What came before the #MeToo movement? Acclaimed author Linda Hirshman's new book "Reckoning" traces 50 years of brave women, crucial court battles and social awakenings that preceded the movement we're witnessing today.
This conversation illustrates in vivid detail the decades of struggle to hold those in power accountable, and introduces you to the women who worked tirelessly to make that happen.
LINDA HIRSHMAN: The Republican party has come to own both the traditional patriarchal oppression of women and the sexual revolution, Libertine oppression of women. Congratulations, GOP.
CHRIS HAYES: It's the party of Mike Pence and Donald Trump.
LINDA HIRSHMAN: Exactly right. They have 100 percent of the bad things that can be done to women, they support. The Democrats have been, shall we say ambivalent, but slowly but surely they have moved away from defending Bill Clinton and in the direction of defending women's claims to equality and respect, so politically unlike '98 where someone like me had nowhere to go, women now have someplace to go.
CHRIS HAYES: Hello and welcome to "Why Is This Happening?" with me, your host, Chris Hayes. We're going to get into today's conversation, which is a really good one, but before we do, I just want to give #WITHpod heads that may live in the New York City metro area, or who may be traveling to the New York City metro area on December 8th — or who want to make a trip out of a trip to New York — a heads up.
Because our final fall #WITHpod date's been announced. It's going to be December 8 at Town Hall, which is a great space, a huge space Sunday night with the one and only, the inevitable, the incomparable, the redoubtable, Tony Kushner. One of the five most important playwrights of our time, probably I think it's fair to say. A Pulitzer prize winner, Tony winner, and Oscar nominee. I think one of the like, maybe top 10 most important writers of our time; an absolute goddamn genius. An incredible body of work.
He is also, if you do not know this about Tony Kushner because writers — I'm going to tell you the truth right now — writers can really go either way in terms of how good they are talking. It's a funny thing about writers like sometimes they're not great conversationalists because there's different skills and I always think like, "Oh, you wrote such an interesting book." And then he talks to you. And you're like, "Yeah, I don't know."
No, Tony Kushner is not that way. He's just got an incredible mind and he's incredibly lively talker and conversationalist — like his mind works a million miles a minute and if you've ever seen him talk, you can see that and I just think it's going to be an incredible conversation. You can go to ticketmaster.com search for my name Chris Hayes and you can get tickets. We would love to see you there. All right. Today, let me give the backstory for why I wanted to do today's conversation.
We are at the two-year anniversary, more or less, of the Me Too movement. The first reporting about Harvey Weinstein came out in fall of 2017 in both The New York Times and the New Yorker. There are two books: The reporters that both won the Pulitzer prize for that reporting the team at The New York Times, Jodi Kantor and Megan Twohey, and Ronan Farrow at the New Yorker, have books out and most of those books are about sort of the process of reporting and breaking through in this moment.
And then of course that reporting about Harvey Weinstein, which was also, I think happened in the context of the things that happened with Bill Cosby. It was like a Jenga tower, like there was this big teetering tower of sexual predation, harassment and assault that was holding together somehow against all odds. And then the Weinstein Jenga block came and it got pulled and like it just felt like it all crumbled — or not all of it as we have learned and seen — but a huge part of it, right?
Like story after story after story. People coming forward, women and some men feeling for the first time that they were empowered enough to talk about what had happened to them. Huge social reverberations that happened not just with powerful men, but just social settings. People talking about men in their social circle who had been creepy or weird with them and talking to friends about it or talking about ex-spouses or boyfriends or lovers that had done things that at the time they just kind of swallow it and didn't do anything with, but revisiting in the context of the truth that was being poured out were realizing was really messed up or assault or traumatic.
This incredible seismic cultural moment happened and it's still happening, which is good. I think it's been an incredibly important moment for a million reasons. The one thing that I think has been missing a little bit in the conversation is just like the prehistory of it. There was this sort of sense of like everyone was just going along and then boom, all of a sudden, Oh my God, Oh you can't see anything at work anymore. Like blah blah blah. Oh has Me Too gone too far? Like, well what about the men? What did we do with the men?
Oh, like who else is on the list of. Like all of the conversations were very ahistorical I found, not all of them, obviously there's a million amazing feminist writers who have been situating it historically and in context, but the kind of like top level news cycle driving conversation that happened in the wake of Me Too two years ago in the wake of Harvey Weinstein tended to be very ahistorical like this totally new thing has happened and what are we doing as a society about it and it's not a new thing.
Like it's just not, I mean it sure as h--l is not a new thing of like men sexually preying upon women is sure as s--t not a new thing, but even the specific dynamics that I think a lot of people have pointed to as new or like we're having a new conversation about is older than people are sort of willing to give it credit for or talk about. And that's why I wanted to talk to today's guest.
So just a heads up before we get into today's conversation. In the conversation we do talk about sexual assault, sexual harassment, just so that you're aware of that as you head into this conversation, particularly if you're someone who has personal experiences for whom that's a difficult thing to listen to or if you've got kids around. I know that sometimes people listen as a family enterprise, listen to WITHpod, just know that's where this is going.
Linda Hirschman is a fascinating writer and thinker. She's got a Ph.D. in philosophy, if I'm not mistaken, and a law degree and was a philosophy professor for years at Brandeis University. aAnd then she stopped doing that and she's been writing books, all kinds of books for popular consumption. She wrote a great history of the LGBT movement that I read and really liked. And she has a whole variety of amazing experiences that she brings to her work. She really is like a rigorous theoretical philosopher. She is a very out, proud, prolific feminist.
She is a historian. I mean not a historian by training, but in the work she does, she brings a kind of like historian lens too and she's also a lawyer on a legal thinker. So she's got an incredible background and there's a bunch of books obviously on this topic, but her book, which is called "Reckoning: the Epic Battle Against Sexual Abuse and Harassment," takes this historical approach in a way that I found really illuminating.
