It came, as swift and violent as a summer storm, full of sound and fury, sudden booms and awful flashes. And then, just as suddenly, it was over. The Senate voted 52-48. Clarence Thomas became associate justice of the U.S. Supreme Court. Anita Hill returned to the tenured security of Oklahoma. Only the debris remains.
Innocent or guilty, Clarence Thomas bears much responsibility for the storm—and for the debris. The reason lies not in any alleged improprieties but in the ideas and policies he aided and abetted at the EEOC. It was Thomas, after all, who successfully urged Reagan administration Solicitor General Charles Fried to argue before the Supreme Court for a more expansive concept of sexual harassment. The case of Clarence Thomas is a case of poetic injustice.
Based on the testimony of the women who worked for him, I believe Thomas is telling the truth—that, far from graphically discussing sex with his female employees, he deliberately and systematically stifled the unthreatening banter that enlivens many offices. He is, by these accounts, a man who adopted not only in law but also in practice the feminist notion that any mention of sex by a man in front of a woman constitutes potential harassment, an offense equivalent to outright discrimination.
Ultimately, Thomas was saved by his obsession with propriety and by his accuser's behavior toward him—behavior that suggested friendship rather than fear. He was saved. But no one else is safe. Contrary to the pious pronouncements of Thomas's supporters and opponents alike, the very concept of verbal sexual harassment is dangerous, to men and to women and to free institutions. It is, as Thomas said of the ordeal to which he was subjected, not American.
As Congress turns its attention once again to civil-rights bills that include punitive damages for such harassment, we should take to heart the real lesson of the Thomas hearings. In a country where words are a crime and where innocence must be proved, yet cannot be, the law becomes a tool for the venal and the vindictive. And we are all in peril.
Consider some of the circumstantial evidence brought against Thomas. He had, at times, been alone in an office with Anita Hill. He had, at least in college, watched pornographic films and later entertained friends with humorous accounts of them. Above all, he could bring no witnesses to testify that they had personal knowledge that he had not harassed Anita Hill. No one had been with him 24 hours a day. No one could prove the negative. No one ever can.
Thomas's trial was held on national television, and it was, of course, not a real trial. Politics entered in. And the public had a vote. If Thomas was saved by the evidence, he was also saved—as Robert Bork was doomed—by the dependence of Southern Democrats on their black constituents. Those constituents saw the danger and unfairness of Thomas's ordeal. They did not need his outraged cries of high-tech lynching to remind them of two centuries of black men falsely accused of sexual misdeeds.
In this way, Thomas was lucky. He had a jury of 250 million. His hearing wasn't behind closed doors. That was bad for his reputation but good, ultimately, for his future. Most men accused are not so fortunate. Women can hurl unsubstantiated charges, and there will be no Southern senators to protect the innocent.
The courts have imposed a radically subjective standard for what constitutes sexual harassment. It must be "unwelcome." Not threatening. Not intimidating. Simply "unwelcome." If some nerd asks an uninterested woman out more than once, that's harassment. If somebody uses a four-letter word she doesn't like, that's harassment. If someone discusses the Howard Stern show, that's definitely harassment.
If we are going to force the courts to read minds, it would make far more sense to examine the intentions of the accused rather than the mental state of the accuser. To harass someone, after all, is to deliberately give her a hard time. It is teasing combined with malevolent intent and carried to the nth degree. But the very act of teasing ought not be a crime, or a career-destroying civil offense.
Feminists like to claim that "sexual harassment is not about sex—it's about power." The truth is a bit more complicated. First, sexual harassment is very clearly about sex. Lots of bosses harass their employees in nonsexual ways. They make them run personal errands. They berate them in front of other employees. They play favorites. But these actions are not illegal, nor should they be.
And if sexual harassment is about power, the power works both ways. Women can cry harassment at any time, giving them enormous power to blackmail co-workers or supervisors. Antidiscrimination laws let women push their way into job sites, private clubs, even locker rooms. And, once there, sexual harassment regulations let the most sensitive women force their standards of propriety on their colleagues.
None of this is good for women. The furor over sexual harassment teaches men that women are simultaneously extremely fragile and extremely dangerous. Any little thing can set us off. And once we're offended, we can ruin your life.
The wise man will, therefore, never be alone with a female colleague, least of all behind a closed door. That means no manager-to-manager discussions of personnel or budgets, no confidences, and no confidence. It means the workplace becomes once again a boys' club, where the real work is done by men and women are there just for decoration.
Feminist theorists picture the ideal workplace as a sterile environment devoid of humor and cut off from employees' social lives. In this brave new world, no one ever dates a fellow employee and no one ever laughs. Everyone just works.
Yet at the same time, every boss spends all his or her time worrying about the emotional states of employees. Workplace mores (and possibly work itself) are determined by the internal state of the least stable and most hypersensitive employee.
During the Thomas hearings, there was much talk of the importance of encouraging women to come forward with sexual harassment charges. Thomas's opponents now wring their hands about how hard the Republicans were on Anita Hill. They didn't treat her like a lady.
And that is as it should be. We should not make it easy to accuse people of wrongdoing. We should not place the burden of proof on the accused, even if they are men. And we should not be indulgent with accusers, even if they are women.
This article originally appeared in print under the headline "Poetic Injustice".