Top Quotes: “Reckoning: The Epic Battle Against Sexual Abuse and Harassment” — Linda Hirshman

Introduction

“Tanya Harrell was just doing her job at a New Orleans McDonald’s in 2017 when a guy she worked with shoved her into the bathroom, locked the door, and tried to rape her. The only thing the twenty-year-old could do was cry and cry”— “until he heard the manager calling where were we,” she says, “and he finally let me go.”

Harrell wasn’t going to get any help, she knew, because the last time she’d complained that a coworker had harassed her, her shift manager at McDonald’s suggested the touching was consensual. Sure enough, when she told the new manager about the attempted rape, the boss treated her story like it was nothing. Harrell, who had left high school so she could work to pay for the medicine her grandmother needed, could not leave her low-wage job.

One year later, on May 22, 2018, Time’s Up Legal Defense Fund, an initiative founded by prominent women in the entertainment industry, announced that it would be paying for Tanya Harrell — and a dozen other low-wage workers around the country — to sue McDonald’s and its franchisees for harassment.”

“Overnight, her tweet received fifty-five thousand responses, and #MeToo was the number one trending hashtag on Twitter; in the days and weeks that followed, the hashtag caught fire globally. By the year anniversary, the tag had appeared in almost fourteen million public tweets. Within that year, more than two hundred powerful men in entertainment, media, politics, education, tech, and more had been brought down by the charges.”

“Resisting abuse and harassment in sex is uniquely problematic for a movement because sex is a source not only of danger and injury but of pleasure and fulfillment. Unlike the unambiguous oppression of whipping, shackling, criminal prohibition, forced psychotherapies, unequal pay, school segregation, and the like, sexual relations can be a good thing, and as a good thing, sex motivates people to defend access to it. It would be surprising to hear of African Americans who supported separate and unequal schools during the civil rights movement. But the women’s movement includes more than one episode where women calling themselves feminists have gone to bat for powerful men over access to sex. Claiming the moral high ground when the subject is sex turns out to be harder than any other similar quest. And yet, it happened.”

“Geminist law professor, activist, and scholar Catharine A. MacKinnon in the 1970s created the legal theory that sexual harassment of working women violated the Civil Rights Act of 1964.

The mostly white intellectuals who started the movement found invaluable allies on the new front in black women, who had long been working in the public realm. Almost all the early plaintiffs challenging sexual harassment at work were African American. In 1986 Mechelle Vinson took her case all the way to the Supreme Court. And won.”

“In 1973 Karen Nussbaum was working as a clerk typist at Harvard. Once she got a look at the conditions: women were working under in the office, she decided to start a union for clerical workers — she called it 9 to 5.

She told a friend of hers from the 1960s antiwar movement, the actress Jane Fonda, about it. Nussbaum and her union members’ reports of the harassment they had endured as secretaries inspired Fonda to conceive of a movie. She hired a young comedy writer, Patricia Resnick, to write it. Fonda insisted that the movie be a comedy, because, ever the showbiz professional, she thought the 9 to 5 message would reach more people if it was presented in a likable way. No problem, Resnick thought, hadn’t Hollywood icon Charlie Chaplin made a hilarious comedy in which several oppressed characters kill their boss? A few years earlier, when Resnick had been working as an assistant to the director Robert Altman, she’d met Lily Tomlin, who had asked her to write a few sketches. From day one, Fonda and Resnick had Tomlin in mind to play the film’s brainy undervalued office supervisor Violet Newstead, and the country music star and novice actress Dolly Parton for the role of the gorgeous Doralee Rhodes.

When the movie came out in 1980, the picture of bad boss Franklin Hart Jr. (Dabney Coleman) in a restraint harness, chained to a garage door opener in his own bedroom, at the mercy of his female employees, was actually the watered-down revenge scenario. Originally, Resnick planned to have each of the three women workers try her hand at killing their obnoxious boss: the new girl (Jane Fonda) would shoot him, his personal secretary (Dolly Parton) would tie him up and hang him from a barbecue spit, and second in command (Lily Tomlin) would put poison in the coffee he always made her fetch. But after the studio gave the project to Colin Higgins to direct, he summarily booted Resnick (“one captain on the set and that’s the director”) and sweetened up the feminist content.”

“Fonda and the team traveled to 9 to 5 chapters around the country in the 1970s to gather material for the film. Resnick visited a major insurance firm in LA and got to know the women who worked there. The idea about a boss slandering his unwilling secretary came directly from a senior secretary there. In the film, while the three female protagonists have the boss restrained in his bedroom, they issue a series of memos, detailing an astonishingly modern series of reforms: part-time work, job sharing, personal decorations on work spaces, and an on-site day care center. Karen Nussbaum says it was simply the 9 to 5 Bill of Rights on celluloid.

It’s a Hollywood comedy, after all, so the women don’t get together at the end to form a union, as early dialogue hints they might. Instead, replacement male screenwriter and director Higgins manipulates the story with a series of silly coincidences, and the movie ends with the deus ex machina of a formerly unseen male board chair coming to the women’s rescue.”

The 60s & 70s

“From 1969 to 1974 MacKinnon could not get into Yale Law. An admissions committee chair, she later learned, kept pulling her file from the application pile because he did not like her feminist pronouncements. It would certainly not be the last time a powerful man tried to shut Catharine MacKinnon out.”

“Starting in 1971 Ginsburg had methodically set about coaxing the rather conservative Burger court to look hard at legal distinctions based on sex. The early cases focused on rules that gave preference to one sex over the other (“women get this, men get that”), leading to courts making “arbitrary legislative choice(s),” in violation of the equal protection clause of the Fourteenth Amendment. The first case Ginsburg brought took down an Idaho law that presumed men were more suited than women to be administrators of estates Obviously, nothing about women made them automatically different from men in the context of managing an estate. Ginsburg’s success with the conservative justices reflects the relatively unthreatening image of feminism in those years. At the time, even Republican national committeewomen were pushing for the Equal Rights Amendment, which had sailed through Congress in 1972 and was pending ratification in the states.

But sitting in Yale’s class on sex discrimination, MacKinnon wasn’t satisfied with that way of thinking. Women are unequal to men in society, MacKinnon thought, because society stigmatizes their physical characteristics and constructs and then denigrates their social characteristics. Pregnancy is one obvious example of MacKinnon’s insight. In the 1974 term the Supreme Court had held that denying health benefits for pregnancy-related disabilities did not violate the Fourteenth Amendment — in other words, treating people who could get pregnant worse than people who couldn’t was A-OK; after all the policy distinction didn’t apply to all women, only to those who were pregnant — all of whom were women! Instantly, MacKinnon saw that treating women equally to men doesn’t do all the work to make them equal. Benefits were not being denied based on sex; pregnancy was being excluded from a list of compensable disabilities, thus ranking one group above the other on a scale of human worth and resource allocation. The point is not sameness or difference, but domination and subordination.

MacKinnon’s approach also reveals much about race and class, because the standard sameness approach works best for the most privileged women. After all, they re the ones who most resemble men.

Ginsburg’s analysis fell short. MacKinnon saw the gap.”

“Wooed as one particular woman who happened to attract her boss’s attention. MacKinnon saw that Wood’s boss did this to her because sexuality was what being a woman means socially. And that fate applies not just to Carmita Wood but to all women. And what he did hurt her, drove her out of her job. It subordinated and disparaged her.

Finally, in 1975 MacKinnon was also admitted to the JD program at Yale Law. Around 1976 MacKinnon, under the guidance of Yale professor Thomas Emerson, began writing about her ideas on workplace harassment. Under her standard — does it subordinate women as women? — sexual harassment was discrimination, she proposed. Which meant it was prohibited by the Civil Rights Act.

The Civil Rights Act had been lying there, an unexploded grenade in the world of sexual harassment, for more than ten years.”

“MacKinnon saw more deeply into what was really going on. The wrongdoing is not in treating women differently from men, even though that generally results in keeping women down and making them unequal. The wrongdoing is in treating men as the standard for comparison in the first place. The civil rights violation is in treating women as lesser beings. Just go directly to it. Does the behavior, in MacKinnon’s formulation, “help to perpetuate women’s subordinate place in the workplace and in society as a whole?””

“This civil rights veteran saw right through the court’s suggestion that a rule must apply to all women to constitute sex discrimination. Don’t tell me she was fired because she wouldn’t have sex with the boss, he ruled. That analysis stops one big step short. “But for her womanhood,” he wrote, “for aught that appears, her participation in sexual activity would never have been solicited.” Judge Robinson made similarly short work of the argument that only actions based solely on sex were illegal. Congress considered that formulation, he reminded his readers, and rejected it. And for good reason. It would have made the law meaningless if a discriminator could conceal their invidious purpose through a mask of “Oh, I don’t mind employing black people, I just don’t want to employ black people married to white people. I’m not a racist.” Robinson’s understanding of the law is that it prohibits discrimination based on sex “plus” any other factor, as long as the role of sex is significant. And the language of the law was identical for sex as for race.

Judge Robinson explained that he went to these great lengths to clarify the role of sex in the discrimination case because he was so concerned about the “implications” of the lower court’s talk of “inharmonious personal relationships.” What happened to Paulette Barnes was not an unfortunate failure of mutual attraction. It was an illegal abuse of power over a protected class. Once sex in the workplace was reframed as a potential abuse of power to which only — and all — women were vulnerable because they were women, the lens shifted, crucially.

