The avalanche of sexual misconduct allegations in the past two months has shined a stark spotlight on the pervasive problem of sexual harassment in America. The District of Columbia’s nonvoting delegate to the House of Representatives, Eleanor Holmes Norton, is familiar with the subject: As the first female head of the Equal Employment Opportunity Commission, she penned the original guidance on Title VII of the Civil Rights Act of 1964 that prohibited workplace sexual harassment.
Norton played a key role in the national conversation around sexual harassment even before issuing that 1980 guidance. She headed the New York City Commission on Human Rights when, in a 1975 hearing, sociologist Lin Farley brought public attention to the term “sexual harassment.” Before that, Norton, then a lawyer for the ACLU, represented the women of Newsweek in a landmark sex-discrimination suit, a case that became fodder for the short-lived series Good Girls Revolt. (Ironically, Amazon executive Roy Price, who pulled the plug on the show, has since resigned amid allegations of sexual harassment.) Early in Norton’s political career (she’s now on her 14th term), she was one of the congresswomen who interrupted a meeting of the Senate’s Democratic caucus to demand Anita Hill be allowed to testify about the harassment she said Clarence Thomas had subjected her to. And just this week, in a speech at the New York City Human Rights Commission, Norton said “Congress is floundering” on sexual harassment.
I reached out to Norton when this wave of sexual harassment allegations arrived in the halls of Congress, where, in light of accusations against elected officials like Rep. John Conyers and Sen. Al Franken (who announced a retirement and a resignation, respectively, after we talked) as well as Rep. Blake Farenthold, Rep. Trent Franks, and Rep. Rubén Kihuen, the legislative branch’s own convoluted procedure for sexual harassment complaints has come under criticism. (Rep. Jackie Speier said it “encumbers the victim in ways that are indefensible.”) Norton spoke on the floor of the House last week before the body agreed to a resolution mandating sexual harassment training for all members and employees (including interns and fellows). “It is important that powerful figures who play an outsized role in Congress be brought to the same level as other employers,” she said, advocating for a bill she authored, the Congress Leads by Example Act, that would extend the same rights that apply to private and executive branch employees—including protections for whistleblowers and a requirement to display workers’ rights in the office—to congressional hires. After her remarks, we spoke about this year’s reckoning with sexual harassment and what has and hasn’t changed since she started working on this issue decades ago. Below are excerpts from the conversation, edited and condensed for space and clarity.
Lila Thulin: What parallels and patterns do you see between that time of consciousness raising that you were part of in the ’70s and our current moment? What’s changed, and what remains the same?
Eleanor Holmes Norton: This is very important: In the 1964 Civil Rights Act, women got included as a kind a joke. So you can imagine that sexual harassment was nowhere foreseen as a workplace violation of the act. It’s a credit to those who wrote the act that it was written so broadly that today, there are even decisions that include transgender [people], for example. Who would have thought of that? The problem, though, and the reason that Congress deserves criticism, is that once it recognized that sexual harassment was a workplace violation in the late ’70s, that should have been the end of it.
What is shameful is how long it has taken Congress to catch up. And Congress only catches up when there’s an outbreak, and the outbreak is when some member of Congress gets caught. That’s what happened in 1995: It was Sen. Packwood. Then Congress is afraid to go home and say it’s doing nothing. So the Packwood controversy did do, if you will forgive me, some good, because 13 different statutes [enacted by the 1995 Congressional Accountability Act]—shows how much Congress excluded itself—were added. And still they did not do the whole thing. The self-protective instincts here are perhaps understandable—after all, Congress gets to pass the laws, and when nobody’s looking, it simply exempts itself.
Now, I am not with women who say, “Men, it’s time you do something about it.” That’s like saying, “White people, it’s time you do something about discrimination or segregation.”
The reason we got the 1964 Civil Rights Act was because black people took to the streets for 10 years. They had worked through the courts for more than 100 years after the Civil War with some progress, but it was not until after the Montgomery bus boycott that something got done. I’m not suggesting that women need to get into the streets, but I am suggesting that since much sexual harassment—by no means all—is the result of interaction between men and women, there is no precedent, in the history of the world, of the accused, all-powerful party deciding to reform itself. Those who are at the other end, it seems to me, have to rise up.
It’s been nearly 40 years since you wrote the guidelines saying that sexual harassment was unacceptable in American workplaces. Have you been discouraged by these new revelations, or does it feel like progress?
I’m sure there’s been progress; I know that by looking at the number of EEOC complaints, and I judge it against when there was no sexual harassment provision at all, so that’s a low bar. There were some women on the House floor today who would say, This is a watershed moment or This is a historic moment. That’s not what it is. I don’t agree with that at all.