Just taking this moment, taking a step back and going back decades and tracing through the lineage of the term sexual harassment, how it became a term that we thought of, who first theorized the notion of it and then how it intersects with the legal system. How we came through the courts to understand that a boss who makes his female employees look at pornography is doing something that violates the law and violates that employee civil rights in a very deep and pernicious sense.
That was not the case for a long time. That was a fight that had to be waged and this book is a chronicle of the history of all the things that happened in the, what she calls, epic battle against sexual abuse and harassment before we got to the moment when the New York times press publish on the Harvey Weinstein exposé. So if you have been thinking about this issue, if you've been paying attention to it.
I found for myself, and I'll just sort of cop to my own historical ignorance here, I learned a ton from this book about what was going on among people that you've never heard of. These women who were incredibly courageous, who came out and sued their bosses and put a name to themselves in the face of tremendous odds to come before the court and say "This man abused his power over me and it was a violation of my civil rights" and how the law came to recognize what that was.
Linda is also just an absolute character. She's fantastic, she's witty and she's funny. She's got a very dry and droll sense of humor and she's incredibly erudite and she is a great companion for an hour-long conversation.
This book is interesting because it comes out at a moment when there's been a number of books out about the Me Too moment. But what I thought was distinct about what you're doing is the kind of prehistory. There's a sort of sense that like, all of a sudden this happened, and what this book does a great job of showing is that there's a long prehistory to this moment. I wonder maybe if we could just start with like the very first conceptualization of the problem of what sexual harassment is or unwanted sexual advances are in the context of either street harassment or employment scenarios. When do people, theorists, lawyers, plaintiffs start to think about this?
LINDA HIRSHMAN: It's definitely the product of the second wave of feminism, which started with the publication of "The Feminine Mystique" in 1963 or ‘64. That's when it started and I think that and a whole bunch of things came together.
CHRIS HAYES: In the first wave.
LINDA HIRSHMAN: Exactly. So in 1848, women were not integrated with men in the workplace.
CHRIS HAYES: Right. It's a funny thing because whenever you, it's always a striking fact that when you look at any random photograph, it's like, here's a New York City street scape in 1910 and it's all men. I mean, public spaces are just dominated by men.
LINDA HIRSHMAN: And so you had the sexual revolution happen almost exactly the same time as the second wave of feminism. So women are exploding out of the patriarchal family, right? They're no longer the property of their fathers. And the second wave of feminism is saying for the second time, actually, that they should be working in the workplace.
So you have both a real change in the physical presence of women in the workplace and on the street, and you have the sexual revolution, which says all bets are off as far as what sexual relations should be. And those two things together were just a Petri dish for sexual abuse and harassment, especially in public sexual abuse and harassment and for feminist resistance to the public sexual abuse and harassment.
CHRIS HAYES: It's funny that you say the sexual revolution as being an ingredient in the Petri dish. Because there's a kind of conservative argument that has been made — Ross Douthat made it in the Times a few years ago — that sort of says like, if you look at Roman Polanski, if you look at the stories about what was happening to young women fans, for instance, of rock bands, right?
Who at the time it was like, "Whoa groupies" and now it's like, "Oh, Jesus Christ, they were 15 years old." That was assault. That was a crime that was happening at the time. It's, "Oh, isn't this crazy? It's wild. It's free." But you sort of take that line a little bit, like you do identify part of the facilitating condition for sexual exploitation, harassment being the ethos of the sexual revolution.
LINDA HIRSHMAN: Correct. Unlike the conservatives, I do not want to return women to the patriarchal control of their fathers and then their husbands. Okay. So I get off the Ross Douthat boat right there. But I also don't want them to go from being governed by their fathers and their husbands in the, shall we say, Ross Douthat pre-Trump version of the conservative idea of proper sexual relationships into the exposure to the aggression and abuse of all men. I don't want them to go from the abuse of one man to the abuse of all men.
CHRIS HAYES: And you think that's a fair characterization for the lived experience. So this is happening a lot in the 60s and 70s.
LINDA HIRSHMAN: It would seem from their self-reporting that this is a fair report of their experience. And if you read, I have the advantage of being so old that I was actually an adult in the 60s, so I remember it. And one of the sort of "let it all hang out," Erica Jong kind of things was a very big movement for lowering the age of consent, right? So your 15-year-old sexual encounter would no longer be a criminal act. And that culminated in the publication of a very controversial book in 2000 or something making a very powerful argument for lowering the age of consent.
So yes, I think that the kind of sexual free-for-all that I'm describing from the 60s manifested itself graphically on the ground in the lived experiences of women. And one of the interesting things that happened is that because we live through this era of unlimited sexual access to women outside the household, many of us lived through it and we did the best we could to make a life for ourselves in those shark infested waters, right?
Many women of my generation, boomer women, argue that sexual harassment and abusive women is not so bad because we lived through it and we made compromises with the abusive treatment that we received. And we have to live with ourselves from that.
CHRIS HAYES: Yeah, there's an interesting generational divide that I think you saw really has risen up in the last two years. People have their own names, they give their own experiences, and often I think people give names to those experiences that are their own ways of asserting agency over their lives. Reconciling our subjective selves to the external factors that impact us.
I heard women say it feels like an invasion to be told by someone else that the thing that you had put in a certain category is trauma.
LINDA HIRSHMAN: A category mistake.
CHRIS HAYES: Yes, exactly. That you had mislabeled for yourself what your experience was and now there's all these people who are saying, "this thing was a violation." And that's not the way that you have represented to yourself in the old story of your lived experience.
LINDA HIRSHMAN: Right and two things are true. One was, I never got that memo. So I know right away when I wasn't being treated properly, either equally or respectfully. I never got the memo.
CHRIS HAYES: Meaning that you understood it as a violation.
LINDA HIRSHMAN: I understood it as a violation. In the book about the gay revolution victory, there's a moment when Franklin Kameny, really the father of the modern gay revolution, is discharged from his job in 1957. And unlike the previous 100,000 gay men who had been discharged from their jobs in the McCarthy era, he says, "You know, that's wrong, actually. I'm not bad. You're bad."