Even Judge MacKinnon ultimately went along with applying the Civil Rights Act to sex. The decision would be unanimous.”

“MacKinnon concluded, employers can protect themselves from liability by doing three things: posting a sexual harassment policy; providing a “workable mechanism for reporting, including the employer warning the supervisor or noting that the advances were unwanted”; and “[protecting] the complainant’s identity.”

The EPA settled with Barnes. She got a great job at the Federal Aviation Administration and became one of its few female air traffic controllers.

But Judge MacKinnon’s concurrence offered future plaintiffs a bad deal. If the courts ultimately followed his lead, the defendant who really matters — the employer — would usually be exempt from liability, and employers, as bank robber Willie Sutton said about banks, are where the money is. A decade after Judge MacKinnon’s concurrence in Barnes, the Supreme Court would take up his invitation to gut the promise of his colleague’s pathbreaking decision.”

“In 1977 the antipornography movement seemed uncontroversially embedded in the feminist movement of the time. The boldface names of New York feminism, Adrienne Rich, Grace Paley, Gloria Steinem, Shere Hite, Lois Gould, Barbara Deming, Karla Jay, Andrea Dworkin, Letty Cottin Pogrebin, and Robin Morgan, were mightily provoked. The porn industry was starting to inflect the larger culture. Movies like Deep Throat were suddenly attracting a mainstream New York audience. Promotion for the Rolling Stones 1976 album Black and Blue included a Los Angeles billboard showing a woman covered in bruises: “I’m Black and Blue from the Rolling Stones … and I Love It!”

Catharine MacKinnon read Andrea Dworkin’s 1974 book Woman Hating with its riveting analysis of pornography, including a powerful reading of the trendy pornographic book Story of O. “Pornography,” Dworkin wrote, “like fairy tale, tells us who we are. It is the structure of male and female mind, the content of our shared erotic identity, the map of each inch and mile of our oppression and despair. Here we move beyond childhood terror. Here the fear is clammy and real, and rightly so. Here we are compelled to ask the real questions: why are we defined in these ways, and how can we bear it?”MacKinnon had seen the political significance in Story of O and had been told her reaction was a little crazy. Reading Dworkin, she says, “gave me my mind back.” Women Against Pornography organized huge demonstrations, first in 1976 in San Francisco’s porn-heavy Tenderloin district. In September 1979, seven hundred women attended a New York antipornography conference; thousands participated in a March on Times Square the following month. In 1977 feminist author Robin Morgan put forward the slogan “Pornography is the theory, rape is the practice,” which did what great slogans do.”

The 80s

“By the early 1980s MacKinnon was teaching at the University of Minnesota Law School and arranged a visitorship for Dworkin to coteach a course on pornography. Activists in Minneapolis learned of the class and asked the pair for help in resisting the spread of pornography in their town. Unsurprisingly, given MacKinnon’s successful legal framing of sexual harassment as a civil rights violation, the two drafted a bill to provide civil rights protection for participants in pornography.

The Minneapolis Ordinance declared that “pornography is central in creating and maintaining the civil inequality of the sexes. Pornography is a systematic practice of exploitation and subordination based on sex which differentially harms women.” The bill defined pornography as “the sexually explicit subordination of women, graphically depicted, whether in pictures or in words” adding that the depiction also includes a list of conditions, such as that “(i) women are presented dehumanized as sexual objects, things or commodities; or (ii) women are presented as sexual objects who enjoy pain or humiliation,” and a list of other vicious practices like being tied up or cut up or mutilated. Causes of action included coercion into pornography, forcing pornography on a person, assault or physical attack due to pornography, and trafficking in pornography.

Under the trafficking provision, people with a claim could sue not only makers but sellers, exhibitors, and distributors. MacKinnon and Dworkin contended that three classes of people — women acting in pornography, women forced to reenact pornographic scenes in real life, and women in the society where pornography portrayed women as subordinate and dehumanized — were hurt. They arranged for women who had experienced harm from pornography to testify before various city councils. People just showed up to testify.

The measure passed in Minneapolis, but the mayor vetoed it. In 1984 the city of Indianapolis passed an anti-pornography bill into law, its version emphasizing the presentation of women as victims of violence — in pain, raped, penetrated, cut up.”

“MacKinnon and Dworkin justified the bills as exceptions to the First Amendment protection of speech and images. Pornography, they argued, was more like an act than it was protected speech. The ordinance sought to protect adult women, as a group, from the violence and abuse pornography targeted them for as well as the diminution of their legal and sociological status as women; that is, from the discriminatory stigma that befalls women as women as a result of pornography. Pornography is a practice, MacKinnon argued, of discrimination on the basis of sex.

It is almost never fair to say, but in this case, the shit really did hit the fan. There had been dissenters from the Women Against Pornography movement from the beginning, including Deirdre English, the editor of Mother Jones; a famous Radicalesbian activist, Gayle Rubin; and a San Francisco-based sadomasochism group, Samois. By 1982 opponents of WAP had gathered enough adherents to convene a fractious academic conference on sexuality at Barnard College.”

“When the ACLU challenged the constitutionality of the Indianapolis ordinance, FACT weighed in as a friend of the court to urge the court to strike down the antipornography law.

The new law, FACT said, violated the constitutional guarantees of free speech. It would allow the government to impose a prior restraint on the production and distribution of print and pictures, and the work that might be found offensive is so loosely described as to be “virtually limitless.” What was, for example a “scenario of…abasement,” which the law would proscribe? Worse, Law and Hunter continued, how could anyone presume to judge sex? One woman’s abasement is another woman’s enjoyment. And by playing into the traditional double standard that women are sexually reluctant while men are promiscuous, the law also violates the Fourteenth Amendment, which forbids discrimination based on sex. It “delegitimates and makes socially invisible” women “who find sexually explicit images of women in positions of display or penetrated by objects” to be “erotic, liberating or educational” and “reinforces the stereotypical view that ‘good’ women do not seek and enjoy sex.” Such an unconstitutional law could only be justified if it prevented serious and imminent harm. Here, FACT said, the proponents’ social science studies purporting to show a connection between pornography and negative attitudes and behaviors toward women was radically unpersuasive. Only a few very violent images may do harm, and the ordinance extended well beyond that narrow class.

Many women central to feminism, from the author of second-wave feminism, Betty Friedan herself, to the author of one of the very first casebooks about sex discrimination, Susan Deller Ross, signed the FACT brief. The trial court and the United States Court of Appeals for the Seventh Circuit struck down the Indianapolis ordinance as unconstitutional, and the Supreme Court summarily affirmed. MacKinnon said of the FACT brief, “At this point, for me, the women’s movement that I had known came to an end.””

“Sandra G. Bundy, a fortysomething vocational rehabilitation specialist and the third African American woman in our story of early sexual harassment law, was suing the DC Department of Corrections. Shortly after Bundy began work a few years before, her coworker, Delbert Jackson, began asking her to have sex. After Jackson was promoted, the next two men who supervised Bundy followed suit, one calling her at home after obtaining her unlisted number. When she complained to the department’s director of community services, he said any man in his right mind would want to rape Bundy and pressed Bundy to have sex with him. Bundy kept saying no.

Like Judge Penn, the trial judge in Bundys case, George Hart, rejected Bundy’s claim that the behavior she’d been subjected to violated the Civil Rights Act.”

“On appeal, the DC Circuit took Hart’s opinion apart. Making use of a passage from Catharine MacKinnon’s book, Judge J. Skelly Wright found that sexual harassment that created a hostile work environment violated the Civil Rights Act. Women didn’t have to resist so forcefully that they triggered a firing in order to suffer from sex discrimination. Between Barnes and Bundy, both of MacKinnon’s theories were now the law, if not of the land then at least of the DC Circuit.”

“Vinson’s was now an easy case. The Civil Rights Act did not just cover harassment where a woman got fired if she didn’t put out. It covered behavior that made the workplace into a hostile environment. The asking for sex, as Judge Robinson put it, placed the female employee into an “intolerable position.” Then Judge Robinson took a slap back at Judge Penn for his shocking defamation of Mechelle Vinson as a sexual “volunteer.” Even if you could know that the sex was “voluntary” in some sense, it would not matter. The law was not going to penalize Vinson for any response she made after her boss put her in such an intolerable position. The appeals court had clearly absorbed Catharine MacKinnon’s critical insight that sex can be understood only with a clear picture of the conditions of power surrounding it.

The court then went further and held that the employer was liable for harassment by any supervisor regardless of whether the bank knew or could have known about it. This was a rejection of Judge MacKinnon’s suggestion, in his concurring opinion in Barnes, the first harassment case. Since Barnes, however, another federal court, the Eleventh Circuit, out of Atlanta, had followed MacKinnon’s analysis and let the employer off.

The DC Circuit was thus in a position of conflict. The Supreme Court steps in most often when two of the district courts disagree. After all, you can’t have different federal law for different Americans depending on whether they live in Georgia or the District of Columbia.”

“Pat Barry knew she was in over her head in representing Vinson before the Supreme Court. She also knew who could best make the argument in support of Vinson’s claim — Catharine MacKinnon. MacKinnon, then living pretty much off the grid at a cabin in California, undertook the task. Basically unemployed at the time, she would write the brief with no library, no computer, no salary, and maybe worst of all, no complete trial transcript. Being MacKinnon, one thing in her argument would be perfectly clear. Nothing Vinson did in the circumstances in which she found herself could possibly be used in defense of the harasser or the bank.”

