Removing the veil from sexual harrassment

Dear Readers, Among the many fault lines being exposed in our country is “male privilege.” Women did not even have a legal right to vote until the 19th Amendment was ratified in 1920, a first step activists envisioned of women having the same legal footing as men.

Male privilege appeared to be on life support when the Equal Rights Amendment (“ERA”) was passed by Congress in 1972. Five years later, the ERA seemingly would soon become a full-fledged sister Amendment as 35 of the required 38 states had ratified it. However, a conservative backlash, led by Phyllis Schlafly, arguing that a constitutional amendment deemed and devalued housewives, stopped it cold. By 1982, it was dead.

The concept of equal rights received a booster shot when President Barack Obama, just days after his first inauguration, signed the Lilly Ledbetter Fair Pay Act into law, as the first major piece of legislation of his new administration. This law invalided a United States Supreme Court opinion and gave women the legal right to the same pay as men.

Just this year, on March 22, the Nevada legislature became the 36th state to pass the ERA (not withstanding the missed 1982 deadline). In theory, this leaves us just two states short of the magic 38 needed to pass an ERA.

Even with all this progress, the idea that women are the equal of men seems a far-fetched progressive dream. Bill Clinton, Bill Cosby, Harvey Weinstein, Louis CK, and, now, Judge Roy Moore, public symbols of the unwilling groping, innuendos, threats and silence women have had to endure because of a culture of male privilege. Women are furious.

Sexual assault in the workplace is supposed to be illegal, at least if an employer has more than 15 employees, as codified by Title VII of the Civil Rights Act of 1964. Powerful tools, such as the possibility of an award of attorney’s fees and an award for pain and suffering, are supposed to arm women against their male abusers. A survivor just needs to report the sexual harassment within 180 days to the Equal Employment Opportunity Commission (“EEOC”). The EEOC will, then, open an investigation, which can lead to a lawsuit. If the EEOC takes no direct action, it will issue a “right to sue” letter giving the claimant 90 days to file a private federal (or state) lawsuit.

For small-shop businesses, state laws are the only possible source of justice and, even then, options are limited. In many states, this is a grim prospect; for example, Georgia has no laws protecting against sexual harassment. If there is an actual assault, that is a different matter as any battery (touch without consent) is a potentially viable legal theory.

The problem (and this even applies to Title VII claims) is the price women pay for exposing a sexual pig is enormous. Women who step out to make a claim of sexual assault often find themselves traversing a walk of shame. William Kennedy Smith was acquitted in West Palm Beach, Fla., 20-odd years ago, because it was his accuser’s word against his. Anita Hill testified during Justice Clarence Thomas’ Senate confirmation hearings that she was sexually harassed. She was ridiculed by Justice Thomas’ supporters, endured painful and deeming public examination and Justice Thomas still sits on the Supreme Court. Monica Lewinsky was reviled and harassed because she had the temerity to challenge a president.

For far too long, we have taken too dim a view of a woman’s accusations against her harasser. Look at what is going on presently with Judge Roy Moore in Alabama. A solidly reported story of him being a child predator 30 years ago is being trashed as political tricks and “fake news.” As with all of these claims of a powerful man being a sexual abuser, witnesses have come out of hiding. We now know that it was common knowledge that, as a 30-year old prosecutor, he was enamored with teenage women.

Think about this for a moment. Judge Moore is not charged with a crime, so the idea of “innocent until proven guilty” is irrelevant. His accusers have not filed a lawsuit, triggering some sort of burden of proof. These women are just ordinary people, with no “skin in the game,” who will have to endure Hester Prynne dismissive glances from their neighbors from their small Alabama communities. A man accused of vile behavior is running for elected office, and a public is being asked to ignore that he is a moral midget.

At least if he gets elected, he might find that male privilege has been clipped. Congress is taking notice of the imbalance and uncomfortable process offered

victims of sexual harassment. Monica Lewinsky is not the only young staffer who found herself (or himself) being sexually exploited by a powerful man. It turns out that Congress has had a feckless process hiding a sexual predator playground. Claimants navigate a humiliating process to make a claim, yet, in the end, a non-disclosure agreement forever protects the identity of an anonymous predator. Even elected congresswomen, from both sides of the aisle, are now reporting they were victims of sexual harassment.

Women are furious. They are tired of being taken for granted and having to silently suffer sexual assault and priggishness. Virginia’s political landscape was upended by women angry about male privilege. Hillary Clinton was a horrible vessel for women’s ire. A better vessel may lead to a revolution in this country, upending the centuries of male privilege controlling the levers of power. It is coming, and sexual predators need to scurry for cover.

Local attorney Jim Rockefeller owns the Rockefeller Law Center and is a former Houston Co. Chief Assistant District Attorney, and a former Miami Prosecutor. Visit www.rockefellerlawcenter.com to submit confidential legal questions, and to review former articles and Frequently Asked Questions.

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