I don’t belittle the significance of [the resolution passed in the House mandating sexual harassment training]. The reason I don’t belittle the significance of training, posting, and the rest is that I am convinced that many men and women—and I say both—do not understand what sexual harassment is. We had to define it at the EEOC, and that definition played out in case after case. What is this? Do men think that this is playful, to be welcomed? At the commission, we used the words unwelcome advances. It does seem to me that the person who engages, man or woman, ought to be able to tell if it’s welcome or not, for example.
But I must stress that if you were to go up to the average member of Congress and say, “All right, give me some examples of sexual harassment,” I think some forms of flirtation would not come out. I think some of what we have heard women say, including certain kinds of touching—I don’t mean grabbing somebody’s behind—I don’t know if women believe if they will be seen as supersensitive. It does seem to me that the notion of training and what you might be liable for should be discussed. Almost all of the discussion, whether on the floor or in commentary, seems to assume we all know what we are all talking about.
This is a baby step. This is a step not to write home about. I think that people do not understand, in any detail, what sexual harassment might be. I do believe that there would be women who would be flattered by it. For them, it is not sexual harassment because they don’t think it’s unwelcome. That kind of distinction needs to be understood.
When you wrote that first guidance on sexual harassment for the EEOC, did you think it was just a first step?
First let me say, when we did the guidelines, I didn’t regard myself as a cop on the beat; I was just trying to change behavior. The reason I wrote the guidelines really didn’t have to do as much with what you’re hearing today. It was atrocious behavior. One that comes to mind was some supervisor locking a woman who worked in a bank in a vault and virtually assaulting her. Yet the statute had not defined even this conduct as sexual harassment.
A woman had to have immense courage to file. And yet they filed, and no case had got beyond the district court, so it was kind of being settled on a case-by-case basis. No case had gone to the Court of Appeals. So I called employers, and I laid out for them—and by the way, some of this I’ve come to understand can reverberate the other way—“Look, if you do not know what it is, and you get blindsided with a complaint, you’re going to be embarrassed and pay damages.”
I think what we haven’t done—I tell you, I have been in meetings with women. I was in one last night, and I was a little discouraged by it. These are women who have been most active on the issue. If you are in a room with people who agree with you that this is an outrage and you don’t see coming at you the other side—I guess part of this is my training as a lawyer—and so if you say, for example, “Make sure that the settlement is made public …” Wait a minute. Are you sure the woman wants that?
Think about this: Why do people settle cases? Because they’re in some jeopardy, and rather than risk going the full way to litigation, they take a chance. I encouraged settlement when I was at the EEOC because when I first came, almost nobody was getting a remedy. I would say, “This woman says you failed to promote her.” (Now, this is not me talking. These are investigators.) “You can go through the EEOC process, you can have a hearing … or you can decide to promote her, give her a letter of recommendation, or pay her some damages that may be more if she proceeds through the process.” The employer had to think about that.
Going back to when you marched with other female congresswomen to demand they let Anita Hill testify during Justice Thomas’ confirmation hearings, it seemed like the question posed to those senators voting on his confirmation was, “Do we believe this woman?” Do you think that we’ve made progress on believing women, and why was that question so important during in the ’90s?
I think that was even worse, and by the way, the Democrats were in charge of the Senate then. I don’t think any of them said—I remember thinking at the time that I had never seen a more credible witness. You want a witness like that to go up. I was befuddled—I think they had gotten so far in the process. The Democrats were unwilling to take this issue on full-front; they just wanted it to go away. And here it was a woman against a powerful man. I don’t remember them saying, “She isn’t credible; we believe Clarence Thomas.” I think they were embarrassed by it; I think they were unprepared for how to handle it. There were only two women in the Senate. I don’t believe either of them was on the committee. And their notion was, “We’ve gotten this far; just let this go away.”
Do you believe the women alleging sexual misconduct against John Conyers in the House?
My own notion about believing a woman usually comes after hearing a woman. I heard the Roy Moore women. I read the reporters’ accounts of what they said, the detail, whom they had told at the time. I suffer from a being a lawyer, so I’m not going to say to any woman who pipes up, “I believe her.” I don’t have that kind of—I don’t even call it evidence—I just don’t have that on John Conyers.
Again, I remember at the EEOC, if there were such a complaint, and there were many complaints of that kind, those parties often wanted it not to be disclosed, and the reason the woman didn’t want it to be disclosed is that she valued a remedy, which could have been damages over retribution. As a lawyer, I’m interested in remedies, not I-told-you-so-I-got-you. The women who came forward have come forward way after the statute of limitations, and they have done a public service. But we need to know, for example, if cases were settled. We need those women to be able to speak up and to say if they had had their druthers, would they have preferred to speak out. Remember, if they had spoken out, then whoever the man is would not have agreed to a settlement. This is the stuff that has not been discussed.
Because they sign a nondisclosure when they settle.
It’s a quid pro quo. Why do you settle a case? Getting something. Nondisclosure is often the case, and again, we’re thinking sexual harassment. But it’s often in litigation not to discuss or incriminate me after you’ve taken my money [laughs]. This is a quid pro quo process. So we need to understand that and then make a decision.
