All Commentary
Wednesday, January 1, 1992

The Thomas/Hill Hearings: A New Legal Harassment

Richard McKenzie is Walter B. Gerken Professor of Enterprise and Society in the Graduate School of Management at the University of California, Irvine, and John 34. Olin Adjunct Professor in the Center for the Study of American Business at Washington University, St. Louis.

Like millions of other Americans, I was drawn to the television to watch the Clarence Thomas/Anita Hill showdown, i was revolted by what I saw and heard, so much that I could watch in only short doses.

Unlike many of the Congressional orators, however, I was never outraged by the language or incidents described in graphic detail. I have often heard explicit language from female and male colleagues, and even from teenagers. While many reacted in disgust, I suspect that everyone in the heating room was familiar with the sexual particulars being aired. The senators seemed to know exactly what activities were at issue, even though exotic descriptions at times were used. I had to wonder who was acting.

My disgust also had nothing to do with my position on sexual harassment. Then again, it had everything to do with my more fundamental position: No one should have to endure harassment in any form in any place.

It wasn’t until after Thomas’s confirmation vote that I began to understand my revulsion. I had witnessed the perversion not of sex, but of governmental processes and authority. The inconsistencies and contradictions that came out of the hearings didn’t involve the testimony, but the hearings themselves.

Here we had someone asserting that she was harassed by another and calling for Congress to address the matter. But there was little or no hope that any of the claims could be corroborated or validated. The committee members, and everyone else, were being called upon to divine the truth about events supposedly played out behind closed doors—totally private, out of the sight of everyone but God. The difficulty of seeking the truth without objective means was part of the problem. In addition, the alleged events were old, and their descriptions were likely warped by the passage of time.

Given the conflicting tales of woe and the rotating testimonials, it is no wonder polls revealed that Americans rode an emotional roller coaster during that long October weekend. In September, before the Thomas/Hill confrontation, 63 percent of those surveyed supported Judge Thomas’s confirmation. However, on Tuesday of the hearing week, support for Judge Thomas fell to 50 percent, only to rise to 59 percent the following Monday.

I suspect that many people, like me, were upset by the apparent incongruities: One person’s charge of harassment was, in effect, harassing another person. And the charge was being made, not to bring to light Judge Thomas’s alleged transgressions, but because he had become important. To that extent, the Goddess of Justice was being asked to pull down her blindfold and exact punishment based on who the accused was and the position he might hold. As an observer, I was being asked, in the name of justice and fairness, to suspend one of the most fundamental tenets of a good and just society—that all men and women are to be treated equally under the law, not only when they are considered for the Supreme Court.

Professor Hill is obviously a decent, credible, and responsible person in most ways, and her sincerity showed. However, in making her belated charges, she asked us to atone for her failure to expose Judge Thomas’s alleged behavior at the time it supposedly occurred, to believe that there was no political motivation in the timing of her charges, and to make a judgment and take punitive action within the course of a few days that she had been unwilling to make and take for almost a decade.

Professor Hill and her supporters beseeched us to condemn a man with whom she stayed in cordial contact for nearly 10 years, and whom she didn’t report to legal authorities at the time. What a terrible request to make of others.

What Did We Learn?

The lessons from the Thomas/Hill hearings are deeper than sensitizing men to sexual harassment. The most important lesson is that the powers of government are limited because public officials are human, because judicial and Congressional resources are expensive, and because there are limits to how many public resources can be devoted to any purpose. Judges cannot be everywhere and all-knowing. They must be detached, and they must rule by what is objective—what they can see and hear and touch.

It is extraordinarily difficult for government officials, juries, and Congressional committees to make judgments based on the word of one person. This is because the potential volume of complaints based on a single person’s statement will likely exceed the available resources to handle them, and because the person making the charge might be no more honorable—and might be less so—than the person being charged.

Human relationships are murky areas for governments because they are so complex, delicate, and involve millions of facts and variables—few of which are objective. What is appropriate in one context involving two consenting adults might be totally inappropriate when another context or two different people are involved. The minute details of the Thomas/Hill relationship that could not be told in the committee setting, because they couldn’t be articulated (even if they could be remembered) in the time allowed, were crucial to the judgment that senators in the hearing room and Americans in their living rooms were being asked to render.

Regrettably, women’s rights advocates would have us believe that broadening the definition of sexual harassment and dropping the burden of proof would fortify social behavioral norms and legal protections for women. They don’t seem to realize that standards are standards—for all. When applied generally, loose standards of proof are subject to gross abuse—to the potential detriment of women, especially in a male- dominated world.

The Thomas/Hill hearings obviously prompted women to re-examine their own past harassment problems. However, they lowered the standard of what constitutes sexual harassment, causing many women to look upon unwanted and overly aggressive verbal advances as “sexual harassment,” a phrase formally reserved for significant abuses of power relationships accompanied by provable damages.

It is understandable that, as the hearings progressed, the percentage of women claiming to have been sexually abused rose. On October 8, an ABC survey showed that 16 percent of women indicated they had been sexually harassed. By October 14, the number climbed to 33 percent.

Broadening the legal scope of sexual harassment may lead to more government penalties, but it also can undercut the stigma that otherwise would follow the harasser. With a broader definition of harassment, many might assume that the guilty party had done nothing more than make an unwanted advance.

Individual women (and men) always will be the first and most effective line of defense against sexual harassment. Professor Hill, however, apparently took no such action; she even followed Judge Thomas to another job. She never used the first line of defense, if the events she described in fact occurred. As Federal Judge Alex Kozinski recently reminded Wall Street Journal readers: “[W]itnesses, generally believed to provide the most reliable evidence, in fact are highly unreliable. They filter events through the lenses of their biases, perceptions and perspectives; they forget; they embroider; they lie. Perhaps most dangerous is the witness who is firmly convinced of something that just didn’t happen: Imagination insidiously fills in gaps of memory so the witness is able to tell a vivid, detailed and convincing story, but one bearing little relationship to reality.” This is why charges of criminal conduct are best relegated to trials where strict procedural and evidential rules apply.

Sexual harassment charges that are brought for judication must have some objective content, some manifest evidence, some means of clear resolution by outside observers, and they mustn’t be minor. Otherwise, we as a society run the risk of creating a harassment problem—official harassment by the state and devious people who would exploit state powers—that is potentially no less odious than the harassment of one individual by another.

I watched the Thomas/Hill hearings with a growing sense of apprehension. I feared that the American system is being perverted, and that I was observing a new and destructive form of legal harassment. Before the weekend was over, it was plain that both Thomas and Hill had been harassed beyond belief—legally.

  • Richard McKenzie, an economics professor and the Walter B. Gerken Professor of Enterprise and Society, has authored 30 books and is a nationally recognized authority on the Microsoft anti-trust case. His research focuses on economic policy issues. He is currently writing a book on In Search of a Defense of Rational Behavior in Economics.