CHRIS HAYES: Right.
LINDA HIRSHMAN: Right and not to put myself in a category with Franklin Kameny, but I did have the same experience. I never thought that I was an appropriate subject for being treated unequally or touched without my permission.
CHRIS HAYES: I want to talk about how people start, women particularly start to sort of cognize the infraction. But just tell a little bit of the story of, like about Newsweek at that period, to give people a sense of the milieu.
LINDA HIRSHMAN: It was a sexual free-for-all. The young women who came to work at Newsweek were researchers. They were in a subordinate job category. Just in case you think there's no sex discrimination going on here, right? So they were the worst paid, more vulnerable, not-so-prestigious, and with no hope of promotion jobs, just like the women in most of the early sexual harassment cases were.
CHRIS HAYES: Right. So they're not like, they're not on the ladder to be the Washington correspondent.
LINDA HIRSHMAN: There was no ladder.
CHRIS HAYES: Right. This is a caste of employee who is always a young woman.
LINDA HIRSHMAN: It's a sexual caste and so they're vulnerable. And the glamorous charismatic men in their workplace were relentlessly harvesting them for sexual experiences. And many of those men were married. And so the women who were the researchers and stuff, their workplace sexual partners were greatly disadvantaged in sexual bargaining because when you have sex with a married man, you're always at something of a disadvantage. Let's call it the Monica Lewinsky.
And yet at the time, many of them reported it as a "glamorous, sexy affair." Air quotes, since it's a podcast. And some of them reported it at the time as a nuisance, something that you just had to put up with in order to keep your job. So there was a hot house, a sexual hot house environment and not just at Newsweek. I mean, when I had friends in all the different media and they were all reporting this to me. In print, television and so forth.
People got divorced, they met their spouses, their second and third spouses at the workplace. So they felt like it was a valid social system. But if you think about it as a caste system. Catharine MacKinnon was really the one who figured this out in 1975 looked at it and said, "These men are treating women as vulnerable," which they are harvesting them sexually from their positions of vulnerability.
And what I think is the most important thing that I learned in working on this book is it hurt the women. They left their jobs to get away. They didn't get promoted if they were displeasing. They became, as Alyssa Milano said in my interview with her, sex workers. And so it both took advantage of them because of the caste system of the workplace and it made their situation worse.
You have the story of Carmita Wood who was promoted in 1972 to an administrative job in a physics laboratory at Cornell. And for the first time in her life, she had enough money to put a down payment on a decent house for herself and her children. And the chairman of the physics department at Cornell, Boyce McDaniel had been chasing her around the desk for years. But he now had her in his clutches. And he constantly pushed her against the wall mimicking masturbation.
This is something that the authorities called a personal decision on her part, not to like that. And finally, when he put his hands under her sweater at a faculty Christmas party, she quit and she never had enough money again. So for every professor that's happily married to his graduate student, there's a Carmita Wood.
And so this was what life was like in the 60s and it is completely understandable to me that women who did all the things you do, they avoid being alone with these guys and they had sex with them to please them and keep their jobs. And they had sex with them because they hope to be promoted and they were raped because they were around on business trips. All of them categorizing it as just something that wasn't that important. It was a bother, right? I understand it, but sooner or later someone has to see the horizon and say it's wrong.
CHRIS HAYES: You write about Catharine MacKinnon; you view her as the kind of intellectual hinge here.
LINDA HIRSHMAN: She's the intellectual hinge. There's no question about it.
CHRIS HAYES: Just so folks know, Catharine MacKinnon is a celebrated and famed feminist scholar who has been writing for decades and is a powerful and incredible writer and thinker, and also quite controversial. She has a particular brand and vision of feminism that has often been assailed on the left. She was an anti-pornography crusader.
She and Andrea Dworkin have a lifelong intellectual exchange and Dworkin also, who people should read. (You should read "Intercourse" if you ever get a chance to. Incredible book.) Also, a controversial and polarizing figure, just to give people the backstory.
LINDA HIRSHMAN: So MacKinnon was the daughter of a federal judge who tried and tried to go to Yale law school after college, and somebody kept keeping her out. We later found out it was somebody on the admissions committee thought she was too radical. So it goes all the way back to '73 or ‘74.
But she finally got into Yale, and you're looking at the Civil Rights Act of 1964 basically saying that it was against the law to discriminate in employment against people because of their race or sex. And at the beginning, that prohibition was taken as a very formal prohibition, okay? Law partners couldn't say ...
CHRIS HAYES: "We will only take male law partners."
LINDA HIRSHMAN: "No girls allowed. We will only hire guys to be associates in our law firm." They were no longer allowed to say that or do it, but if you discriminated against people, or made their workplace a living h---l, or what now the law calls a hostile work environment, that was not so clearly prohibited. Because the law just said, "you got to treat the girls like the guys. That's what you have to do." Right?
MacKinnon said, "Wait a minute. There are a million ways in which characteristics that women have that men don't have, which the society denigrates and makes less. One of them is vulnerability to becoming pregnant, and another one is vulnerability to becoming targeted by a heterosexual male for sex." And she said discriminating against women is oppressing them, and treating them with disrespect, regardless of whether the particular thing you're doing you would do to the guy at the next desk. That's a more powerful vision of equality, and if you see equality that way, then the physics professor demanding sex from his administrative assistant is discriminating against her, taking advantage of her lesser status, and making her life worse, even though he wouldn't ask a male administrative assistant for sex.
CHRIS HAYES: We should say, just to say it, obviously, one of the things that we've seen in this Me Too era is that there are lots of stories, and I don't think it happens as often, of men being targeted by predatory male bosses in work environments. That has been one of the subplots, particularly in Hollywood. We've seen this with ...
LINDA HIRSHMAN: Kevin Spacey.