“Powell found himself voting alone, 18 This was something of a surprise to Powell. He might reasonably have expected at least the most conservative member of the court, William Rehnquist, and probably the chief justice, Warren Burger, to be opposed to the expansive interpretation of the Civil Rights Act. Powell’s notes reflect what is now common knowledge about Burger — often, when he found he would be in the minority, he switched his vote to the majority, so that as chief he could pick who wrote the opinion. By the time everyone had voted, Chief Warren Burger had indeed joined the majority, and he had an unexpectedly enticing choice for the opinion — the normally conservative William Rehnquist.

In the end, Rehnquist’s opinion was so hostile to Vinson’s action that even Powell changed his mind and decided to join his conservative colleague.

On the critical matter, Rehnquist stayed with the majority: the Civil Rights Act of 1964 forbade sexual harassment creating a hostile work environment, just as it forbade racial harassment to the same end. The EEOC guidelines on that point, which agency, even under Clarence Thomas’s leadership, had not abandoned, were now law. But as to Mechelle Vinson, her case would be. sent back to the trial court, with instructions to retry it under the new theory the court had just affirmed.”

“After the Supreme Court sent her case back for another trial, Mechelle Vinson settled with the bank and used the money to go to nursing school. She told the lawyer who negotiated the settlement that she could at least feel she was doing something to help people, even if she wasn’t fighting the bank for yet another round.

Meritor v. Vinson looks like a victory. But it was a dark victory. If only O’Connor had swung the other way. Strict liability makes the employer, which is in the best position to control its high-ranking employees, like supervisors, movie producers, morning anchors, chefs, and shop floor managers, watchful. Instead, employers and employment lawyers set about erecting a scaffolding of protection so they would not have to watch. They sent out policies formally forbidding harassment, they embarked upon training about what to do and not do, they set up human resources departments with procedures in place for lodging complaints — all to show a court, some day, that the employer was not responsible for how its people behaved. Then they stopped watching.”

“Before you could say “corrupt employer toady,” every company over fifteen employees in America that had not set up an HR department in 1986 after Vinson set one up. They published formal policies and established structures to investigate accusations.

Employers held antiharassment training programs. often run by their lawyers. But lawyers and consultants who conduct training represent the employer and may therefore predictably hesitate to give advice to employees that will have the effect of structuring and preserving a cause of action against the employer. Should the case go to court, the human resources department will be the witness for the employer. Studies reflect that HR employees are embarrassed, they are untrained, they are unsympathetic with the accused, they fear disrupting the workplace, and they are reluctant to label something as discrimination. High-profile employment lawyer Nancy Erika Smith characterizes HR’s role in sex harassment cases as protecting the abusive men who run — or just work for — the company.

But regardless of the defects in the procedures, after the decisions interpreting Meritor v. Vinson, any complaining employee had to start there, or no employers’ deep pockets would ever be available to them. It’s a real catch-22.

Since Meritor, academics have studied the effectiveness of the employer’s defensive institutions to alert the employer that it has a problem. A 1995 study showed that employees were not complaining at any higher rates than they had in 1980, six years before Meritor even came down. As of 2003, scholar Joanna Grossman reported, “cookie-cutter sexual harassment policies and procedures do not seem to have any reliably negative effect on the incidence of harassment.”

The entire seemingly useless system is set up alongside the strategies real people actually use when harassment surfaces. Here’s what studies show people (women) really do. They ignore the harassment, pretend it is not happening, reinterpret it as not harassment, and blame themselves. More healthily they avoid the harasser if they can, or appease him if they cannot. They talk to friends. Some women even confront the harasser before they go to HR.”

“Since 1993 the lower courts have had ample opportunity to explain what Justice O’Connor’s language means. And it’s not pretty. Most federal courts require actual sexual touching, which would be assault and battery in any state, and also that the severe touching be repeated several times or by several people or both. The opinions in which the courts were not offended makes for revolting reading.

Patting on the buttocks, grabbing the plaintiff’s crotch, making her watch while he “self-stimulated,” attempted kissing — not enough. A forty-year-old coworker followed two seventeen-year-olds, blowing kisses, making obscene gestures, touching one on the chest, kissing, hugging, asking the other for dates — not severe and pervasive, another district court ruled. Touching, touching, touching, attempted kisses, I LOVE YOU signs — the cases are overflowing with sexual behavior the courts considered trivial or isolated.”

The 90s

“Thomas was one of the first generation of black Americans to come of age after the desegregation decision in Brown in 1954. Deserted by his father, from the age of six he and his brother lived with his grandfather. In the poor and segregated South, Thomas’s grandfather had gotten a leg up. Starting with a pushcart, Myers Anderson developed a fuel and ice delivery business and built himself a tidy bungalow. He sent his grandsons to a segregated but exemplary Catholic parochial school. Contemporaries reported the loveless, excessively strict upbringing his strong-willed grandfather provided Thomas, and his mother, who was sidelined, spoke of the stubborn, willful character her son developed in turn. But Anderson’s industry and commitment allowed his advantages to be passed on to the next generation. Clarence thought he might become a priest. Two years into high school, he transferred to a newly integrated Catholic seminary and then went to a small town in Missouri for another year of study for the priesthood. He was one of two black students. He found the racial prejudice he encountered there so intense that he left both the seminary and the Catholic religion. His grandfather took this as a denunciation and cut him off, but it was 1968, and a progressive Catholic college, Holy Cross, in Worcester, Massachusetts, gave him a scholarship. He graduated ninth in his class at Holy Cross, proving himself, he said, to those who had denigrated him as a mere affirmative action baby. The day after graduation, he married his first wife.

Although Thomas has denied it, he was admitted to Yale Law School just as the school embarked on an ambitious program of affirmative action. Affirmative action or not, Thomas again felt disparaged by his white classmates. After Yale, he thought hed go into private practice and make a lot of money. To his surprise, the big Georgia law firms hadn’t even desegregated, let alone embraced affirmative action. He got no offers. Which turned out to be a blessing in disguise, because when old-school Rockefeller Republican John Danforth, the attorney general of Missouri, went to his alma mater, Yale, looking for a black lawyer to add to his staff, Thomas was a natural choice. Thomas, who had previously identified as a Democrat, moved to Jefferson City, Missouri, with his wife and new baby son. And registered as a Republican.

Three years later, Danforth went to the United States Senate, and Thomas, briefly, to Monsanto Chemical in Missouri. But in 1979 Danforth, ever mindful of the racial makeup of his office, invited Thomas to DC. Thomas accepted, but only after Danforth promised he’d be working on issues like the environment, nothing to do with race. When Thomas got to DC, he continued his journey rightward, reading the works of the black conservative intellectual Thomas Sowell and networking with an obscure black conservative think tank run by one J.A. (“Jay”) Parker.”

“When George H. W. Bush succeeded Reagan in 1988, Thomas pursued a strategic plan to put himself in the running for the Supreme Court. First he had to find his way to the intermediate court, the feeder for the high tribunal, the DC Circuit. His campaign for the circuit court seat was a preview of the ultimate campaign. He mobilized his conservative allies, and he made a series of courtesy calls on the NAACP and other civil rights groups he had ignored up to that time. The campaign went like clockwork, even capturing the support of the fragile “centrist” Democrats led by Georgia’s own senator Sam Nunn. Who could resist the striver from Pin Point?”

“In a telephone interview, she laid out the basic facts of her experience with Clarence Thomas, how in the office he discussed in lascivious detail the pornography he watched, describing women with huge breasts and people having sex with animals. He commented on Hill’s appearance, pressed her for dates, boasted of his sexual prowess, and generally subjected his employees to an endless stream of dirty sex talk. In one instance, he went to his desk for a soda, picked up the can, and said, “Who has put pubic hair on my Coke?””

“Senator Barbara Mikulski (“Do I look like a gym rat to you?”) later remembered the Senate gym as the place where the guys roamed around the steam room making deals. Two decades later, as the Anita Hill charges surfaced, Republican John Danforth and Joe Biden ran into each other in the collegial locker room, and Biden gave Danforth his word that any hearing on Anita Hill’s accusations would be very quick. When urged by Mikulski and his female colleagues from the House to take Hills accusations seriously and set up proper hearings, Biden pointed his finger at the women and said he had made a commitment to his Republican colleague to expedite the hearing. Keeping his locker room promise to Danforth was more important to Biden than any accusation from Anita Hill.

President of his high school class, Biden was known as someone who cared passionately about being liked and was powerfully disinclined to judge his friends for personal indiscretions. In 1971, at the age of twenty-eight, a desperately marginal Democratic Party had asked him to run against the incumbent Republican for the Delaware Senate seat. With the overconfident senator paying no attention to the race, the likable Biden scored an upset and became a member of the Senate club.”

“Kennedy’s womanizing is widely known — to the many women who have been approached themselves, for example, and to reporters and others who have been around Kennedy and have seen the pattern in action. While I was talking to people for this article, it seemed as if almost everybody in that world had another anecdote to offer.

