Speaking Truth to Power - Anita Hill [85]
In his opening statement Senator Biden decried the problem of sexual harassment and other forms of gender-related abuse or violence. “Sexual harassment is a serious matter,” he began. Senator Biden insisted that “any person guilty of this offense is unsuited to serve not only the Nation’s highest court, but any position of responsibility, of high responsibility in or out of government.” Pausing, he further declared that “sexual harassment of working women is an issue of national concern.” But a simple pronouncement could not make sexual harassment a national concern, much less the concern of some members of the Senate Judiciary Committee whose only objective right now was the confirmation of Clarence Thomas.
With that statement, however, Senator Biden set the stakes for the Republicans. He had declared that a harasser was unsuited for the Court. Thomas’ supporters were thus challenged to show that he was not a harasser. To do that, they would have to establish either that the acts I complained of were unoffensive or that I was simply fabricating the story. For the most part, the Republican senators chose the latter. While, on the evening before the hearing, Senator Biden had spoken about neutrality, Senator Thurmond apparently exclaimed, “Thomas is innocent, and we’re going to prove it.”
Biden was correct in his assessment of the severity of the widespread problem of sexual harassment in the workplace. Sexual harassment is a form of employment discrimination as defined in the EEOC guidelines and by case law. A party with a sexual harassment claim first files a complaint with the EEOC. That agency investigates the claim according to its own guidelines. Where warranted under the investigation, the EEOC can bring a suit against an employer or individual accused of sexual harassment. Alternatively, the agency can issue a right-to-sue letter which allows the individual to sue on her or his own behalf. For two decades prior to the hearing the problem of sexual harassment had been addressed under Title VII of the Civil Rights Act.
But as correct as Biden was in denouncing the problem, he was equally incorrect in assuming that the hearing about to convene was a proper forum for addressing it. From the sounding of the first gavel opening the hearing on October 11, the process was flawed. First, the committee had no experience in or rules for evaluating a claim of sexual harassment. Second, the committee had no rules for conducting the proceeding and chose instead to make the rules on an ad hoc basis, as the hearing evolved. Lack of experience and procedure detracted from the ability of the committee to reach a rational conclusion. Consequently, members of the committee resorted to one thing they did understand: partisan politics.
Though Senator Biden asserted that the committee had convened to hear evidence on charges of sexual harassment, he chose to deviate both from the EEOC guidelines governing investigations and findings of cause in such claims and from the procedures for hearing such claims developed in courts of law. In his opening statement Senator Biden declared first that standard rules of evidence would not apply to the hearing and second that Judge Thomas would at all times be given the benefit of the doubt. “The presumption [of truth] is with you, Judge Thomas.” This presumption meant that if it were a case of my word against his, his would always be better. The EEOC guidelines presume nothing of the kind. In fact, those guidelines direct that the parties start as equally credible and that the balance is tipped by such things as contemporaneous declarations to other parties.
As Senator Biden put it, “this [was] an extraordinary hearing.” Thus, he reasoned, the rules of law generally used for limiting questions, making speeches or statements, arguing with the witness, or even excluding irrelevant testimony would not