Welcome

Anita Hill Cut Path to #MeToo as Barriers Persist 30 Years Later

Oct. 22, 2021, 8:46 AM

Anita Hill said the legal concept of “sexual harassment” wasn’t widely understood, before she famously testified to an all-male Senate committee in 1991 that Clarence Thomas repeatedly made inappropriate comments and pressured her to date him while he was her boss.

Hill’s testimony didn’t stop Thomas’ confirmation to the U.S. Supreme Court 30 years ago, but it helped bring awareness to pervasive sexual harassment in the workplace, inspired more women to come forward, and resulted in some federal policy changes.

“She shone a light, we saw a flash, and over 30 years we have seen discrimination continue at home and in the legal system,” said Justine Andronici, a Pennsylvania-based attorney who represents sexual harassment plaintiffs. “We are still grappling with the challenges that she helped us to see.”

Many legal and systemic barriers remain in place, even with the widespread attention to the issue brought about by the #MeToo movement, academics, advocates, and employment lawyers say.

“There is no easy fix to the problem of sexual harassment in the workplace or other forms of gender-based violence,” Hill writes in her latest book, “Believing: Our Thirty-Year Journey to End Gender Violence.” “Responses coming out of the courts are not keeping up with the reality and severity of the problem.”

Hill, currently a law professor at Brandeis University, alleged at the time that as chair of the U.S. Equal Employment Opportunity Commission, Thomas discussed sex, pornography, and the size of women’s breasts. She also said she feared he would retaliate against her because of his persistent advances. Thomas denied the allegations.

Hill’s allegations against Thomas came only a few years after the Supreme Court had issued a 1986 ruling that found sexual harassment should be considered illegal under Title VII of the 1964 Civil Rights Act.

Her testimony surfaced ideas about the fear of retaliation and power dynamics that allow harassment to perpetuate, which have been central in accusations against powerful figures in recent years. It also mirrored testimony that later followed against another Supreme Court nominee, Justice Brett Kavanaugh, who also was confirmed in 2018 after a high school acquaintance testified that he assaulted her at a party when they were both teenagers.

Hill says in her book that many current approaches don’t work and shift responsibility for ending the problem away from leaders.

“For example, insisting that survivors and victims can control bad behavior by standing up to their abusers, telling them that their problems will be solved if they report into processes that are stacked against them, and pledging to get rid of a few bad apples are all forms of denial, none of which have been effective solutions,” she said.

Ripple Effects

After Anita Hill’s testimony, there was an uptick in charges of sexual harassment being filed and changes to civil rights laws, including updating damages available to accusers, said Fatima Goss Graves, president and CEO of the National Women’s Law Center.

“You can’t look at the last three decades and not see a cultural movement or shifts in the laws, but I am reminded of the deep and important work that remains,” Graves said.

Companies, federal and state agencies, and lawmakers have attempted to take aim at harassment at work. States have passed laws in recent years addressing pay equity, limiting non-disclosure and arbitration agreements, and easing standards for bringing lawsuits.

Under Title VII, workers must prove that the harassment they faced was either severe or pervasive, which makes it difficult for accusers to prevail in court, employment attorneys say. Also, independent contractors are left out of those legal protections and employers with 15 or fewer employees aren’t covered. A $300,000 damage cap has remained stagnant.

Arbitration and non-disclosure agreements can keep the cases and accusations out of the public eye, and advocates have said these contracts can perpetuate harassment.

“The stakes for an individual to raise an issue of harassment are very high,” Graves said. “Basically, your willingness to come forward risks your life forever being changed, and that’s not something everyone wants. We should have a built-in process so that you shouldn’t have to be a public figure to name a problem of harassment.”

Many companies, however, have updated their reporting and internal investigations processes, in response to the #MeToo movement, said Debra Katz, a Washington, D.C.-based civil rights lawyer, who has represented accusers in high-profile cases, including against former New York Gov. Andrew Cuomo and Hollywood producer Harvey Weinstein. She also represented Kavanaugh accuser Christine Blasey Ford ahead of his confirmation hearings.

She also said the New York attorney general’s investigation into harassment allegations against Cuomo provides an example of progress, including that women were able to back each others’ claims that demonstrated an alleged pattern.

“We have seen powerful people be terminated for this kind of behavior. That sends a strong message with companies and to employers,” Katz said.

Federal Law

Federal law and court precedent still create barriers for accusers, said Carrie Baker, a law professor at Smith College, who teaches about sexual harassment.

“Social change happens slowly, sexism and racism is embedded in social behavior,” Baker said. “The law is weak, and the courts make the law.”

Cynthia Grant Bowman, a law professor at Cornell University, who specializes in feminist legal studies, remembers explaining to the public on television in 1991 what sexual harassment was after Hill came forward.

She said there were positive ripple effects, and the moment led to many complaints being filed. It’s become more commonplace to discuss harassment law, which allows women to have a better sense of what they should or shouldn’t tolerate, Bowman added.

But harassment continues, she said, “From every day stuff to structural stuff.”

“Changes in the law didn’t really help. It requires a huge kind of sea change in culture and an understanding about the relationship between the sexes,” Bowman said. “When it comes down to it, it hits me that there is a great deal of misogyny out there. It’s a deep strain that is often impervious to legal remedy.”

To contact the reporter on this story: Erin Mulvaney in Washington at emulvaney@bloomberglaw.com

To contact the editors responsible for this story: Seth Stern at sstern@bloomberglaw.com; Jay-Anne B. Casuga at jcasuga@bloomberglaw.com

To read more articles log in. To learn more about a subscription click here.