this historically. Even to organize a whole set of institutions of lawyers around the country and nationally. We’ve done this before. So that gives me hope. And it doesn’t mean that every lawyer got behind the Lawyer’s Committee, but a lot did and continue to. So I always look for some evidence of why I should be hopeful.
But I look at examples from the past. We have many lawyers in civil rights organizations, not just the Lawyer’s Committee, but it strikes me as the model not just because I’m on the Board of the local bar Lawyer’s Committee but also because it was an effort to engage, not only civil rights organizations, but the practicing bar as a whole and the ABA was very involved with it early on. So we have some examples of when we’ve stepped up to change the way the world is operating and to put all of the skills and the tools that we learn as lawyers behind that positive change.
LD: Which is what these times call for.
AH: Absolutely. Absolutely. You cannot look at the numbers – whether it’s the number of women lawyers who have been facing sexual harassment, and all of that is contained in the guidebook that’s done by the ABA. But also if you look at just the way society has been impacted. If you look at not only the statistics, but also if you look at the anecdotal evidence, the quantitative and the qualitative evidence suggests that we now have a problem that rises to the level of a great social concern if not a health and safety problem in our workforce. And we should be responding with laws.
I keep reminding people we’ve learned a lot in the last 30, 40 years. But there’s still some pockets that we haven’t confronted. We still have yet to understand - whether it’s in law or in society - the interactions of other identity factors, other than gender, on how people experience harassment and how they are responded to by society. There’s a study that has not to do with lawyers, but women of color astronomers and harassment of women of color astronomers and discrimination in general. But what they found was that women of color astronomers were more likely to experience sexual harassment than white women astronomers. And they were more likely to experience racial harassment than men of color astronomers. Now that’s a small study, but I think it’s worth looking into and we just don’t have the evidence.
Plus, the law is not necessarily geared to try to figure out what do we do about people who are being discriminated against on multiple factors? And so we’ve got a ways to go and more to learn and to me, that’s not a reason to quit. It’s a reason for us to double our efforts.
LD: I wholeheartedly agree. The size of the problem and its very many facets can’t stop us from working toward a solution and a better day.
AH: Exactly. You can’t just throw up your hands and say, “It’s too big. There’s too many problems.” That’s not the option that we can afford to take.