June 2, 2014

50 For 50: Five Decades Of The Most Important Discrimination Law Developments

Number 21:  From The Courts To Pop Culture — Sexual Harassment In Hollywood And The News

It is tough to determine the precise moment that sexual harassment went from something that Hollywood “did” (the ubiquitous “casting couch”) to something that Hollywood exploited as story-line.  But over the five decades of the civil rights act, harassment through unwelcome sexual behavior has gone from conduct unimagined by Title VII founding advocates, to fodder for movies, television series, political intrigue, and countless headlines and editorials.  Sexual harassment is the most common subject of workplace training, yet remains the most misunderstood and challenging of subjects for employers and employees alike.  Its inherent themes of power, respect, and morality, its necessary inclusion of heinous sexual crimes of assault and stalking at one extreme, and at the other end of the illegal spectrum, sexual innuendo and compliments, makes for confusion and debate, requiring employer exercise of judgment and leadership far beyond the letter of the law. 

Prior to 1986, sexual harassment was not readily identified as part of the broad protective sweep of Title VII.  But with Anita Hill’s Senate Judiciary Committee Hearing testimony concerning the alleged conduct of then-Supreme Court Justice nominee Clarence Thomas, a sea-change occurred.  Hill’s allegations went from the base (including Thomas’ self-references to his sexual prowess) to the bizarre (public hair on a Coke can).  Almost overnight, the phrase “sexual harassment” became part of our national lexicon;  instantly, according to Equal Employment Opportunity Commission filings, sexual harassment cases more than doubled, from 6,127 in 1991 to 15,342 in 1996. Over the same period, awards to victims under federal laws nearly quadrupled, from $7.7 million to $27.8 million.

The Hill – Thomas confrontation foreshadowed the charged and acrimonious political landscape of today; lost amidst the sound and fury of the strange allegations concerning an even stranger Supreme Court justice is the historically resonant fact that Thomas had been nominated to replace retiring Supreme Justice Thurgood Marshall, a giant of the Civil Rights movement, the architect of legal strategies that paved the way for racial equality and the achievement of the very law that we honor through this special series of blogs.  Sexual and racial politics, presidential legacies, and over two decades of the “silent” justice all took form and direction from Anita Hill’s quietly powerful testimony.

Hollywood was quick to latch onto sexual harassment as a way to sell tickets.  Before the Anita Hill – Clarence Thomas spectacle, the movies dabbled with the topic in creative, perhaps less serious ways (e.g., Dustin Hoffman’s Tootsie); after Anita Hill, the thematic approach took on a more serious tone, as in the Oscar-nominated North Country (2005), and the less critically acclaimed, melodramatic Disclosure (1994) depicting the harassment of Michael Douglas’s character by a power-wielding Demi Moore.

When it comes to sexual harassment and politics – the politics of sex, and of power – it often seems that the more things change the more they stay the same.  Riding a wave of Tea Party activism, Republican Party Presidential Candidate Herman Cain led the polls in late October 2011. Fewer than six weeks later, on December 3, 2011, he suspended his campaign following a series of allegations that he had engaged in past sexual misconduct with female employees, conjuring up memories of Paula Jones’ claims that in 1991, Bill Clinton, then-Arkansas governor, sexually harassed her.

We have, of course, made enormous strides in understanding and preventing sexual harassment, moving from the Mad Men era of the 1960s, when discrimination and harassment on the basis of gender was open and unabashed and legal, to education, empowerment, and enforcement concerning victim’s rights and the fight to achieve an equitable workplace free of hostility.  But only so many paradigms can shift in a short five decades, and as recently highlighted in alarming statistics concerning sexual misconduct on college campuses, the interplay of harassment, gender equality, and fair access to work and academic benefits remains a necessary focus of civil rights legislation and advocacy.

Category: EEO,