In contentious debate, Hill defends laws on harassment

Anita Hill LAW ’80 sat quietly smiling, as she was introduced to the audience at the Law School Auditorium Saturday morning as a professor of Social Policy, Law, and Women’s Studies at Brandeis University. But within the first five minutes of her address, she finally gave the members of the crowd what they likely had been waiting for.

“Most of you are probably wondering, ‘At what point is she going to raise the issue of the hearings of 1991?’” Hill said, referring to her 1991 confirmation hearing testimony that now Supreme Court Justice Clarence Thomas had sexually harassed her. A quiet but distinct collective intake of breath among the crowd was audible.

“Two minutes,” she promised.

But Hill had much more important issues to discuss than old scandals, and only referred to Thomas in a few jokes.

Hill was on campus as a participant in a panel called “Inventing Rights: Yale Law School and the Law of Sexual Harassment,” one of the 50 events scheduled over the weekend to celebrate Yale’s Tercentennial. Catharine MacKinnon LAW ’77, among the early leaders in sexual harassment law; Jeffrey Rosen, Legal Affairs Editor of The New Republic; lawyer Deborah Ashford ’81; and Yale Law School professors Vicki Schultz and Judith Resnik joined Hill for the discussion. The panel rapidly evolved into a contentious debate between the members of the “old guard” in the relatively young specialty of sexual harassment law — most strongly defended by MacKinnon and Hill — and the newer-school theorists who hope to modify the terms of the discourse, represented by Rosen and Schultz.

“What distinguished the debate from others I attended was that there seemed to be more lively debate among the panelists,” Sarah Sherblom ’04 said. “It wasn’t clear exactly what the path the debate was going to take.”

MacKinnon began the discussion by expressing satisfaction over the development of sexual harassment law, which she said offers the only real hope for equality in relations between men and women. But she cautioned that although the law has so far “dodged the bullet of freedom of speech,” it may have to struggle to survive against legal and political attack.

Ashford followed MacKinnon’s celebration of the law with the optimistic announcement that the concept of sexual harassment is going global.

“Across cultures, social classes and national borders, behavior is changing,” Ashford said.

Hill’s argument primarily focused on the need now for real societal change beyond the law. She called for further public engagement, access, awareness and recourse to the laws about gender harassment.

Schultz launched the attack on what she called a “sexual paradigm” that merely serves to divert attention from “more common, non-sexual forms of gender-based hostility.”

Instead of sexual harassment, Schultz said, the law should be focused around preventing exclusionary harassment “along gender lines” that is designed to “keep ‘work’ as a preserve of masculine dominance.”

Schultz was joined by Rosen in hoping to revise the traditional definition of sexual harassment. Rosen described such law as part of a general erosion of privacy over the last quarter century. He said companies are so frightened of being liable for creating a “hostile work environment,” which is the legal standard for what constitutes sexual harassment, that they are led to invade their employees’ private e-mail correspondence and telephone conversations.

“Privacy protects us from being judged out of context in a world of short atention spans,” Rosen said. “We need privacy in order to be human.”

And then the discussion got much more heated. MacKinnon began her argument against what she referred to a “species one and species two of denial” — the arguments of Rosen and Schultz.

“Why doesn’t Jeff Rosen understand?” MacKinnon asked the audience rhetorically.

Cyd Cipolla ’04 was taken aback.

“People were literally yelling at each other,” Cipolla said.

But MacKinnon had the last word.

“Sexual harassment law has not clouded our vision about gender-based discrimination,” she said. “It has allowed the possibility of our seeing it.

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