Jay Kaganoff, writing in the Washington Post says: “Fellow conservatives, it’s time to call on Clarence Thomas to resign.” No it isn’t. The controversy over Anita Hill’s allegations against Justice Thomas has nothing material in common with the cases of Al Franken, John Conyers, or Roy Moore.
First, Thomas categorically denied Hill’s allegations. Franken admits to some of the allegations against him. Moore admitted, at least initially, that he dated one or more of the girls in question and doesn’t deny that some of the handwriting in Beverly Nelson’s yearbook is his.
Second, Hill’s case was classic “he said, she said.” No one else testified that Thomas engaged in inappropriate behavior towards Anita Hill or any other female employee.
There are multiple witnesses against Franken, Conyers, and Moore.
Kaganoff says Hill had witnesses whom Joe Biden, then chairman of the Judiciary Committee, refused to call. In fact, there was only one witness who was prepared, initially, to testify that Thomas behaved inappropriately. That was Angela Wright.
But Wright was not a credible witness. During her interview with Senate Judiciary Committee staff, she refused to answer questions about her previous allegations against a former boss who, like Thomas, had fired her. The former boss’s supervisor told the Judiciary Committee:
I am struck by the startling parallels between what Mrs. Wright did [to my surbordinate] and what she is doing now. She vowed vengeance on a former supervisor for dismissal on the basis of incompetence. . . The entire process suggested a last-ditch attempt to stop the advancement of someone she resented.
Had Wright testified before the Committee, she could not have declined to answer questions about this without shattering her credibility. Thus, she would either have had to lie under oath or admit to a pattern of seeking revenge for firings by accusing former bosses of misconduct.
Accordingly, she elected not to testify. As Mark Paoletta has shown, the decision was hers, not Joe Biden’s. Indeed, says Paoletta, Wright signed a document memorializing this. (For more from Mark about Hill’s claims against Thomas, go here and here).
Third, Hill never accused Thomas of sexual touching or of demanding sex in exchange for career advancement. By contrast, Franken stands accused of multiple gropes. Conyers stands accused, among other things, of groping and seeking sex in exchange for advancing employees. Moore stands accused of molesting a 14 year-old.
Hill’s “harassment” accusations against Thomas are, essentially, that he asked her out on dates and talked to her about sex on occasion. These allegations have nothing in common with the allegations against Franken and Moore.
Nor do they materially resemble the allegations against Conyers. Both pertain to the working relationship between supervisor and subordinate[s] and both have something to do with sex, but the similarities end there.
Conyers is accused by multiple women of making their working life hellish. He did so through, among other things, sexual touchings, demeaning comments, demands for sexual favors, and exposing himself.
Conyers’ misconduct led to formal complaints against him that resulted in financial payment to victims. Hill never filed any sort of charge or complaint against Thomas. Her allegations against him came years after the fact during a contentious confirmation battle over a spot on the Supreme Court.
Nor did Thomas make Hill’s working life hellish. She followed him from one job to another and, as I understand it, the two remained on friendly terms for years, until she brought her allegations. Conyers’ victims got out of Dodge as quickly as they could.
All that really binds Thomas’ case with the others is that partisans and sloppy thinkers lump all of them under the rubric of “sexual harassment.” However, it’s almost certain that Hill’s belated allegations of Thomas — all of which he denied — would not state a claim for sexual harassment.
Sexual harassment occurs when a supervisor demands sexual favors in exchange for an employment benefit. That’s called quid pro quo harassment. As we have seen, Hill did not allege that this ever happened.
Sexual harassment also occurs when the employer creates a “hostile work environment.” An employer does this when harassment is “severe or pervasive.”
Hill alleged nothing more than requests for dates — apparently rebuffed with no consequences — and occasional comments of a sexual nature, such as mention of pornographic movies Thomas allegedly had seen. This does not satisfy the “severe or pervasive” standard.
If this isn’t obvious, consider the factors courts examine to determine whether a workplace is hostile for purposes of establishing sexual harassment. They are:
1) the frequency of the conduct; (2) the severity of the conduct; (3) whether the conduct is physically threatening or humiliating, or a mere offensive utterance; and (4) whether the conduct unreasonably interferes with the employee’s job performance.
All Hill alleged was the occasional “offensive utterance.” As far as I remember, she never claimed that Thomas’s conduct unreasonably interfered with her job performance. Indeed, no stable employee would be less able to perform her job as a result of occasional comments about pornography. Moreover, Hill no doubt considered her performance fine and there is no indication that it wasn’t.
In considering hostile work environment claims, courts “look at the totality of the circumstances, and view the harassing conduct in context, not as isolated acts.” The context here is a lawyer who followed her boss from one job to another, thrived under his supervision, and never filed a complaint against him.
And remember, Thomas denied Hill’s claims, and she was unable to produce any witness who claimed Thomas engaged in sexual harassment.
Jay Kaginoff says, “I believe Anita Hill.” That’s fine. Many do. But for the reasons set forth above, it’s not sufficient reason for Clarence Thomas to resign.