Kelly detailed some of those anecdotes. The most memorable is a 1985 episode that the journalist called “Brasserie I,” after the classic DC power broker watering hole. (The implication that there were more Brasserie incidents was intentional.) A “pretty” waitress at the Brasserie confirmed that Kennedy and his sidekick, Senator Chris Dodd, had summoned her to a private room at the restaurant. “The six-foot-two, 225-plus-pound Kennedy grabs the five-foot-three, 103-pound waitress and throws her on the table. She lands on her back, scattering crystal, plates and cutlery and the lit candles. Several glasses and a crystal candlestick are broken. Kennedy then picks her up from the table and throws her on Dodd, who is sprawled in a chair… Kennedy jumps on top and begins rubbing his genital area against hers, supporting his weight on the arms of the chair. As he is doing this, [a supervisor] enters the room.” The women “start to scream, drawing one or two dishwashers. Startled, Kennedy leaps up. He laughs. Bruised, shaken and angry over what she considered a sexual assault, the waitress runs from the room. Kennedy, Dodd and their dates leave shortly thereafter, following a friendly argument between the senators over the check.” And that’s just Brasserie I.

By 1991 Kennedy’s record of liberal activism on women’s issues had been seriously tarnished by his long and sordid reputation for sexual misdeeds. As the Hill/ Thomas hearings played out, Ted Kennedy was largely silent.”

“Sexual harassment and abuse, it turns out, is rarely an activity that takes place exclusively in locations concealed from human witnesses, immune from investigation, and thus reduced to “he said/she said.” Offenders typically repeat behaviors, so there are habit witnesses. Sometimes their actions involve public conduct, subject to human observation. They leave paper trails, they speak imprudently, they keep diaries, they use credit cards.”

“On January 26, 1992, right before the critical New Hampshire vote in the Democratic primary, which would have solidified his position as the front-runner, rumors of Governor Bill Clinton’s years-long affair with a state employee, Gennifer Flowers, a former cabaret dancer, exploded in the tabloid Star.”

“At a press conference at the Waldorf hotel in New York City the next day, Gennifer Flowers revealed she had been taping her phone conversations with the governor. She played a clip of one tape for the press. Pace Bill Clinton, the tapes seemed to show that the “allegation” of their affair was not “false.”

The truth was out, but it did not matter. People didn’t vote based on whether Clinton screwed around. Clinton came in second in the New Hampshire primary, labeled himself the Comeback Kid, and went on to win the election.”

“A long train of Clinton accusers — Gennifer Flowers, the modestly positioned government employee who didn’t like being erased from history; employee Paula Jones, who sued the president for sexual harassment, assault, and defamation in 1994; Kathleen Willey, who accused him of groping her in 1998; and Juanita Broaddrick, who in 1999 claimed that Clinton had raped her during his campaign for Arkansas governor in 1978— made their cases against Clinton and were ignored. Because they were not his wife, they were not the right complainants.”

“In the first round, the trial court in Jones v. Clinton ruled that Paula Jones couldn’t sue a sitting president during his term, but Jones’ suit was reinstated by the court of appeals, and the reinstatement affirmed by the Supreme Court. The trial court took it up again. Nonetheless, for some months no one took Jones’s suit seriously. If it did not get dismissed on the merits, Clinton could lie, and everyone would pretend to believe him. Perjury in a civil case rarely carries any serious penalty. The society could treat sexual harassment at work as a wrongful act and still refuse to attach real consequences to the wrongdoing. That’s why plaintiffs in sexual harassment cases usually lose. Or don’t sue at all.”

“Throughout their marriage, Hillary got to decide when the women in her husband’s sphere were political subjects, with human rights, and when they were in the hidden, lawless realm of the personal. Who’s missing in this picture of the covertly wandering husband and enabling wife? The other woman. In Bill Clinton’s case, Gennifer Flowers, and the next one up — Paula Jones, a six-dollar-an-hour high school graduate working the registration desk — were dragging a heavy burden of social class when they complained of Bill Clinton’s disregard for their rights as women and as human beings. So far, Paula Jones had gotten nowhere. But in 1995 Bill Clinton turned to a young White House intern, daughter of a bourgeois cancer doctor and a writer from LA. (Confined to the White House and surrounded by watchers, he did not have the same range of choices as in the obscure precincts of Little Rock.)

Born in 1973, Monica Lewinsky was not a boomer and apparently did not know the rules of the hidden law of adultery. After she and the president embarked upon a sexual relationship in the White House, she blabbed about it with open abandon. She told college friends, high school friends, a couple of shrinks, an old boy-friend, her aunt, a coworker. She even told her mother, whom she was living with at her apartment in DC’s Watergate complex. In 1996, after she’d been transferred out of the White House to the Pentagon, she told a sympathetic older woman at her new place of work, Linda Tripp, about the affair. Unbeknownst to Lewinsky, Tripp had a deep suspicion of President Clinton from her days in the White House as a holdover from the Bush years. She also had a tape recorder.”

“Lewinsky, by all her many accounts, had her first sexual contact with the president on the evening of Wednesday, November 15, 1995, while working in the West Wing. The government was shut down over a budget impasse. She and the president had been exchanging glances for a while during her internship, and on this first occasion, the president took her back into the private study off the oval office, and a windowless hallway where they kissed. Later that evening, they went back, and she gave him a blow job. Over the next year and a half, the president and Monica Lewinsky met and had direct physical sexual relations around ten times, most often in the first six months. She performed oral sex on him, in and around his private offices off the Oval Office, in the bathroom, in the hallway. He fondled her, but he refused to have genital intercourse with her, although at least once he inserted a cigar into her vagina. When she was not at the White House, the president arranged encounters by calling her at home and inviting her to visit. On Friday, April 5, 1996, Evelyn Lieberman, a high-ranking aide with an eye for improper appearances, arranged to have Monica Lewinsky transferred from her White House job to the Department of Defense.

On Easter Sunday, April 7, 1996, Lewinsky went to the president for help, and she and the president had sexual contact in the hallway outside the Oval Office study and in the study itself. This was their last in-person sexual encounter for over ten months. But on Friday, February 28, 1997, the president had his personal secretary, Betty Currie, call Lewinsky to invite her to the White House for a radio address. After the address, Lewinsky and the president kissed by the bathroom. Lewinsky performed oral sex on him and he spilled a little semen on her dress. They met again for sex in March 1997, but that was it. Although they met in person a few more times, there was only smooching. During the sixteen months of their relationship, Lewinsky testified that she and the president also engaged in “phone sex” approximately fifteen times. The president initiated each phone-sex encounter by telephoning her.

Meanwhile, the courts had reinstated Paula Jones’s lawsuit. By December 1997, both President Clinton and Monica Lewinsky knew someone had talked. Clinton called and told Lewinsky she was on the list of potential witnesses to be deposed in the previously unthreatening civil suit. So, under the hidden law of adultery, he suggested to Lewinsky that she give a cover story for her White House visits: she was “delivering documents.” She signed a false affidavit to stave off the deposition.

Turns out Lewinsky’s confidante, Linda Tripp, had been in touch with a conservative book agent, Lucianne Goldberg, a well-known Clinton hater. Through her, Tripp met with Newsweek reporter Michael Isikoff and Paula Jones’ lawyers, who had put Lewinsky on the witness list. Tripp decided to deal directly with Independent Counsel Ken Starr, and Starr sought and received permission to expand his investigation of the Whitewater banking deal to Clinton’s subornation of perjury and obstruction of justice in the unrelated Jones suit. On January 16, 1998, just as Starr got his expanded authority, FBI agents and US attorneys under Starr’s orders surrounded Lewinsky at the mall where she had gone to meet her friend Linda and detained her in a hotel room for twelve hours, trying to get her to turn against the president and wear a wire in further encounters with him. Her affidavit was perjury, they told her, and she could go to prison for decades for it. At times she contemplated suicide. But when they released her to go, she had not agreed to anything.

No matter. By the time Clinton sat for his deposition in the Paula Jones case, Independent Counsel Starr and Jones’s lawyers had heard all about Monica Lewinsky. As he had done in matters related to sexual impropriety, Clinton lied. On January 17, 1998, the online gossip site Drudge Report revealed Lewinsky’s existence and the content of her taped conversations with Linda Tripp. For seven months, the media, quickly including the mainstream media, lawyers for Paula Jones, and a host of other political actors, revealed various aspects of the Clinton/Lewinsky affair. President Clinton continued to deny — to his family, to his cabinet, and, in a televised press conference, to the American public — that he had “had sexual relations with that woman, Miss Lewinsky.” While it was still her word against his, Clinton’s defenders acted on a corollary to the hidden law of adultery: the other woman is target practice. In a campaign disturbingly reminiscent of the conservative’s war on Anita Hill, the Clinton team orchestrated a series of attacks on the character of Monica Lewinsky. She was a “sexually demanding stalker, as one White House intimate put out. A key congressional ally, Charles Rangel, questioned whether she “played with a full deck.” When a private conversation of Hillary’s was revealed years later, Americans learned that Monica was, in the spouse’s estimation, just a “narcissistic loony toon” whom Bill had heroically tried to rid himself of. The media gleefully unearthed the story of Lewinsky’s earlier sexual affairs.

In June, Monica Lewinsky finally got a proper DC legal team, and her lawyers negotiated a full immunity from the false affidavit in exchange for her telling Ken Starr the whole story. The independent counsel brought her before a grand jury, where she testified under oath for days. Finally, on August 17, 1998, after learning that the independent counsel had a specimen of Clinton’s DNA from the blue dress Lewinsky wore during one of their encounters, the president of the United States told the grand jury that he “may have been misleading.” That night, he told the American people that he had had “relations” with “Miss Lewinsky,” which were, in his mealy-mouthed phrase, “not appropriate.””

