One of the most pernicious ideas in American life is that sexual harassment lawsuits are an example of political correctness gone mad.
For the last few months I’ve been working on a video series for Highline, a re-examination of all the things we got wrong in the 1990s. The first episode is about the sexual harassment freakouts that cropped up in the wake of the Anita Hill hearing and what was really behind them.
Here’s a sequence that didn’t make it into the final cut, four women testifying at a 1992 Congressional hearing:
This is why we have sexual harassment laws.
Before 1986, none of these stories would have been illegal. Until Meritor Savings Bank v. Vinson, the only workplace discrimination that fell under the law was quid pro quo harassment, the kind where your boss explicitly tells you that if you want this promotion, you’ll have to sleep with him. Skeezy comments about your looks, getting groped at the water cooler, being told you had to meet a higher standard because of your gender, all that was just the cost of being a woman at work.
The most incredible thing about these cases, though, isn’t just the shittiness of the people perpetrating them. It’s the narrow-mindedness of the people in charge of punishing them.
Reading old sexual harassment cases, what you see over and over again is judges who simply couldn’t accept that women were blameless in their own abuse. One victim testified that she been assaulted by her boss for three straight years, that he touched her under the table during work meetings, that he bought her dinner her first week on the job and invited her to a motel afterward. The judges were skeptical. What was she wearing? Why did she go to dinner in the first place? Didn’t she eventually give in and have sex with him? Surely his advances weren’t that unwelcome.
This is how members of Congress treated Anita Hill too. If Clarence Thomas had been such a terrible boss, they asked her in 50 different ways, why did she later ask him for a reference? Despite all the alleged harassment, Arlen Specter pointed out, she never once complained to Thomas’s superiors. She even—gasp—picked him up at the airport once, years after they stopped working together.
It’s fascinating to me all the ways in which societal power is invisible to the people wielding it. For old, white, affluent judges, it simply didn’t make sense that a woman would have sex with her manager unless she really wanted to. Congress members couldn’t comprehend why a woman would maintain a relationship with her dickhead former boss, why she would wait years before publicly complaining about his behavior, why she would read aggression into his flirting and his backrubs and his ribald anecdotes.
I don’t think every judge and every Senator back then was a big old sleazebag. What I do think is that they suffered from a specific form of blindness, one that is human and understandable and utterly pernicious. We are all, in ways major and minor, incapable of seeing the world through anything but our own example. If you have never feared unemployment, the moral compromises others make to avoid it seem foreign. If you have never been hurt by jokes about your gender or your race or your sexuality, those who complain about them seem oversensitive.
Somehow, in the 25 years since the Anita Hill hearing (and, as I argue in the video, the passage of the 1991 Civil Rights Act), sexual harassment has become a synonym for a country that can no longer take a joke. Colleagues can’t even ask each other out for a drink nowadays. Managers can’t pat their employees on the shoulder.
But in fact, sexual harassment cases have been dwindling for years, and the mechanisms behind them have been steadily eroded. Since 1991, punitive damages have been capped at $500,000. Those eight-digit settlements you’re always reading about? Companies only have to pay a fraction of them. A study in 2002 found that more than half of large punitive damages awards got overturned on appeal. And that’s for the cases that make it to court. The vast majority of them don’t.
The real problem, in other words, is not that we have all become oversensitive. It is that we are not sensitive enough.
I am sure that, in this big and crowded country, someone somewhere has filed a frivolous lawsuit claiming to be sexual harassed when they weren’t. But becoming the country where that happens is not what we should fear. It is becoming the country that we used to be—one where no one is allowed to file them at all.