CHRIS HAYES: With Kevin Spacey and with others. So it is a thing that I think in the context of MacKinnon's theorizing of it, right? Is pegged to gender because I think the way that she's thinking about it, but also we've seen is something that actually can pertain to men in work environments as well.
LINDA HIRSHMAN: Right, which is really some of the richness of the MacKinnon thinking, which is that it's disrespectful.
CHRIS HAYES: Right. It's disrespectful, but, because we're going to talk about these sort of early cases, it's crucially discriminatory, and it is a form of discrimination, and as such a violation of the law, which is one of the key sort of intellectual terms that she pulls off. Right?
LINDA HIRSHMAN: It's brilliant. And I'm a theorist myself, so I've lived a life of trying to figure things out like MacKinnon tries to figure things out. And to see someone make a theoretical breakthrough of that magnitude is extraordinary. And you actually see it. She's gathering information about women's lived experiences, and she's learning that they are, almost without exception, harassed sexually at work. Almost without exception. And they leave, and they suffer terrible economic free fall. And so she's gathering the data for her theorizing, and because she isn't just looking for formal equality, she sees immediately how it's discriminatory. The law says you're not allowed to discriminate against people on account of sex.
And so along comes Paulette Barnes, who was told by her boss in her civil service job in Washington that to keep her job she had to have sex with him. And the purest, let me see, quick pro quo for ...
CHRIS HAYES: "I would like you to do me a favor though."
LINDA HIRSHMAN: Yes. Right. So it's the cleanest example. And she said no. So she's the perfect plaintiff, and he terminated her position, and she didn't exactly know what was wrong. It's 1972 or '73. It's before MacKinnon wrote, but she went to the Lawyers Committee for Civil Rights Under Law. She suspected it might be race discrimination, which of course it wasn't, except in so far as black women are more vulnerable than white women are. But, anyway, she went to the Lawyers Committee, and somebody at the Lawyers Committee figured out that it was sex discrimination, and the Civil Rights Act had just been amended to apply to the federal government. 1972.
So the people at the Lawyers Committee were looking for cases against the federal government in this new era, and they took Paulette Barnes's case. And it went to the district court, to the trial court in D.C., and the judge ruled against her. He said, "It's not that you're woman. It's just that you're so irresistible at any thought, and it's a private act, right? It's just like what he does at home." Right? But it's brilliant because MacKinnon gets a hold of this, and she says, "Actually, that's right. It's discrimination and oppression at work, and it's also discrimination and oppression at home. And that's what leads her to turn her laser-like gaze on other sexual relationships like rape and pornography.
But bracketing that for a moment, the Lawyers Committee takes the case on appeal to the D.C. circuit, and Paulette Barnes draws two of the greatest liberal judges in the history of American jurisprudence, David Bazelon and Spottswood W. Robinson, who was the first African-American judge on the D.C. circuit and a graduate of the great Howard University school of training great civil rights lawyers. And Catharine MacKinnon's father, George MacKinnon. Right? By the luck of the draw.
There's a great story in my book, "Reckoning," that MacKinnon was visiting her family for Christmas vacation, and she was using her father's LexisNexis machine, legal research machine, at the D.C. circuit offices, and somebody came up to her and said, "I understand you're writing about sexual harassment. We've got a sexual harassment case. Can I see what you've written?" And MacKinnon, in my interview with her, told me "I gave that woman my only copy." No one has been able to find that woman. I promise you, I was Ronan Farrow looking for that woman, but we cannot find her. But MacKinnon, who was actually very reliable, told me in my interview with her that she came home a week later, and it was on the dining room chair in her father's house.
And so they argued it in front of these three judges, and even Bazelon, the great liberal judge, did not see asking your employee for sex as discrimination. And certainly MacKinnon's Republican-appointed father was not interested, but Spottswood W. Robinson III recognized bad behavior on the grounds of caste when he saw it, and he took a long time. He wrote a brilliant first opinion in this matter, and he persuaded the other two.
CHRIS HAYES: Wow.
LINDA HIRSHMAN: So it was unanimous.
CHRIS HAYES: So that establishes a basic body of law on the issue, and we're going to talk about where this framework ends up taking us right after this.
Making sexual advances against women in the workplace, conditioning promotions or hiring upon sexual favors, creating an environment in which they are constantly having to fend off sexual advances, all of these violate the law because they are forms of sex discrimination, and that violates the Civil Rights Act.
LINDA HIRSHMAN: And so Michelle Vinson, another one of our heroic African-American plaintiffs from the '70s, gets the opportunity to work as a teller in the little branch of the Capital City Bank system in her neighborhood in Washington D.C. And after he hires her, her supervisor takes her to dinner, and tells her that she's going to have to have sex with him if she's going to keep her job. And he proceeds to harass and abuse her sexually at the workplace, following her into the bank vault, and into the ladies room, raping her, endlessly demanding sex from her, filling the workplace with pornography, which is something that very few people know about the Vinson case, and tormenting the other women by forcing pornography on them as well for many years.
And, finally, Michelle Vinson can't stand it anymore, and she takes sick leave and he fires her, and she filed suit against him. Now, she's not a perfect plaintiff like Paulette Barnes, right, because she had sex with him, both without force and with force for a long time. And the horrible district court judge once again says that she never reported the rapes, and she never went to the police, and there's a lot of talk about how she dressed at work. Really repulsive.
CHRIS HAYES: In the trial court record.
LINDA HIRSHMAN: Yes, in the trial court record. Okay, so we're going to blame Michelle Vinson for what Sidney Taylor did to her. That goes up to the DC circuit, and the DC circuit again reverses and says it violates the Civil Rights Act if you offer a quid pro quo to a woman, "Have sex with me or I'll terminate your job." And it violates the Civil Rights Act if you create a hostile work environment, like Sidney Taylor created at the branch of the Capital Cities Bank, then the Meritor Savings Bank.
CHRIS HAYES: That's the origin of that phrase as a legal phrase.
LINDA HIRSHMAN: That's correct. Well, actually it comes from Catherine MacKinnon.