“The positions of “women in Congress — including several swept to power by female outrage over the Senate’s treatment of Anita Hill … range from the procedural stonewall (‘What is important for the American people to know is that there is a process in place to deal with these allegations,” in the words of Senator Barbara Boxer) to the creative inversion (“What about Ken Starr’s humiliation’ of the women he dragged before the grand jury?,” fumed Representative Nancy Pelosi) to the truly fanciful twist on gender politics (“Not so many years ago, a woman couldn’t be a White House intern,” said a straight-faced Senator Carol Moseley-Braun on Meet the Press)!

Reading the tale released by the Republicans that September, it is stunningly obvious that Clinton’s sexual relations with the twenty-two-year-old certainly was not what she “sought,” in Steinem’s words. The question is: why would a person enter into sexual relations different from what she desired?”

“What did Paula Jones say? Paula Jones said that, on May 8, 1991, she was, in her capacity as an Arkansas state employee, working the registration desk at an event in which Governor Bill Clinton was participating. After she met his bodyguard, Danny Ferguson, the governor, who had spotted her from some distance, sent Ferguson back to Jones’s desk to ask her if she’d like to come to Clinton’s suite in the hotel. After Jones came to the suite and announced herself, the governor shook her hand, invited her in, and closed the door. A few minutes of small talk ensued, which included the governor asking her about her job and mentioning that Dave Harrington, Jones’ ultimate superior and a Clinton appointee, was his “good friend.” The governor then unexpectedly reached over to her, took her hand, and pulled her toward him, so that their bodies were close together. She removed her hand from his and retreated several feet, but the governor approached her again and, while saying, “I love the way your hair flows down your back” and “I love your curves,” put his hand on her leg, started sliding it toward her pelvic area, and bent down to attempt to kiss her on the neck, all without her consent.

“What are you doing?” Jones asked. She “escaped” from the governor’s reach “by walking away from him.” She was extremely upset and confused and, not knowing what to do, attempted to distract the governor by chatting about his wife. She sat down at the end of the sofa nearest the door, but Clinton approached the sofa where she had taken a seat and, as he sat down, “lowered his trousers and underwear, exposed his penis (which was erect) and told [her] to kiss it.” “Horrified” by this, she “jumped up from the couch” and told the governor that she had to go, saying something to the effect that she had to get back to the registration desk. The governor, “while fondling his penis,” said, “Well, I don’t want to make you do anything you don’t want to do,” and then pulled up his pants and said, “If you get in trouble for leaving work, have Dave call me immediately and I’ll take care of it.” As she left the room (the door of which was not locked), the governor “detained” her momentarily, “looked sternly” at her, and said, “You are smart. Let’s keep this between ourselves.”

There are many other allegations in Jones’ suit, including assertions of maltreatment by other supervisors after she turned the governor down, but Judge Wright found the other complaints inconsequential. Jones’ claim the governor asked her to kiss his penis was, however, harder to discredit. By moving to dismiss, Clinton was saying that even if true, their encounter wasn’t abusive enough to violate the law.”

“Faludi was alerted to the existence of the backlash, which became her subject, in 1986 when she happened to see the article in Newsweek reporting that single women over forty were more likely to be killed by a terrorist than find a (heterosexual) mate. Good journalist that she was, Faludi asked herself, could this possibly be true? Checking the statistics, she found that Newsweek had made the assertion based on one statistically dubious unpublished study. Journalism 101 should have dictated the story be killed, but the idea was so appealing to the editors that no one checked the numbers. The more she looked at the coverage of feminism, the more hostility and bad data she identified. In 1991 Backlash won the National Book Critics Circle Award for nonfiction, and “backlash” became the generic name for the drumbeat of media stories intended to discourage organized activism for gender equality. But it didn’t stop the backlash. The threat of sexual blackmail against any woman who demanded equal treatment was so potent that seven years after Backlash, Newsweek’s more robust competitor, Time, just dispensed with the terrorist and proclaimed the movement “dead.””

“A microcosm of the movement can be seen in the history of the iconic feminist vehicle Ms. magazine. Ms. was founded in 1971 by Gloria Steinem and a roomful of other female New York journalists who wanted to create a women’s magazine controlled by women. A 40-page excerpt of the “preview” issue was published as a pullout in the trendy New York magazine in December 1971. Within weeks, twenty-six thousand people had subscribed. The preview issue itself, which appeared in January 1972, sold out its initial offering of three hundred thousand copies in eight days.

Ms. magazine never had a secure financial plan, its advertisers were always jumpy, and by 1978 it could be sustained only as a not-for-profit. Steinem and a few others founded the Ms. Foundation for Women, at that point to support the magazine, which had always had more impact than income. In its heyday, Ms. helped set the agenda for American feminism.”

“Ms. ran a cover story on the problem of sexual harassment. The cover illustration featured a doll seated behind a desk, with a male hand reaching over its shoulder and down inside the front of its dress. (A faction of the magazine’s editors didn’t want to actually show it happening.)

At its height in the early 1980s, Ms. reportedly had a monthly circulation of seven hundred thousand readers. As Ms. grew in popularity and tried to maintain its appeal to a diverse readership, the magazine experienced every divide that rent the movement as a whole. Predictably, Ms. early on took fire from the left for not being ideologically pure enough. In April 1985, for example, the editors ran an article, “Is One Woman’s Sexuality Another Woman’s Pornography?” Looking back, the editors present remembered a debate on the pornography article so intense that “some people never got over it.” The magazine was also accused of prioritizing white women’s issues. In 1986 one woman of color, a star contributing writer, Alice Walker, resigned. “A people of color cover once or twice a year is not enough. In real life, people of color occur with much more frequency. I do not feel welcome in the world you are projecting.” Ominously, Walker resigned not just for herself but also for her daughter, Rebecca Walker, also a Ms. contributor, then age seventeen.

Already rent by division, by 1987 Ms. faced, as the movement did, the price of its own success. In an effort to appeal to its diverse subscriber base, Ms. had become to some younger supporters bland, uncontroversial, boosterish, and unironic. Like the movement, Ms.’s target audience was beginning to rise in the world of work the movement had begun to open up. Many of these women didn’t need a collective organ to raise their consciousness.”

The 2000s

“On one point there is clear agreement among all the commentators, though. No Monica, no Gore defeat in 2000.

And what a defeat. On his first day in office, Republican president George W. Bush reinstated the policy that restricts foreign NGOs that receive US Agency for International Development family planning funds from using their own, non-US funds to provide legal abortion services, lobby their own governments for abortion law reform, or even provide accurate medical counseling or referrals regarding abortion. Virtually nothing President Bush could do would have been worse for women. The Center for Reproductive Rights estimated that seventy-eight thousand women worldwide die every year from unsafe abortions.

In 2003 Congress passed for the third time a law limiting the medical procedures that could be used in performing certain abortions (anti-abortion activists call the procedures “partial-birth abortion”). The 1995 and 1997 versions of such federal bills had been vetoed by President Bill Clinton. But now George Bush signed the measure into law. And the constitutionality of the law began to wend its way to the United States Supreme Court. At first, the prospects for the anti-abortion law in court did not look promising. In 2003 the court, by a vote of 5 to 4, had struck down an almost identical law out of Nebraska, because it did not have an exception for preserving the health of the mother. In 2005, however, the fifth, swing justice, Sandra Day O’Connor, announced her plans to retire, and in 2005 President George W. Bush replaced her with the passionately anti-abortion appeals court judge Samuel Alito. On April 18, 2007, the Supreme Court sustained the federal Partial-Birth Abortion Act. The decision, Gonzales v. Carhart, was the first anti-abortion decision from the court since 1992. The vote was 5 to 4, with President Bush’s appointee, Justice Alito, providing the crucial fifth vote. The crucial swing vote on the nine-member court now moved to Anthony Kennedy, who wrote the opinion in Gonzales.

The hit feminism took in Gonzales v. Carhart is palpable. It was the first decision since Roe to approve a limitation on abortion regardless of its impact on the mother’s health. What good could such a restriction possibly do, the challengers asked? Even Congress is not allowed to pass laws just because it feels like it. In response, the bizarre opinion written by Justice Anthony Kennedy, now the swing vote, airily speculated that, contrary to all statistically grounded social science literature on the subject, some imaginary woman somewhere must regret having had an abortion. So any restriction, like outlawing a methodology that might discourage the imaginary regretful woman later, would be good.

The decision in Gonzales v. Carhart arguably marks the first appearance of alternative facts in Supreme Court jurisprudence in decades. Like the Republicans on the Judiciary Committee, who imagined that Anita Hill must have been suffering from an erotic mania in 1991, a handful of old men in 2007 made women’s lives worse by imagining what they must be thinking about abortion. The razor-thin election of George W. Bush made their fantasies the law of the land.

“In October of 1996, just as Monica Lewinsky was counting the days until that year’s presidential election was over so she could return to her post in the White House, media mogul Rupert Murdoch realized his long-term dream of starting a round-the-clock American news network.”