Do you think that if a member of Congress is accused of sexual harassment, such as John Conyers or Al Franken, who has issued an apology, that they should step down from their roles or resign? [Editor’s note: This interview was conducted before Conyers announced his resignation, citing his health as a concern, and before Franken announced his resignation. Wednesday evening, amid calls from female Democratic Senators for Franken to step down, Norton tweeted that resigning would be the “right thing” to do.]
I certainly would respect their right to be completely heard in the ethics process because what I’ve heard hasn’t been about any of the circumstances. With an elected official, I’d been more inclined to say, “You have to go before the people who sent you here.” The apology has to be taken from them, then to say Congress should take it upon themselves, I’m not sure—I got to look this up—can we expel somebody? I don’t even know that. The last thing I want to do is to see this process amount to an apologia to the men who are accused. So those of us who believe process is there for a reason ought not say as a result we don’t believe the women.
In almost none of these cases have we heard from the women, therefore I think the way to respond there is to let us hear from them, and therefore the nondisclosure would have to be relieved, and it seems to me that ought to be on both sides. Now, I doubt that these men want to do that. Where does that leave us? That is a written contract.
I was wondering what your experience as a woman in Congress has been, whether you had a #metoo story you’d be willing to share or whether you’d heard from other women on the Hill over the years.
I noticed that all of the women who came forward—I don’t think, so far, I’ve heard a woman who’s been a woman of Congress. Mary Bono—I was on television with her—said someone grabbed her.
Jackie Speier said that when she was—
No, she was an intern or something. She was not a member of Congress.
Yes, I meant—
Shucks, when I came to Congress, I was 50 years old. I’d already had a career. Fiftysomething-year-old women have not been the prime targets. Look, they’re going after these young things. You go up to the Congress, and you’ll see these pretty, very young women. It looks like the men who have decided they want targets have not gone after women in Congress where they may have been more fearful but after sweet young things, who they think may be flattered that a powerful man would notice them.
You earlier were talking about how the fight against sexual harassment grew out of the fight against racial discrimination—
Yes. The only reason we have the statute is because of the Civil Rights Movement. Women were thrown in, for no good measure by the way, that’s true.
Do you think the movement around sexual harassment right now is inclusive enough, given how indebted it is to the work of black women early on?
The only women we pay attention to are because of the men they are accusing. I am still in the process of trying to translate that into the everyday experiences of women, because they will not be dealing with powerful and famous men. They’ll be dealing with their supervisor.
Frankly, the women who I admire most are the ones who come forward having seen the Weinstein women, the Congressional women. They’re not just alleging; they have to come forward within 180 days of the alleged incident, they bear the burden of proof, they have real cases. They’re not talking about cases from 10 years ago or cases where the statute of limitations is run. That is very encouraging. That is happening to women in the workforce based on what they are hearing about women coming forward against powerful men.
Understand that the reason I admire them so is this notion that it’s unwitnessed and uncorroborated. Men don’t do sexual harassment in the presence of other women and men. Anita Hill was an unwitnessed, uncorroborated matter when she said what she had experienced. And those who chose not to believe her—and it’s interesting, at that time, there was a poll that showed that black people were so glad to get a black person onto the Supreme Court that they hadn’t looked deeply into Clarence’s anti-black, anti-woman work when he was chair of the EEOC, and therefore they were for him, because he was black! [Laughs] That did break my heart.
I bet. Do you think there is going to be a Year of the Woman effect, like in 1992?
Meaning that we would have triple the number of women elected in the Senate? I absolutely see it! I see it in Virginia where Northam won and 67 percent of his vote was female. I think there is some reason to believe that women are activated and energetic. This may be an aftereffect also, because now we hear about the women who accused the president. They’re coming forward. Let’s see if that can have an effect.
Last question: What has been the most frustrating in your career of fighting against sexual harassment?
I am frustrated by what I most respect, which is a process that requires one person to testify against one man on an uncorroborated act. There is no answer to that if you believe in the rule of law. So the answer is beginning to come forward now. What I think is happening now is that the women filing against the EEOC have corroboration: They told somebody immediately after it occurred. It wasn’t witnessed, but it won’t be their word against someone else’s; that is very difficult to prove when you’re talking about an intimate relationship, which is per se unwitnessed. He’s not going to grab your behind with a lot of people looking. He’s going to wait until you come into his office and nobody else is there.
Because I do believe in the rule of law and don’t automatically believe a woman because of how strongly I feel about sexual harassment, I have to make this consistent with the rule of law, and I think we can do that. For example, we should be saying to women: If you are harassed, immediately tell somebody who can corroborate it close to the time of the incident. In fact, tell more than one person. Tell him that was unwelcome. There are some bosses who think that it’s always welcome, because I’m a powerful man and why wouldn’t she want to look like she is attractive to me. That may produce an apology from him. Women—we’re really not talking about this offense openly enough, and that’s what we need to be doing.