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Georgetown Law professor Susan Deller Ross was the only member of Anita Hill’s 1991 legal team who had experience in sexual harassment litigation. Hill and Ross discuss the climate around sexual harassment at the time and reveal new information about the hearing.
Anita Hill
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Speaker 2
A subject so many Americans have to confront, sexual harassment.
Speaker 3
Women were calling and clogging the switchboards.
Speaker 4
The question being asked, just where is that line between friendly relations and sexual harassment?
Speaker 2
It was hard to believe it was happening. A Supreme Court nominee on the verge of confirmation being called back to answer charges that he had once made unwelcome sexual comments to a female...
Perhaps not ever has so much turned on a single hearing.
Anita Hill
There are a couple of things you need to know about how I came to be sitting in front of a nationally televised hearing of the Senate Judiciary Committee on October 11th, 1991. First I crafted a statement for the FBI about working with Clarence Thomas at the EEOC where he sexually harassed me. Then that statement was leaked to the press.
Speaker 5
National Public Radio has learned that the woman brought her accusation to the Senate Judiciary Committee last month.
Anita Hill
And finally after a public outcry, Senator Joe Biden subpoenaed me to testify. I had three days' notice. Remarkably, my legal team somehow came together.
Susan Deller Ross
For one thing, when we first talked, it was not even clear they were going to do anything. We really didn't know whether they were even going to consider it.
Anita Hill
That's law Professor Susan Deller Ross. She's an author and she is the director of a women's human rights clinic at Georgetown University. Ross is one of the women who pioneered the field of sexual harassment law. It wasn't until 1986 that the Supreme Court ruled sexual harassment a civil rights violation. Five years later when I testified that Clarence Thomas had sexually harassed me, it sparked a national conversation, one I never anticipated. Luckily I had Susan Deller Ross as part of my legal team. She was the only one of us who had experience with sexual harassment litigation.
Susan Deller Ross
Somebody on the Senate Judiciary Committee called me up and gave me a hypothetical and said, "Would that constitute sexual harassment?" And I said, "Well, yes." I thought it would. And he said, "Can you send me a memo that would describe what sexual harassment law consists of?" And so I said, "Yes, I'd be happy to do that." And I sent a memo. And then a few days later I got another call, this time saying there was an actual person behind this hypothetical. The person speaking to me said, "Would you be willing to speak to this person?" I said, "Yes, I'd be delighted to."
Anita Hill
Of course, the person behind this hypothetical was me. I'm Anita Hill. This is Getting Even, my podcast about equality and what it takes to get there. On this show, I'll be speaking with people who are improving our imperfect world, people who took risks and broke the rules. In the last episode, you heard from Sukari Hardnett, one of the witnesses who wasn't called to testify at the 1991 Thomas confirmation hearing. We talked about how being excluded from this historic conversation impacted her life and the country in the past three decades.
In this episode, Susan Deller Ross and I try to piece together what else was happening behind the scenes, much of which the public has never heard.
You and I talked on the telephone before my testimony and we were trying to figure out what we were going to be stepping into and how we could be heard. We had no notice of what was going on. Senator Biden called the committee back in session to hear the testimony. And he called me, and I have it written down, on October 8th in 1991. I was told that I'd be called to testify before the Senate Judiciary Committee.
Susan Deller Ross
Yes, they announced that there's going to be a hearing, that they're going to ask you to testify, which you didn't know before that day. Then you fly to Washington D.C. and then the very next morning you start testifying.
Anita Hill
There I was in Washington D.C. and I think we were all just shocked by how fast it came about. I was sitting in a conference room and that was the first time we met face to face. And we were there to just try to prepare for what was going to be happening the following day, which was when they told me that I would be called and sworn in to testify.
Susan Deller Ross
That day we really didn't know much of anything. We didn't know who was going to be talking aside from Thomas. We didn't know whether the committee was trying even to investigate.
Anita Hill
Was there ever any real exchange of information about the process and how it would work?
Susan Deller Ross
Not as far as I'm aware. All we were told was that you were going to be testifying first and that I got a call the night before from someone on Biden's staff saying, "Oh no, we're going to switch it. We're going to start with Clarence Thomas", which is peculiar to start with Clarence Thomas rather than starting with you who had the account of what had happened.