CHRIS HAYES: Right, but in a judicial opinion, that concept first appears in the Vinson case at the appellate court level. And then it goes up to the Supreme Court?
LINDA HIRSHMAN: It goes up to the Supreme Court of the United States, and they don't even have the money for a transcript to use in writing the brief to the Supreme Court. And the volunteer lawyer who had been representing Michelle Vinson knows that she's in over her head, so she does what any sensible feminist would do when they knew they were in over their head. She calls Catharine MacKinnon. People have said to me, "Oh, this book is so adoring of Catharine MacKinnon, and you're just in the tank for Catharine MacKinnon." I'm like, this is my business, thinking about equality. Right? And she's everywhere in the story.
LINDA HIRSHMAN: So she is living off the grid in California somewhere because she can't get a tenured job because she's too radical for the law school faculties of the 1970s and 80s, and she has no LexisNexis, and she has no computer. And she writes the brief to the Supreme Court of the United States in the first case to hold that sexual harassment is a violation of the Civil Rights Act at the Supreme Court level.
CHRIS HAYES: So that's the breakthrough case, the Vinson case.
LINDA HIRSHMAN: '86.
CHRIS HAYES: Yeah, it's in '86, and then the next real moment of public reckoning with sexual harassment, workplace harassment, will come with Clarence Thomas's appointment some years later.
LINDA HIRSHMAN: With Clarence Thomas's nomination to the Supreme Court of the United States. But when the Supreme Court decided Meritor versus Vinson in 1986, Thomas was the Republican-appointed head of the Equal Employment Opportunity Commission.
CHRIS HAYES: You know, it's funny. I knew that obviously, and there's actually an amazing Juan Williams profile of Clarence Thomas from the Atlantic back when he was the head of the EOC. It's a great piece of magazine journalism that people should read. We'll link to it.
But just the penny just dropped for me that like, how perverse is it?
LINDA HIRSHMAN: So perverse.
CHRIS HAYES: That he is the boss at the EOC, and Anita Hill is working for him when he is engaging in the behavior that she alleges against him, and the EOC is the federal body tasked with enforcing equal opportunity for employees in the workplace.
LINDA HIRSHMAN: And for us law geeks, Thomas and the Republican-appointed majority on the EOC at the moment that Michelle Vinson goes to the Supreme Court files a friend of the court brief taking the part of the bank. Okay, I just want to be sure this is clear. The Equal Employment Opportunity Commission changes its position on hostile work environment and takes the part of the bank. "She deserved it." They're talking about what you wore. They say that it's too hard to prove it. Women lie. The EOC files an amicus friend of the court brief in Michelle Vinson's case under Clarence Thomas.
The Supreme Court giveth and the Supreme Court taketh away. So they gave us a declaration that hostile work environment was sexual harassment under Civil Rights Act of 1986. That was unanimous, nine-zip. But by five to four, they said, "But we're not going to hold the bank strictly liable for the acts of its supervisors," and from that taking away comes everything that we know that we learned about places of employment in the Me Too movement. The entire world of employment for women who did not want to be sexually harassed and abused would be different if the Supreme Court of the United States had had one different vote in 1986, and that's it.
And, oh, by the way, employer, you're strictly liable.
CHRIS HAYES: Right? This is your problem. Even if you're the board of the bank, the CEO of the bank, management of the bank, if you have a manager who's doing this, you are liable for that. It's your job to make sure that your workplace isn't that, as opposed to the manager who is liable.
LINDA HIRSHMAN: And that is the rule for racial harassment, so if somebody puts a noose in your locker, the bank is strictly liable. But if they follow you into the ladies room and rape you, the bank is not strictly liable.
Imagine what the world would be like. The Disney Company, when it was owning Weinstein Brothers, would have been strictly liable. Other companies that I could name would be strictly liable, but instead the courts constructed a series of safe harbors for the employer. If they had a human resources department, and they made it known that they had a policy telling you shouldn't follow your employees into the bank vault and rape them, and they posted it, then they would not be liable for their employees.
CHRIS HAYES: And what you get there, perversely, right, is the creation of human resources as liability protection as opposed to active managers of workplaces that are not hostile, which the two can go together, but they're distinct goals.
LINDA HIRSHMAN: And it depends upon whether you value more the man who's making hundreds of millions of dollars for you. Let's call him Les Moonves, for example. Or whether you value the young women that have just come to work in the business.
CHRIS HAYES: And there's a dollar amount attached to that.
LINDA HIRSHMAN: There's a dollar amount attached to that.
CHRIS HAYES: Literally a dollar amount. There's someone making hundreds of millions of dollars. That's the value to that person to the company.
LINDA HIRSHMAN: Bingo. And that gives you a very big budget to buy off the people who are complaining about him, which is the whole process that was so well revealed in Gretchen Carlson's case against Roger Ailes, and then in the Weinstein articles in the following year, is the product of the corporate culture of defending themselves.
CHRIS HAYES: So Clarence Thomas is the EOC. He then is nominated. Anita Hill comes forward and makes a series of under oath allegations. It takes a while for this to come out, but very famously in the hearings says that he created a hostile work environment for her. He very famously gives that speech in which she decries it as a high tech lynching for "company blacks," is his phrase. And he's confirmed.
And there's a groundswell of attention to sexual harassment. I remember those hearings, and I remember that phrase. It's 1991, I think, right?
LINDA HIRSHMAN: Yeah. It's 1991.
CHRIS HAYES: So I was 12, so I remember listening to hearings. I remember the hearings being on everywhere, including radios and stores. I remember watching them at home. I remember satires on "Saturday Night Live." I remember the way that anchors would say "sexual harassment" as opposed to "harassment," which I thought was weird, but there's just like a regionalism. But it was an enormous cultural watershed moment. And them '92 is known as the "year of the woman," when there's this sort of politicized mobilization backlash to what people saw happen with Thomas.
LINDA HIRSHMAN: And the Democratic senators who voted to confirm Clarence Thomas lost their seats.
