8 reasons your sexual harassment investigation is better than the Clarence Thomas-Anita Hill investigation

Many, many years ago, as an associate, I got to help defend the worst harassment investigation of my career. The entire investigation went essentially like this: MANAGER: "Lucy [not her real name] says you sexually harassed her. Is that true?" ACCUSED: "I ain't crazy." *End of investigation.* Oh. Except that the manager documented it, too. *Head slap* .

 In this manager's defense, he was not in Human Resources, and sexual harassment was a relatively new thing at the time, and employers didn't quite know what to do with it. AND THIS MANAGER WAS NOT A UNITED STATES SENATOR. In my spare time over the past two weeks, I've been watching the second-worst harassment investigation I've ever seen: the 1991 Senate hearings on the confirmation of now-Justice Clarence Thomas. Oh. My. Gosh. I got into this because of the new documentary coming out about Anita Hill, which has been getting mixed reviews.

*For those of you who are too young to remember, when Supreme Court Justice Thurgood Marshall announced his retirement in 1991, President George H.W. Bush (the dad, not the kid) nominated Clarence Thomas to fill Marshall's seat. The Senate completed confirmation hearings, and Thomas looked like a shoo-in, until word got out that one of his former employees, Law Professor Anita Hill, was alleging that Thomas had asked her out for dates and had made explicit, sexually inappropriate, comments to her. (They are not suitable to recount for a family blog, so I will just link and will not quote.) Thomas categorically denied every one of Hill's allegations.

The Senate had to reopen the confirmation hearings to investigate these allegations. Thomas at the time of his nomination was a judge for the U.S. Court of Appeals for the District of Columbia Circuit, and had been head of the EEOC and, before that, head of the Civil Rights Division of the Department of Education. Anita Hill worked for Thomas at the Department of Education and the EEOC, and then went into academia. The alleged harassment took place in the early 1980's, when Thomas and Hill worked together.

Vice President Joe Biden, then a Senator from Delaware, was Chairman of the Senate Judiciary Committee.

Thomas was eventually confirmed, 52-48, and continues to serve on the Supreme Court to this day.

Now that I've watched (most of) the hearings, of course I want to write a book. But instead I will limit myself to pointing out eight ways that you are better at investigating sexual harassment allegations than the U.S. Senate Judiciary Committee:  


1. You are interested in the truth. Not the Judiciary Committee, and this is its big, overarching, uber-screw-up. Everybody, Republican and Democrat, had an agenda. "What do you expect, genius? This is Congress." I know. As an employer, if you had a strong motive (desire to please the boss, money, whatever) to ensure a certain outcome, then you would turn the investigation over to somebody else. To me, the biggest lie in the whole Thomas-Hill thing was the statement, repeated by numerous Senators, that Thomas and Hill were, of course, both intelligent, beautiful, and wonderful people. Intelligent and beautiful? Yes. But both wonderful? Nunh-unh. One of them was a big liar and a perjurer. Thomas's categorical denials made no middle ground possible. You would have known that. 2. If you have a conflict of interest, you get out. Not the Senators! The late Sen. Howard Metzenbaum (D-Ohio), upon hearing Hill's allegations, reportedly said, "If that's sexual harassment, half the senators on Capitol Hill can be accused." This presumably included the late Sen. Edward Kennedy (D-Mass.), whose nephew was battling rape charges at the time, based on an incident that allegedly occurred at the family's beach house in Florida. Talk about a motive to tread lightly! (The Senator's nephew was eventually acquitted.)  


3. You follow all leads. Out of a desire to get the Thomas nomination squared away, the Committee rushed to get the hearings started instead of taking a couple of weeks to gather reliable evidence. Then, once started, they failed to call witnesses who might have had corroborating information. You would never do such a thing. 4. Faced with an intelligent and attractive accuser with no obvious motive to lie, you would not accuse her of suffering from "erotomania." Senators, on the other hand, apparently equate "credibility" with "insanity." 5. You don't talk; you listen. You would never "interview" witnesses the way Sen. Orrin Hatch (R-Utah), the late Sen. Arlen Specter (R-Pa.), and our Vice President did, which was by doing all the talking and not giving the witnesses a chance to say much of anything. (On the other hand, fair is fair: Sen. Hank Brown (R-Colo.) asked Hill about whether she was motivated to defeat Thomas because of his political views, and although he didn't get too far, his questions were certainly legitimate.)  

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  6. If the evidence cuts both ways, you don't assume it cuts only in favor of one party. Hill had testified that Thomas made comments about a certain porn star, whose name is not suitable for work. Sen. Hatch brandished a court decision from a few years earlier in which a sexual harassment plaintiff claimed that her boss made statements about this same porn star. Hatch used the information to discredit Hill's story, but it was also possible that the porn star was simply well known to everyone in the porn-watching community. It did not necessarily mean that Hill had fabricated her allegation. Hatch also found a passage in The Exorcist (the book, not the movie) that was similar to another obscene comment that Hill alleged Thomas had made. Hatch said that this cast doubt on Hill's story, but it is just as possible that Thomas got the idea from the novel. You, as an HR professional, would know this. 7. You would give sufficient weight to the fact that Hill had no obvious ulterior motive. The alleged behavior took place in the early 1980's. Hill never filed a charge or lawsuit against Thomas, so she had no apparent financial motive. She never challenged his appointment to the D.C. Circuit, which you'd think she would have done if she'd just been a nut who had delusions about Thomas and was out to get him. She claimed that she came forward in connection with the Supreme Court nomination only because she was asked to do it and felt an obligation to tell the truth once asked. Assuming she was not mentally ill (and if she was, why did she not try to sabotage Thomas much earlier?), why else would she put herself through such an ordeal? Although a political motive was suspected, and Hill admitted to disagreeing politically with Thomas, there was never any evidence that Hill was strongly partisan. (Of course, it's possible that someone promoting her testimony was.) In fairness, some of the Democratic senators pointed this out, but I think they could have been more forceful in doing so. You certainly would have been. 8. Your office politics may be bad, but just spend a few hours watching the pros. Have mercy!   Given the poor investigative protocol and the political shenanigans, it does not surprise me that the Thomas-Hill investigation was "inconclusive." "I guess we'll never know," they say. Based solely on the hearings, and not on allegations that came to light later, I could not tell, either.  


On video, both Hill and Thomas were pretty good witnesses. Hill was weak on explaining why she followed Thomas (the alleged harasser) to the EEOC when he got his appointment there. She testified that she thought she had no other good employment options, but I didn't really buy it, especially when she admitted she (1) had not asked her new boss at Education whether she could stay there and (2) did not look for any job in the private sector. Thomas struck me as overplaying the "victim" card. He also seemed really nervous, but I guess anyone in his shoes would have been. If you had been in charge of this investigation instead of the Senators, we might know what really happened. To watch the hearings yourself -- and they really are fascinating -- go over to C-SPAN where the whole thing is archived. Just type "Anita Hill Clarence Thomas" in the "Video Search" field.   Other Constangy publications from the past week that may interest you: By Zan Blue and David Phippen, "Implications of Northwestern NLRB Decision Could Extend Far Beyond Labor Relations" Do not miss this one!   

Robin Shea has 30 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act). 
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