Anita Hill
And the switching of the order allowed for Clarence Thomas to testify on prime time morning TV as well when people are still making their way to work and still at home watching. So he had a much broader viewing audience. So it was strategic.
Susan Deller Ross
Yeah, absolutely. And we knew nothing about information they had in their hands, but I gather they had refused to tell you.
Anita Hill
Well, and the hearing was about his character and fitness for the position. There were women who said that they had experienced or witnessed harassing behavior and others knew from their own experience that Thomas was making sexual advances or using the office to assess women who worked at the EEOC for their sexual availability to him. And so there was much that could have been admitted in terms of witnesses. And I'm particularly struck about the lack of willingness to hear from those women who had experienced something similar or even others experiences that went to Thomas's character and his fitness for the position. Did you know about those women?
Susan Deller Ross
No, I didn't know a thing. I don't think any of us did. We didn't learn it until after the fact that there are other women who worked at the EOC who reported a similar experience. I only found it out when I read the transcript of everything after the hearing. That was my first time. And I was so astounded to see how closely their accounts mirrored exactly what you had said. But that was kept from the country. The country never knew that. And it was the chairman who basically said, "We're not going to hear from the witnesses" without explaining what they would've testified to. So the committee kept them from testifying. They didn't allow Sukari Hardnett to testify. They did put it in the record, but nobody knew what it said. And that was because the committee didn't write a report. Committees always write a report after they do their work before forwarding it to the full Senate for a vote.
But there was no committee report assessing the reliability, the credibility of you, of him. People were left to try to piece together what they had seen, which was a totally incomplete set of facts. So there was very clear evidence. The media never reported it on it afterwards. They shut it down once he was confirmed. So many of the senators, they just were trying to get rid of it. They didn't want to talk about it. They didn't want to explore it. They didn't think it was relevant. They didn't care. So the general public has never come to learn exactly what the evidence was that corroborated everything you said.
Anita Hill
After the break, Susan Deller Ross and I pose the question, what if? What if the hearings hadn't been so poorly handled in 1991? What if we had all the information available? What if the public had been offered a better understanding of sexual harassment during the hearing? Where would we be today? You are listening to Getting Even, my podcast about equality and what it takes to get there. I'm Anita Hill and I'm talking with Susan Deller Ross, the only member of my 1991 legal team with experience in sexual harassment law.
Do you think that people had any real awareness even after the 1986 decision by the Supreme Court that sexual harassment was in fact a violation of the law?
Susan Deller Ross
No, I think people were very confused by it initially. The courts didn't treat it as an employment discrimination issue at all. They saw it as sexual activity and it was sort of a boys will be boys, what can you expect? And because the facts are often really atrocious, there's a tendency in media not to cover what really goes on in these cases. I remember hearing people saying, "Oh, I want to be sexually harassed." You don't know what's going on when you say something like that.
Anita Hill
Well, you don't. And I think you're right. It's a focus on sex and not even sexual, but on sex itself, and that being something normal and overlooking the term harassment. And even today when people think about sexual harassment, many people still think that we're just talking about words and we're talking about verbal exchanges and not the psychological and often physical harm that is going on in the workplace. And certainly if we have that today, in 1991 when we sort of jumped into the scene in the Clarence Thomas case, there was so much confusion.
Susan Deller Ross
I think the country would've been even further ahead if it had gotten some real explanation of what sexual harassment consists of at the time. Now, I think there was nevertheless progress, but maybe not as much progress as might have happened if there had been a real attempt to grapple with the issue at hand. One of the things I think really happened was there were a lot of women who were very, very upset about how you were treated and that convinced a lot of women to run for office. President Bush Sr had been vetoing a proposed bill that would expand Title VII to allow victims of sexual harassment to get damages after the hearings. He finally signed because of the pressure the Republican Party was under for having supported a sexual harasser from the women who'd been horrified by watching what had happened. There was publicity around the world about sexual harassment. So I think if we'd been able to have a full presentation of what actually happened with all the sources of evidence that were relevant to the issue, people would've had a better understanding and gone forward. But nevertheless, it did make progress.
Anita Hill
But the fact that there was an impact shows to me one, how people were interested and they needed to know the information. But it also indicates to me that there was a lost opportunity, that there was a powerful platform out there that could have become a model for how to do this right. We might have avoided some things in the future and by the future, I mean between now and 1991, 30 years or so. We might have learned some lessons that could have been put in place.