CHRIS HAYES: Right. The next big moment in this is Clinton. You have a strong argument about what the meaning of that moment was.
LINDA HIRSHMAN: So I want to be sure that I say that I was clear on the wrongdoing of Bill Clinton in 1998, okay? I was not enlightened by the Me Too movement and suddenly figured out that the president of the United States should not have been having sexual relations with a 22-year-old intern. I did not figure that out when tThe New York Times revealed that Harvey Weinstein had been abusing actresses. At the moment that it emerged, I knew it was wrong, certainly wrong, and politically insane.
CHRIS HAYES: Well, that I think there's widespread agreement on.
LINDA HIRSHMAN: Many people knew that.
CHRIS HAYES: Yes, yes. The president of the United States having a sexual relationship with a 22-year-old intern in the White House, I think there was widespread view that this is utterly insane and reckless, whatever one's feeling about what should happen to him.
LINDA HIRSHMAN: Right.
CHRIS HAYES: It's an unbelievably insane thing to do.
LINDA HIRSHMAN: It's just unbelievably.
CHRIS HAYES: It's funny because it's one of these things where ... Again, so I was whatever I was. I was a fully formed subject at that point. I was 18 or 19 years old, but it's in the midst of the news cycle. To look back on that episode now when you're not in the trenches of this partisan warfare in the daily news cycle, just that fact alone is so nuts. So nuts.
LINDA HIRSHMAN: And, of course, I was so angry because the democratic party had moved so far to the right, and he had executed that mentally disabled convict in Arkansas in order to win the election of 1992. We had done so many really questionable things to try to wrest power back from the conservative Republicans-
CHRIS HAYES: Because it had been 12 years, and there was a sense that Democrats were in the wilderness, and they moved to the far left, and they were never going to win the presidency again. And Clinton was the savior because he was the centrist, and he did.
LINDA HIRSHMAN: Executed Ricky Rector, passed the crime bill. Many things that we now know are wrong. I knew at the time what price we had paid, and he threw it away for love chaw.
CHRIS HAYES: That's a fascinating way to think about it. That so much bad had been done in a devil's bargain to restore some bare tentative democratic coalition that could govern the country, and the sheer narcissism and moral recklessness of sacrificing that for this.
LINDA HIRSHMAN: Right. Because I only always care about the fate of the country. That's the only thing I ever pay attention to. So when people sacrifice the wellbeing of the United States. And in turn, then the fate of the earth and other things-
CHRIS HAYES: Linked to it.
LINDA HIRSHMAN: Linked to it. But that's the first thing that I think.
CHRIS HAYES: But the argument that you make in the book, and it's an argument you made at the time, just to be clear.
LINDA HIRSHMAN: Yeah.
CHRIS HAYES: This was not a late awakening for you, is that essentially the kind of like partisan mechanisms of defense that get marshaled in his favor end up having many people, including prominent feminists, arguing essentially there's nothing to see here.
LINDA HIRSHMAN: Right.
CHRIS HAYES: You make the case in the book that that actually was like tangibly destructive to the broader movement and progress towards the recognition of sexual harassment and sexual predation.
LINDA HIRSHMAN: Right. A double, if not a trifecta. It was the feminist defense of Bill Clinton on the grounds that Monica Lewinsky was a fully formed adult human capable of making a rational decision in that inequality of power situation was immoral. And in a utilitarian sense, it didn't help. So you both did the wrong thing, and you pay the political price for it.
CHRIS HAYES: Well, but let's start on the first, right? This is the place where this question is so pronounced. And the Lewinsky/Clinton example is probably the most extreme because you're literally talking about the most powerful man on earth. She was 22. She says to this day it was a consensual affair.
LINDA HIRSHMAN: Just think back to what stories we tell ourselves about-
CHRIS HAYES: Yeah, although I do or, I'm not sure if I'm the right person to articulate this, but I will articulate it nonetheless. Is there not a little bit of like ... For you to say about other people, they tell themselves a certain story about themselves, seems to me like a little bit condescending or an imposition on their own agency. It does seem to me that Monica Lewinsky gets to be the person who says about Monica Lewinsky whether she consented or not, and she says she did.
LINDA HIRSHMAN: Right. I don't think that individual agency is the end of the moral conversation.
CHRIS HAYES: That I totally agree with.
LINDA HIRSHMAN: So I would argue that one can still ask whether consent trumps.
CHRIS HAYES: Yes, right. The question is consent, and this has I think actually been the evolution of this conversation that I think comes out of Clinton, is consent the end of the moral question?
LINDA HIRSHMAN: Right.
CHRIS HAYES: Because there is one theory of the case, and this is true and I think true of feminists who I think you would have a lot to argue with about. For instance, about sex work, right?
LINDA HIRSHMAN: Yes.
CHRIS HAYES: There are a lot of people who say like, "Look, yes, consenting adults who are of sound, mind, and body get to do whatever they want." And that actually kind of is the end of the moral question. And there's other people who say, "No, there's a lot more complicated stuff here."
And I guess the sort of concern about the folks who say "No, there's more there," is that you slide towards either kind of condescension or puritanism when you start adding additional moral questions about the sexual relationships of people.
LINDA HIRSHMAN: It's so funny that we don't say that about requiring people to wear their seat belts or their bike helmets. There are many things where agencies other than the individual, or we forbid people to sell themselves into slavery. That's the classic philosophical thought experiment. It's always very interesting to me that when people say that there are political and moral concerns involving women, and particularly women in sex; all of a sudden we're Torquemada. Somebody criticized my beautiful book by saying that I was engaged in an epic battle against sex. Of course, I immediately responded by saying that they obviously had never met either of my husbands. But it's so interesting that sex is a morality free zone.
CHRIS HAYES: No. Wait a second, though. It's not that sex is a morality free zone. It's that this is all in the context of the fact that, as you noted in an early part of the conversation, that sexual morality has been the most potent and often oppressive form of morality imposed.
