25 Years in Making Sexual Harassment Claims Since Anita Hill’s Testimony
The first sexual harassment decision was handed down in 1976. But it wasn’t until the 1991 confirmation
hearings of Justice Clarence Thomas that the concept entered national consciousness.
Since women first entered the workforce, the idea of a boss making sexual advances or having a sex-charged atmosphere in the office, were not only completely legal but part and parcel of the workplace. Women who objected were brushed off for lacking a sense of humor. But those ideas were turned upside down and inside out by the Anita Hill hearings. Suddenly a theory emerged that there was such a thing as illegal sexual harassment. The country watched live coverage of Anita Hill (Thomas’s former colleague and a law professor) accusing Thomas of using inappropriate language and sexually harassing female colleagues when they worked together.
The implications of Professor Hill’s testimony has been a lasting one. Claims of sexual harassment began to gain legitimacy and became a significant tenant of the Title VII workplace discrimination laws.* The year after the Thomas hearings, the number of sexual harassment cases filed rose by 50%. Tolerance for “boys just being boys” had come to a head.
According to the Equal Employment Opportunity Commission (EEOC), which tracks workplace discrimination, (and coincidentally where Hill was allegedly harassed by Thomas), sexual harassment claims climbed through the 1990s, peaking at 15,889 in 1997. Claims began dropping off in the 2000s, falling to 11,364 in 2011. However, the full picture is more illusive, as estimates suggest that only 5 to 15 percent of those who feel they have experienced sexual harassment file complaints. Christine Nazer, spokeswoman for the EEOC agrees that the the claims figure do not capture the full scope of sexual harassment. Thus, while the number of people reporting sexual harassment is likely a fraction of those actually experiencing sexual harassment, the numbers also indicate that many of reports of sexual harassment were unsubstantiated. Of the 11,364 claims in 2011, some 6,658 were found to have “no reasonable cause.” That is, more than 50 percent of the claims were thrown out.
Perhaps even twenty-five years after the Thomas hearings, we still have not conclusively come to a consensus on just what is sexual harassment and what it is not. And more importantly, the publicly held definition seems to be distinct from the legal definition. Although many companies now provide employees with sexual harassment training, the vast majority of the training is inept or regarded as a joke.
But there is another part of the story that isn’t told by the statistics reported by the EEOC. The use of in-house arbitration and confidential settlements became standard practice in the early ’90s, when President George H.W. Bush signed into law the Civil Rights Act of 1991, which allowed sexual harassment plaintiffs to receive money for emotional distress and punitive damages. An increase in the number of confidential settlements, which allow an employer to settle a sexual harassment claim privately as an agreement to discharge rights to sue, has meant fewer claims filed with the EEOC. Similarly, when a company includes an arbitration clauses in an employment agreement the employee must bring all complaints to arbitration rather than pursuing litigation or filing an EEOC complaint. This tactic not only decreases the company’s financial liability, but shields harassers and employers from culpability. These institutional and corporate behavioral mechanisms essentially have silenced complainants by pushing their allegations back in the closet and thereby not allowing them to be out in the open and traceable. In the 25 years following the Anita Hill confirmation hearings many companies have found a way to reinforce the system of non-accountability and sweep the issue back under the rug.
*Title VII established two different sets of legal grounds for claiming sexual harassment, the first is quid pro quo. Under the quid pro quo form of harassment, a person in authority, usually a supervisor, demands sexual favors of a subordinate as a condition of getting or keeping a job benefit. The second, is a hostile work environment harassment. A hostile work environment arises when a co-worker or supervisor, engaging in unwelcome and inappropriate sexually based behavior, renders the workplace atmosphere intimidating, hostile, or offensive. This form does not require the threat of termination or lack of advancement.
M. Reese Everson is an Author, Attorney and women’s Advocate. She currently works as a Sexual Harassment Expert, Corporate diversity instructor, and Director of B.A.B.E.S in the Workplace (Beautiful, Ambitious, Brilliant, women of Excellence, Destined for Success), an organization dedicated to helping millennials develop workplace navigation strategies and supporting and empowering women who have been sidetracked and derailed in their careers due to sexual harassment and gender discrimination through rebuilding, rebranding, and retooling.