And I think about all those what if's. If there had been a different kind of investigation by a different body than the FBI or expert witnesses had been allowed, if there'd been less disinformation or information shared so that people could respond, we could respond to the certainly overwhelming number of witnesses that they had. I had wonderful witnesses step up for me to confirm what I had said to them during the time was exactly what I was testifying to. And certainly, of course, the fact that the other women weren't called might have made a difference. But there are still things that are nagging me personally. I wonder, had 1991 been handled differently, whether Christine Blasi Ford's testimony would have resonated stronger or whether the Kavanaugh hearing might have been structured differently?
Susan Deller Ross
Right. I had the same feeling of deja vu. Here we go again. They're keeping out relevant evidence, doing everything they can to shut down what's actually happened.
Anita Hill
So I'm going to ask you, what is that one lesson that we should have learned from 1991?
Susan Deller Ross
Well, I think it is the importance of really trying to find out what happened and being willing to get the unpleasant details out in the open so that people understand what's happening. Because the basic problem over and over in the hearings was a failure to put on all the relevant evidence. There was an, instead, attempt to keep out relevant evidence, to shut it down. And unless you can hear everything that bears on the credibility of what the key parties are saying, there's no chance of finding out the truth.
Anita Hill
Finding out the truth isn't about finger pointing or vindication. It's about giving us a starting point for trying to make things right. As we wrapped up our conversation, Ross reminded me of another memory from a long time ago. Just a few weeks after the hearing, we went to a conference of women elected in offices across the country.
Susan Deller Ross
It was a delegation of state legislators, state women legislators from around the country. We walked in with Anita leading the way, and suddenly all the women rose and they had pink napkins and they waved the napkins in the air. And there was just this round of applause for Anita, such a contrast with what we had faced on the Senate Committee with all those White men, one side overtly hostile the other side sitting quietly and doing nothing.
Anita Hill
It got me through the winter.
Susan Deller Ross
I admire you so much for the courage you displayed and standing up and doing what was right and then your dedication to these issues over the years ever since.
Anita Hill
Prior to the Thomas confirmation hearing, many people didn't know that sexual harassment was illegal. Now they do in part because of the hearing in 1991. But knowing that the law exists isn't enough to get equality. Victims and their allies need to know how to use the law. One thing that struck me after speaking with Susan Deller Ross and Sukari Hardnett, one of the witnesses who wasn't called to testify at the 1991 Thomas confirmation hearing, is that even though the process wasn't perfect, they both said that they would do it again. I feel the same way. I never set out to get mired in a Supreme Court confirmation hearing, but what I did set out to do way back before I ever met Clarence Thomas was to tell the truth and to make our country a more just place. In the rest of the series, I'll be talking to other people who, like Hardnett and Ross, have taken risks to make equality more possible, more tangible, people who I believe we should all be listening to.
Next, I speak with Kimberly Crenshaw, who coined the terms intersectionality and critical race theory.
Kimberly Crenshaw
Race reform has, in this country, always been met with a backlash and sometimes the backlash was more powerful and lasted longer than the reform did.
Anita Hill
Getting Even is a production of Pushkin Industries and it's written and hosted by me, Anita Hill. It is produced by Mo LaBorde and Brittani Brown. Our editor is Sarah Kramer. Our engineer is Amanda Kay Wang and our showrunner is Sachar Mathias. Luis Guerra composed original music for the show. Our executive producers are Mia Lobel and Leital Molad. Our director of development is Justine Lang.
At Pushkin, thanks to Heather Fain, Carly Migliori, Jason Gambrell, Julia Barton, Jon Schnaars and Jacob Weisberg. You can find me on Twitter at Anita Hill and on Facebook at Anita Hill. You can find Pushkin on all social platforms at Pushkin Pods and you can sign up for our newsletter at pushkin.fm. If you love this show and others from Pushkin Industries, consider subscribing to Pushkin Plus. Subscribe to Pushkin Plus and you can hear Getting Even and other Pushkin shows ad free and receive exclusive bonus episodes. Sign up on the Getting Even show page in Apple Podcast or at pushkin.fm. To find more Pushkin podcasts listen on the iHeartRadio app, Apple Podcast, or wherever you like to listen.