LINDA HIRSHMAN: Traditional, patriarchal, sexual morality. That is to say the Christian, single family, single-family dwelling, sexual patriarchal.
CHRIS HAYES: Not just Christian. Let's just be clear, like throughout the history of the world, various religious traditions and cultural traditions have produced incredible forms of essentially sexual oppression against women through whatever divine inspiration they claim.
LINDA HIRSHMAN: Totally. But in America, it's not the harem, for example, which would be a different kind of oppression. But my idea is that there are many kinds of morality other than sexual, more traditional, Judeo-Christian sexual morality. And I ask the moral questions that political theorists ask, "Does it enable a human being to use their capacities and lead a flourishing life? Do they have enough free will, enough freedom to respect them as subjects with agency?"
CHRIS HAYES: As ends and of themselves.
LINDA HIRSHMAN: As ends and of themselves, and not a means to an end. And do they do more good than harm? These are the questions that we have evolved in the Western tradition, and that's what I asked.
CHRIS HAYES: And I just want to be clear, I agree with you 100 percent in the context of Bill Clinton and Monica Lewinsky, or in basically I think in 99 percent of cases of managers and subordinates.
LINDA HIRSHMAN: Consent is a meaningful human act. Catherine MacKinnon thinks it's not potent enough. She uses the standard that the Supreme Court set down in Meredith vs. FinCEN, which is welcomeness. It was unwelcome, and that is a beautiful standard.
CHRIS HAYES: That is a good way of conceptualizing, welcomeness versus consent.
LINDA HIRSHMAN: Correct. Right.
CHRIS HAYES: Because consent can be-
LINDA HIRSHMAN: Grudging.
CHRIS HAYES: Grudging, tacit.
LINDA HIRSHMAN: It can be the gun, your money, or your life.
CHRIS HAYES: Well, no. That's not consent.
LINDA HIRSHMAN: Well, but that's Hobbesian consent.
CHRIS HAYES: Right, but that's not the way that we cognate consent in this context. Obviously if someone puts a gun to your head, in any of the moral conversations we're having around Me Too and sexual ethics, a gun to the head in exchange for sex is wrong and a violation and criminal.
LINDA HIRSHMAN: But the inequality of bargaining power can be certainly up to that moment of threatening your life. For example, when Paulette Barnes's boss threatened her job, or when Carmita Wood's boss threatened her ability to make a house for her children, that feels a lot like a gun to your head.
CHRIS HAYES: Yes. Yes, totally.
LINDA HIRSHMAN: And so consent is a very slippery concept unless you have a context for it. Is there enough equality so that the consent can be meaningful?
CHRIS HAYES: One thesis of the book is that there was this kind of ... The book is called "Reckoning." There's a delayed reckoning, right?
LINDA HIRSHMAN: Yeah.
CHRIS HAYES: There's a sort of progress and then a kind of ... There's backlash. There's interregnum partly produced by Clinton. I think that's part of your case.
LINDA HIRSHMAN: Oh, absolutely.
CHRIS HAYES: That this kind of freezes things.
LINDA HIRSHMAN: Feminism blanked. And then it was just the hot Manhattan babes and their disgusting conversations about how many of them would like to f--k the president.
CHRIS HAYES: You're referring to a very notorious article that came out, which was a bunch of affluent, white, self-identified feminists. I forget who published it, but it's a legendary piece.
LINDA HIRSHMAN: We started with the law, and then we talked about the politics and the election, the political price we paid with Bill Clinton. Then you go to the culture. There were feminists who did not take this position. This was not representative of all feminists in 1998. I wasn't the only virtuous person then.
CHRIS HAYES: Sure. Yes.
LINDA HIRSHMAN: Although sometimes I do think that, that was not true in that case. But you're talking about the making of a culture, and a cultural attitude toward kind of walking away from the idea that sex is meaningful, that people can be hurt, that inequality of bargaining power should be on the table. A lot of the issues that we culture ... So we had a cultural freeze. We paid a very high price. I believe that Al Gore would have won the election of 2000, just talking about the warming of the earth.
CHRIS HAYES: If the president had been impeached?
LINDA HIRSHMAN: If the president had resigned and allowed Gore to take his place and run as incumbent two years later. So we paid a very high price, and women seeing this, young women coming up and stuff. They thought, "Well, we're going to be sex positive, and we're going to just write books about how you can wear high heels and be a feminist." There was a cultural backlash moment that lasted a long time.
CHRIS HAYES: Why do you think things broke through when they did?
LINDA HIRSHMAN: Well, this is my favorite part of the book, which is the chapter on feminism revived. And I believe since I write about social movements, I'm always looking for what makes social movements succeed. One of the things that make social movement succeed is technological changes in communication, so the inventing of the printing press. In this case, it was the internet, and sprang up a universe of wonderfully uppity and unconstrained internet magazines and websites and newspapers and blog sites.
And the young women who are coming out of college after 2000 had learned in their women's studies classes, whether they took them themselves or whether they just heard about them from their friends, and so they had their consciousnesses raised. They were fresh to the world after the Clinton episode, and they went to work for these online places. Slate.com, Salon.com. Feministing, a young feminist Jessica Valenti started.
And my absolute favorite, which was Jezebel, which was started by the incomparable Anna Holmes. And I interviewed all of them for my book, and they all tell basically the same story, which is that they came of age in this backlash period. They learned in their women's studies classes and they read Catharine MacKinnon when MacKinnon was so out of fashion, and she was taking so much heat for the pornography campaign, and when women were telling each other how wonderful it was to have sex with the married president of the United States. In women's studies courses all over America, people were reading MacKinnon, and they came of age in the aughts. And they went on the new technology of the internet, and they didn't have to get by the old white men that were running the New York Times, for instance, to get their positions out. And they started reviving feminism in those years.
CHRIS HAYES: And you think that sort of intellectual flourishing that happens in the sort of aughts internet produces the kind of consciousness, is the kind of seedbed into which ...