“With his nascent network, he had only the resources to hire performers like Sean Hannity, who “had never held a full-time job in television,” and Bill O’Reilly, who, Ailes himself admitted, had been in the business twenty-five years without ever becoming a star. Fox was fighting an antitrust suit against Time Warner, to force it to carry the network on its make-or-break service in New York, and Fox’s Washington bureau news director had to wage a pitched battle for White House credentials. The viewership was minuscule.

Then, on Sunday, January 18, 1996, the commentator Matt Drudge posted an article on his website, the Drudge Report, about the president of the United States having a sexual affair with an intern. Eight days later, Clinton denied it. It was a godsend. Ailes told his best prospect, Brit Hume, he was going to launch a new show that night; Hume’s program became one of the leading sources of stories about the pursuit of Bill Clinton. Fox viewership increased by 400 percent. And the network found its purpose. Fox News was going to tell people how to think about what they were seeing. The Lewinsky affair was tailor-made for the network’s political agenda — to make it “okay to despise the President.””

“Senate Majority Leader Harry Reid, however, was not the least bit interested in Hillary Clinton in the crucial months of 2007. He had his eye on a new senator, the freshman from Illinois who had given such a stunning speech at the 2004 Democratic National Convention. Late in 2006 the majority leader called Barack Obama into his office for a heart to heart. Obama didn’t like it in the Senate, he had noticed. But, he suggested, the new senator could run for president. Reid and Obama agree that Obama was a little taken aback by the majority leader’s suggestion. What made Reid focus on Obama? “Obama was like me,” the senator with the famously hardscrabble youth told the press. He faced obstacles in his youth and so did I. And so Reid, the whitest of Anglo westerners, identified with Barack Obama in ways, he says, others may not have. Reid was hardly an avatar of political correctness. In a stunning glimpse into white people’s thinking, Reid was reported as saying that part of Obama’s appeal was that he was “light-skinned” and had a “Negro” accent only when he “wanted to.” (There was a flap; Reid apologized.) But the bottom line was Reid thought he had a winner. About Hillary Clinton he was not so sure. Although Reid purported to be neutral in the hard-fought primary between Obama and Clinton, he was not.”

“In February of 2007 — which is rather early for this sort of thing — Tom Daschle, who had served with Joe Biden and Chris Dodd and John Edwards and Hillary Clinton, stepped forward and endorsed Barack Obama. Daschle’s old friends and colleagues from the Midwest — Richard Gephardt of Nebraska, Byron Dorgan and Kent Conrad of North Dakota, along with dissidents from further afield — Bill Nelson of Florida, even Barbara Boxer of California, were secretly urging Obama to run against Hillary Clinton.

Why the resistance to Clinton? John Heilemann and Mark Halperin, in their scoop- and scandal-filled blockbuster about the 2008 election, report that everyone, everyone in the DC governing classes had heard about Bill Clinton’s ongoing sexual affair with someone, although the identity of the unnamed other party differed, depending on the account. Nothing had ever been proved to the Lewinsky level, but Hillary’s natural allies from her dutiful service in the Senate did not want another election about Bill Clinton’s libido. They disliked that prospect a lot more than they liked Hillary.”

“Women had been pouring out of law schools, a natural feeder for political jobs, at record numbers every year since the Clinton administration. No matter: as of 2013 Barack Obama’s administration employed just slightly fewer women in high-ranking administrative positions than Bill Clinton had. Twenty years before.”

“Since prosecutors and juries seem reluctant to punish date rape as harshly as rape perpetrated by a stranger, the answer, a the Indiana judge proposed, was in part to set out levels of wrongdoing, distinguishing date rape from stranger rape to give law enforcement some milder sentencing options. Even if downgrading date rape, which is not inherently less serious than stranger rape, was not the best solution to the underenforcement of rape law, at least, like sexual harassment at Cornell at the same point in time, the behavior was now named: date rape. And naming the offense, as we have seen, can be the first step to social change.”

“The first documented campus rape-crisis center, at the University of Maryland, actually dates back even earlier — to 1972. The Maryland activism, initiated by a group of resident advisers, older students responsible for supervising college dorms, was a response to a series of gang rapes on campus.”

The 2010s

“A month after the Times article appeared, Columbia University junior Emma Sulkowicz filed a complaint against a fellow student, charging him with rape. When the university cleared him, Sulkowicz protested the decision by carrying a fifty-pound mattress on her back everywhere she went on campus her senior year, 2014–15. “Carry That Weight,” representing the male students continuing presence at Columbia despite the charge, was a work of performance art in every sense of the word. For Sulkowicz, a visual arts major, it was her senior thesis. As art and often only art can do, Emma Sulkowicz’s performance piece, enacted at a college in the media capital of America, captured the public eye. “Carry That Weight” recalled a tactic used by the AIDS activist organization ACT UP from a generation before, when, impatient with the pace of new drug testing while gay men were dying, ACT UP demonstrators carried cardboard tombstones to the lawn of the FDA. “Carry That Weight” was the subject of numerous articles in the New York Times and a host of other publications. In 2014 New York senator Kirsten Gillibrand took Sulkowicz with her when she announced legislation aimed at combating campus sexual assault, and Sulkowicz accompanied Gillibrand to the 2015 state of the union address.”

“Once the universities started paying — or, as Bagenstos argues, overpaying — attention to the Obama administration demands for serious systems to process complaints of sexual wrongdoing, law professors led the resistance to the protections. Especially, in an uncanny replay of the liberal rally around Bill Clinton, law professors of the liberal persuasion.”

“Everyone at Fox knew that their female news anchors were expected to wear short skirts and display their legs whenever they took the stage. Seventy-something Ailes had been making his anchor Gretchen Carlson’s life a living hell for years, starting with his widely discussed demands that she twirl around, show her legs, and wear tight-fitting clothes. Trump fan O’ Reilly had settled a huge claim against him from a longtime employee, Andrea Mackris, as long ago as 2004.

At the same time he was hanging Kelly out to dry in face of Trump’s attacks, Ailes offered Gretchen Carlson a novel solution to her complaints about her sexist treatment at the network: “I think you and I should have had a sexual relationship a long time ago, and then you’d be good and better and I’d be good and better. Sometimes problems are easier to solve” that way, he said. It’s not clear how the fifty-year-old married former Miss America Carlson would have been made good or better by having sex with Ailes, but Ailes definitely did not get good or better from his proposed solution. She was recording him on her phone. (Steve Jobs has probably liberated more women than Susan B. Anthony.)

Carlson started recording her conversations with Ailes in 2014. She had complained about her sexist treatment by fellow Fox & Friends host Steve Doocy, and when he got word of it Ailes mocked Carlson and told her to stop being so easily offended. After complaining, she was demoted from the high-ranking morning show. At that moment, armed only with her cell phone, Gretchen Carlson, Stanford educated and with years of experience in journalism, began a secret, one-woman campaign against Roger Ailes, and, through him, Fox News itself. Ailes kept guns in his office, he had people followed, and there were security cameras all over the office.”

“There was an incident in 2012 where she walked off the set after her cohost made a sexist comment. “You read the headlines since men are so great,” she said laughingly, leaving him alone on the couch. She even gave warning about sexual harassment. In 2015 she wrote a long article about being sexually harassed at Miss America and several times in the ensuing years.”

“On July 6, 2016, just under the limitations period from his invitation to get good and better with him, Gretchen Carlson sued Roger Ailes. He had said he thought “we should have had a sexual relationship a long time ago,” Carlson’s complaint recited. Boom.”

“Three days after Carlson went public, Sherman published his blockbuster article on the other accusers: “6 More Women Allege That Roger Ailes Sexually Harassed Them,” the headline screamed. Kellie Boyle, fifty-four, former Republican National Committee field adviser, Marsha Callahan, seventy-three, former model, and four others identified with pseudonyms. The most shocking part of the first of the Sherman revelations was the ages of the anonymous victims. Susan, sixteen, Diane, eighteen, Pat, twenty-four.

The investigators from Paul, Weiss asked to talk to Megyn Kelly. She didn’t think Ailes should be pressing other Fox stars — Jeanine Pirro, Greta van Susteren— to endorse him as a good boss. In 2006, when she was newly divorced and appeared vulnerable he had harassed her. Kelly, the intrepid Sherman reported, personally approached other women at Fox to talk to the investigators at Paul, Weiss.

It must have been so sweet for Megyn Kelly. Ailes had hung her out to dry, as Trump rose. From the day he was appointed chairman of Fox News, Ailes understood that conventional conservatism — elite, intellectual, and East Coast-driven — would never take over the nation’s politics. After 1996 Ailes made Fox into the voice of an increasingly large bloc of the Republican base, people who thought their country was disappearing.”

“Ailes accepted a forty-million-dollar settlement from Fox, and Fox issued a formal apology to Gretchen Carlson. Fox reportedly paid Carlson 30 million dollars.”

“The Post’s best guess at how many poured into DC [for the Women’s March] was 1 million and at all marches was over 4 million, about 1% of the US population. People marched at 637 locations worldwide.”

“On April 1, 2017, the Times ran a story headlined “Bill O’ Reilly Thrives at Fox News, Even as Harassment Settlements Add Up.” The Times had identified five women who had been paid off by either O’Reilly or Fox to settle their sexual harassment claims. Most damningly, two of the suits were settled after the network fired Roger Ailes and said it would not tolerate such behavior. There was an explosion on social media, with women tweeting #getridof O’Reilly. Fox fired its star.”

#MeToo

“New reporters are often assigned to the suburban beat, and Megan immediately found a sex scoop there: the police departments in Chicago’s outlying towns had two years of evidence kits from rape claims sitting untested on the shelves, the perpetrators long gone. The next year, Illinois became the first state to require all rape kits to be tested. Two years later, she turned up a pattern of sexual abuse, shrugged off in the most maddening way, at the huge Buddhist temple in southwestern Chicago, and then in other Buddhist temples across the community. Legendary Chicago journalist Mary Schmich says of her former Tribune colleague, “when the moment in the culture came for this movement to explode, Megan was there with a longstanding journalistic interest in it. She didn’t have to study the problem, her sense of the problem was not merely personal, she had explored it journalistically.”

The two started down the settlement trail, tracing the legal and financial records of the agreements Weinstein had used to silence women who came forward. Looks like someone or multiple someones at the Weinstein Company was leaking like an old earthen dam, and the two got paperwork of the most damning sort. They “reverse-engineered” the documents as evidence that something had happened. They made a timeline.”

“Marilyn Monroe probably expressed it best. The men she knew saw Hollywood as “an overcrowded brothel, a merry-go-round with beds for horses.” So it had been from the earliest days. Mack Sennett, the Irish-Canadian émigré who created the Keystone Kops comedies, is credited with inventing the casting couch. And that was 1913. After the studios consolidated into the Big Eight in the 1920s and 1930s, there were kings and every one of the studio heads had a harem. Darryl Zanuck, Samuel Goldwyn, Harry Cohn at Columbia. The only part of the MGM in Metro GoldwynMayer that didn’t demand sex work from its female stars was the Metro. Mayer was particularly loathsome, publically and repeatedly fondling the very young Judy Garland, herself a hotbed of insecurity, completely dependent upon his favor. When the studio system unraveled, the behavior simply became the province of individual star directors and producers. Alfred Hitchcock’s abuse of Tippi Hedren in the 1960s is only the most famous example. Harvey Weinstein is only the icon. Marilyn Monroe was clear on two things. Having sex with the gatekeepers might be necessary, but it was not sufficient to become a bona fide movie star. And second “Most of the men are such horrors that they [the actresses] deserve all they can get out of them!””

““Six women who had professional dealings with him told me that, between the nineteen-eighties and the late aughts, Moonves sexually harassed them,” Farrow reported, complete with four names and various dates. So valuable was Moonves to the CBS board that for a few weeks the company resisted even Farrow’s revelations (rarely a good idea). When talk of one hundred million dollars in “severance” payoffs to the abusive executive surfaced, however, Farrow struck again with six more accusations. From the 1980s to the early 2000s, the several-hundred-million-dollar man at CBS had been jumping everyone from female producers to female massage therapists. Like Weinstein, Farrow reminded his readers, “Moonves was a great friend to women, helping to found the Commission on Eliminating Sexual Harassment and Advancing Equality in the Workplace, which is chaired by Anita Hill.” This founding father of the Commission on Eliminating Sexual Harassment was not some single good guy looking for dates; this was a married man acting out so badly that most masseuses told the hotels they would not go to his room.

And so it seems that after the Supreme Court issued its mealymouthed “guidance” for companies seeking to avoid strict liability for sexual harassment of their work-force, resourceful harassers assembled their protective systems. Those who could negotiated for big-ticket employment contracts that provided them with huge separation bonuses without regard to fault. Looking at a multimillion-dollar payout for an exec, companies had a lot of money to “settle” with the complaining employees. Similarly, the harassers in the entertainment industry directly affected the success of the same agents the victimized artists had. Kantor and Twohey and Farrow all reported countless cases where the artists complained to the agents who are supposed to represent them, with no results.

Discrimination law builds in a radical imbalance of legal firepower to begin with. The federal civil rights law gives accusers a very short time to file after the offense, and the nature of sexual harassment makes it very hard to aggregate the claims into a class action. So there’s little money for plaintiffs’ lawyers, except in the rare case of a highly paid accuser like Gretchen Carlson at Fox News. The accused perpetrators have lots of money for lawyers — for lawyers to threaten defamation suits against the accusers, to claim libel if the whistleblowers get to the media, and to negotiate airtight nondisclosure agreements with extortionate penalties. In the aftermath of Weinstein, after scuba instructor Melanie Kohler posted on Facebook accusing Hollywood producer Brett Ratner of rape, he filed a defamation suit against her.”

“In the first few weeks after Milano tweeted, seventy-one men, mostly from media but also from other sectors, fell from power.”

“As of June 25, 2018, ALI reporter Stephen Schulhofer had identified 222 very public individuals who have been sanctioned for sexually inappropriate behavior in or related to work. Of these, there were 53 in media, 7 in business or nonprofit, 36 politicians (some involving their private lives), 89 in entertainment, 12 academics, 4 in sports, and 21 others. In a different tally going back to the Bill Cosby trial, the crisis management firm Temin & Co. toted up 417 major offenders (407 men), 348 with sanctions.”

“His accuser, Leeann Tweeden, a radio host and model, was a professed conservative, and news of her accusations had leaked to the conservative talk show The Daily Caller before she went public. While on tour entertaining the troops, the then-comedian, Tweeden contended, had forced a full-tongue kiss on her in the guise of rehearsing their show. Then he put his hands over her breasts while she slept on the military plane taking them to their next gig. She didn’t have a picture of the tongue kiss, but she had a picture of the breast episode, with Franken grinning into the camera. Someone had circulated it to the tour before she woke up. Franken was a little remorseful. The photo was clearly a bad joke, he said, but he didn’t remember forcing his tongue into Tweeden’s mouth.”

“Six more women came forward with stories about Franken. Senator Franken grabbed a butt when posing for a photo op at the Minnesota state fair; two anonymous women reported being butt-grabbed by Franken at Democratic campaign events; an army veteran told of Franken grabbing her breast at a photo op on his USO tour; a congressional aide and an elected New England official each said he tried to force a kiss on them during taping of his radio show. Unlike the Senate when Anita Hill came forward in 1991, in 2017 the legislative body included several women. Senator Kirsten Gillibrand, who had been the point person fighting sexual harassment in the military for years, was now alarmed. While the Senate was waiting to see what Franken would do, on December 6, a writer for the prestigious Atlantic magazine came forward to say that Franken had “copped a feel” when posing for a picture with her.

Gillibrand, followed immediately by dozens of her male and female colleagues, including Minority Leader Chuck Schumer, called on Franken to resign. On December 7, 2017, he did so.

Liberal pundits, some of whom were Franken’s social friends, were not pleased. “Heady times for women at last being heard,” Daily Beast columnist Margaret Carlson wrote. “But questions abound. There is also value in finding out if any of Franken’s accusers told someone in real time about the conduct, as victims usually do, and if they happened in the work setting or were a professional power play.” Apparently Carlson had missed the report in Politico, published just two days before her column, that at least one victim had done just that: “Two former colleagues of the woman [accuser] independently corroborated her version of events, including Franken telling her he had the right to try to kiss her because he was ‘an entertainer!’ The first former colleague interviewed by Politico said she was told of the incident in 2006, shortly after it happened. The second former coworker said she was made aware of the encounter sometime in 2009 or 2010.””

Conclusion

“In 2011, in a case called Wal-Mart v. Dukes, the conservative Supreme Court had shut down any incentive lawyers had to represent women in discrimination cases by making it much harder for them to consolidate their claims into one class action under the civil rights laws. Such class actions can bring huge damages, and the lawyers can receive large fee awards. Once the court decided Wal-Mart (by a majority vote of all five Republican-appointed justices), there was little incentive for lawyers to represent women plaintiffs in most employment cases. So, for the vast number of women who experience harassment, there are no legal services. “We need to re-incentivize the market,” Robbie thought. “Big firms can’t take plaintiffs’ discrimination cases because they’re conflicted. Most of them represent corporate clients who are vulnerable to claims of discrimination. We need to change the landscape to make it desirable for lawyers to bring these cases.”

Kaplan, an icon of the gay legal movement, had been thinking about the model the gay rights activists had used in 2008 in challenging California’s anti-gay marriage initiative, Prop 8. In confronting Prop 8, Chad Griffin, now head of the major LGBT organization the Human Rights Campaign, and his Hollywood partners like producer Rob Reiner, had started a not-for-profit and raised money to pay A-list lawyers Ted Olson and David Boies (the same David Boies who now represented Harvey Weinstein) to bring the lawsuit. Movements stand on the shoulders of the ones that went before. The Prop 8 campaign is where the idea for Time’s Up Legal Defense Fund, to represent women like Melanie Kohler in sexual harassment lawsuits, came from.”

“Time’s Up Legal Defense Fund was the most successful Go Fund Me campaign ever. By the time the fund launched, it was sitting on $13 million. As of this writing, the fund is north of $20 million. Kaplan had been a longtime member of the board of one of the feminist organizations going back to the golden age of the early 1970s — the National Women’s Law Center in Washington. She called up Fatima Goss Graves, the CEO of the Women’s Law Center, and asked her if she’d like to have $20 million to spend on lawyers for women’s rights.”

“The new fund was particularly tasked not with taking cases for rich white actresses from the Technicolored world of movie sets, but with the vastly larger number of cases where the plaintiffs could not afford lawyers. That meant a lot of color: blue collars, black and brown skin tones. And, as it turned out, golden, as in Golden Arches.

On May 22, 2018, the National Women’s Law Center announced its first big Time’s Up case. Ten McDonald’s employees were bringing sex harassment charges with the federal Equal Employment Opportunity Commission. They charged McDonald’s, the franchisees who owned the stores they worked in, and a company-owned store with violating the Civil Rights Act and various state laws. Since the law does not allow true class-action cases, the ten plaintiffs were asking the EEOC to consolidate its investigation, at least.

A year or so earlier, Tanya Harrell had been minding her own business working at the counter and as a cashier at a McDonald’s in Gretna, Louisiana, outside New Orleans. A new employee, to whom she had been friendly, came up behind her and grabbed her private area. She pushed him away: “What are you doing?” Undaunted, he came up behind her again and grabbed her breasts. Grabbing, grabbing, asking her to touch him. Finally she complained to her shift manager. The manager “suggested that [he] and I were romantically involved and that the touching was consensual.” The other manager thought she was “childish to complain about it.”

She felt helpless and exposed, as if there was nothing she could do to protect herself from his touch. She needed the $8.15 McDonald’s was paying her to survive. Three years before, she had quit high school because her grandmother, who she lived with, was sick, and she had to have money for medicine and doctors. She gave up her dreams and started working at $7.45 an hour at her first McDonald’s job. She left that one and went to work for a different McDonald’s, because the first job didn’t schedule her to work long enough to make the money she needed. Now she made more, and the outlet was closer to home. But right after the first incident of harassment, a second coworker forced her into the men’s bathroom, pinned her against the wall, took out his penis, and tried to have sex with her. All she could do was cry and cry until he finally stopped because he heard the manager calling for him. She knew not to expect help, but she told the manager, who treated it like nothing. “Where were you,” the manager said. “I was looking for you.” “Where else could I be?” Harrell asked. “This dude had me in the bathroom, trapped, choking me, harassing me. Harrell started having a terrible time coming to work. The manager kept threatening to fire her.

Perhaps the most harrowing of the dozen complaints in the Times Up case came from a fifteen-year-old in a McDonald’s in St. Louis who complained that an older male employee had said to her: “You have a nice body; have you ever had white chocolate inside you?” When she reported the remark to her manager, she said, she was told, “You will never win that battle.” Unsurprisingly, nothing was done.

Having to deal with rubbing, touching, choking, grabbing, with coworkers exposing themselves, all the way to assault — the charges against McDonald’s make for an unhappy repast. Sexual harassment at McDonald’s had been cooking along for years. In 2016 three women’s organizations, the National Partnership for Women & Families, the Ms. Foundation for Women, and Futures Without Violence, commissioned the well-respected Hart Research firm to survey fast-food workers about their experience with sexual harassment and abuse. A staggering 42 percent of women in fast-food businesses reported being harassed at work. Twenty-one percent experienced harrowing retaliation — schedules messed up, hours reduced — for resisting or complaining. African American workers (33 percent) and Latinas (32 percent) are more likely to face these types of work disruptions than are white women (25 percent).

The offenses ranged across the fast-food industry, but since 2012 the iconic McDonald’s — the second-largest private employer in the world — has had the bad fortune to be in the sights of the formidable labor union Service Employees International Union. Ideally, SEIU wants the company to agree — and contract with its franchisees to agree — to let the union try to organize employees, not to wage a campaign against the union when it comes in, and to recognize the union as the employees’ bargaining representative when a majority of workers sign up. The SEIU has its work cut out for it, because the employees are scattered, low wage, and doubtless often undocumented. “The union has spent its members’ dues money in the past two years attacking the McDonald’s brand…in an unsuccessful attempt to unionize workers,” the company said in a statement in 2015.

The union, facing dizzying odds against a conventional organizing campaign in that environment, has tried a number of bank shots to get the giant company’s attention. Several regional groups, called “Fight for $15" from the campaign to raise the minimum wage, are now joined in the National Fast Food Workers’ Union, an affiliate of SEIU, Fight for $15 committees used walkouts and demonstrations to campaign for minimum-wage hikes in cities and states around the country. Starting in 2012 the fast-food movement launched a growing series of one-day strikes for higher wages and union representation. Initially in single digits, by 2015 the one-day strikes had spread to scores of cities around the country and closed down many fast-food outlets. The campaign has succeeded in a lot of places — New York, Los Angeles, San Francisco, Seattle. The movement has started suing for wage theft, alleging that the employers were not crediting the workers for the hours they worked or the minimum wage they earned.

A few months after she quit high school to work for $7.50 at McDonald’s, Tanya Harrell’s friend David, who worked at another McDonald’s, told her about Fight for $15. She started talking to the other workers at her McDonald’s, doing education work and passing out fliers.

In 2016 the union organized a handful of sexual harassment complaints against McDonald’s, filing with the EEOC and starting the slow process of getting them to court. McDonald’s responded with a unified defense, organized by Jones Day, then the largest law firm in the United States. “Zero tolerance for any form of sexual harassment,” McDonald’s intoned.

The plaintiffs say there is zero enforcement of the zero tolerance policy. There is no training. McDonald’s sends a packet to the franchisees to hand the employees, with boxes to check. Even a help line for employee complaints just gets turned back to the franchisee. And the union had a devilish time finding attorneys to defend the female plaintiffs they unearthed in 2016. The individual claims of low-wage employees are not worth much, under the tight-fisted federal law.

But, after the Weinstein fall, the organizers thought there was a better possibility of successfully pursuing the sex harassment claims. Working on organizing since 2012, the union movement had compiled huge lists of workers in these stores, active on whatever issues are important to them. When the union decided to take another run at the sex harassment problem, all those networks were activated around this particular issue. They reached out person to person and one on one. They identified workers who could file a claim, were willing, and were willing to use their names.

The organizers were hoping to bring a lot of cases and use the EEOC process for consolidating the investigation. As we saw, in Wal-Mart v. Dukes, in 2011, the Supreme Court had ruled that scattered employees with individual complaints could not bring class actions against an employer, but the fast-food organizers would get as close as they could.”

“On May 22, Time’s Up announced the litigation. It’s going to be a long journey, but, Harrell says, whatever it takes, she’s up for it. “I do half of it knowing that God is always good,” she says. “I hold my truth and I feel a lot of empowering from him. And I have two younger sisters and I want to be their role model and make change in the world.”

“It’s the union that we need,” she says. “We really need the union. This is wrong what McDonald’s seeks to do. They want to have everything, half the wages we need, no training for sexual harassment, no training for the managers.”

As she goes forward, Harrell says, she doesn’t feel so alone. She got a lot of peoples’ numbers after the meeting in the hotel conference room, and they stay in touch. Now she has the group behind her and she loves them more than anything. At the march to the McDonald’s headquarters, the women held the banner, but the men at the end of the line chanted: “We’ve got your back. We’ve got your back.”

Oh, and on August 13, 2018, Tanya Harrell went back to school. It had always been her dream. With agonizing slowness, the EEOC was “investigating” the cases.”

“On June 6, 2018, more than 60 percent of the several hundred thousand voters of Santa Clara County, California, removed criminal trial Judge Aaron Persky from his post. No judge had been recalled in California in almost a hundred years. Two years before the recall, on June 2, 2016, Judge Persky had sentenced defendant Brock Turner to six months —with good behavior, in California, three months in jail. A jury had found Turner guilty of three counts of sexual assault for his attack on the victim, one “Emily Doe,” passed out drunk.”

“The party had confronted its sad legacy of defending abusers in the name of sexual freedom. In face of painful pushback, they rid themselves, as we have seen, of the albatross of Al Franken. Senator Kamala Harris was now sitting on the Judiciary Committee in Al Franken’s seat. (Imagine if Franken had been sitting on the Judiciary Committee when Christine Blasey Ford sat down to testify.)”

“The gender gap in political support between men and women in the midterm elections reached a record-breaking 22 percent. Michele Dauber’s new organization, #Enough Is Enough Voter Project, targeted a state rep in Washington who had been fired from his teaching job after a sex scandal. He resigned mid-campaign. Texas’s representative Matt Rinaldi lost his election after an Enough Is Enough campaign telling voters about his almost perfect record of opposition to protecting victims of sexual assault.”

“For the first time since the Weinstein story, a major media outlet resisted the pressure. We’ll just hire some lawyers to investigate, the CBS board announced, turning to a firm that normally did work for the network. Not that an investigation would help much anyway. As eighty-three-year-old board member Arnold Kopelson summed it up: “I don’t care if 30 more women come forward and allege this kind of stuff. Les is our leader and it wouldn’t change my opinion of him.” Word of a hundred-million-dollar severance package for Moonves began to circulate.

While CBS was debating how many women it would take to make them take the charges against Moonves seriously, on September 9 Farrow tested the limits. “Six additional women,” he reported, “are now accusing Moonves of sexual harassment or assault in incidents that took place between the nineteen-eighties and the early two-thousands. They include claims that Moonves forced them to perform oral sex on him, that he exposed himself to them without their consent, and that he used physical violence and intimidation against them. A number of the women also said that Moonves retaliated after they rebuffed him, damaging their careers.” Farrow’s report immediately added an update: Three hours after the publication of this story, CNN reported that Moonves would step down from his position at CBS. Later the same day, CBS announced that Moonves had left the company and would not receive any of his exit compensation, pending the results of the independent investigation into the allegations.”