LINDA HIRSHMAN: And from that seedbed germinated reporters like Jodi Kantor.
CHRIS HAYES: Right.
LINDA HIRSHMAN: Right. She was this regular politics reporter at Slate.com, but she rose very quickly at Slate because there was no constraint. Jacob Weisberg just wanted the most talented people he could get. And Irin Carmon, who came up from Jezabel, and Rebecca Traister, who came up from Salon.com, they all tell the same story. And then they filtered into the mainstream media.
CHRIS HAYES: And there's also the degree to which, because of this pause, I also think that a lot of these self-identified feminist and women are writers who end up in the trenches reporting out these stories, breaking these stories. They're like, "What the f--k is this," when they get into more traditional environments and are talking to their friends and all of this stuff that is showing up in your history of Newsweek. And all these things is now kind of commonplace, and people are talking to each other after work. There's a kind of like disjuncture between what their commitments are, what they believe in, what equality should look like, and what the actual existing workplaces and sort of patriarch gold domination looks like.
LINDA HIRSHMAN: That's true. And of course, there's the famous story about Rebecca Traister running into Harvey Weinstein at a party when she was just trying to do her job. He called her the worst of the sexist slurs, and even a potty mouth like me isn't going to say that one. But she came from a background where she, like me, all those years before, and like Franklin Kameny all those years before, she knew it was wrong.
CHRIS HAYES: One of the things about this book is that there's a sort of narrative spine of the legal changes that happen. I think one of the questions that hangs over this cultural conversation about Me Too and post Me Too is you need something more than a commitment to equality, or to say these individual acts by men are bad. You need a framework for, most importantly, preventing it from happening in the first place. You also need a framework for sort of holding people to account. How do you envision that? Because obviously like the law is a big part of that, but it's not the full part of it. In some ways, the law has been used to bury a lot of this. A lawful NDA contract is part of the law, and it's been wielded as a kind of weapon to keep a lot of secrets. How do you conceptualize the framework that we need?
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LINDA HIRSHMAN: It's always the same forces in American social movements. The law, had the decision gone the other way in Meredith vs. FinCEN, we would not be talking about the failures of the law so much. Politics, what has happened since Me Too is that the Republican party has come to own both the traditional patriarchal oppression of women and the sexual revolution libertine oppression of women.
CHRIS HAYES: That's a good point.
LINDA HIRSHMAN: Congratulations, GOP.
CHRIS HAYES: It's a party of Mike Pence and Donald Trump.
LINDA HIRSHMAN: Exactly right. 100 percent of the bad things that can be done to women, they support. The Democrats have been, shall we say ambivalent, but slowly but surely they have moved away from defending Bill Clinton and in the direction of defending women's claims to equality and respect. So politically, I'm like 98. Where someone like me had nowhere to go, women now have someplace to go.
CHRIS HAYES: That's fascinating.
LINDA HIRSHMAN: That's why the Al Franken case is so hard fought, because that's the soul of the Democratic Party. Are they going, even in a marginal case, to say our female constituents mean so much to us that we are going to err on the side of protecting them rather than protecting him, adorable Harvard guy that he is? And there's the cultural part, and that is why I've been so ... I was a brunette when this started, the backlash, the backlash.
I've been scared to death of the backlash because that's what happened to feminism in the 90s, with the death of feminism business. And when Jane Mayer published her 12,000-word article trying to rehabilitate Al Franken, I thought that an explosive device had exploded and I waited for feminism to roll back again. And instead, the young reporters of the internet rattled to the front in taxis and defended the movement. They took the backlash to trench warfare instead of seeing the troops marching down the Champs-Elysees. We have trench warfare, with the Moira Donegans and the Anna Merlans and the guys. Zach Roth said, "Look, we reported on those accusations against Al Franken, and we're good reporters and we're defending our reporting. We're not going to roll over and say that we were wrong and it was all a set up." And that was the moment when I thought, "I think the feminist movement might hold its hard-won territory this time."
CHRIS HAYES: Linda Hirshman is the author of "Reckoning: The Epic Battle Against Sexual Abuse and Harassment." Her last book is called "Sisters in Law: How Sandra Day O'Connor and Ruth Bader Ginsburg Went to the Supreme Court and Changed the World." I have not read that book, but my wife has and says it's fantastic. So I recommend that, passing along the Kate Shaw stamp of rule on that. Linda, this was great. Thank you so much.
LINDA HIRSHMAN: There isn't any podcast I'd rather be at.
CHRIS HAYES: Oh, that's kind. Once again, my great thanks to Linda Hirshman. The book is called "Reckoning: The Epic Battle Against Sexual Abuse and Harassment." You can find it wherever you get your books. Once again, we got a live WITHpod coming up December 8th. I promise you guys, when this tour is over, I will stop plugging. I swear to God, I will stop plugging.
I don't like it any more than you do. Okay. Daddy's got to move some product. Okay. Tiffany's like literally making a note of the time code to cut that out. But yes, but I say this totally earnestly. I love these events, and I love being in the room with all you guys, and I love the fact the people come and the energy in the room is just incredible. It's really unlike anything we've done either around the podcast or even the show.
So December 8th, Sunday night, Town Hall Midtown Manhattan. Special guest, very special guest, my great intellectual hero, Tony Kushner. Go to ticketmaster.com. Search for Chris Hayes. Also, for those of you who want to come and can't afford the tickets, we're going to do another drawing. We'll put details in next week's episode, so make sure you listen next week so you don't miss out. You can always send us feedback, #WITHpod with pod. Email, withpod@gmail.com. Use the hashtag for positive feedback. I'll see it. Use the email for negative feedback, so it goes right to Tiffany.
No, I'm kidding. Just whatever feedback you want to send in whatever form is great. We love you.
"Why Is This Happening?" is presented by MSNBC and NBC news, produced by the "All In" Team and features music by Eddie Cooper. You can see more of our work, including links to things we mentioned here, by going to NBC news.com/whyisthishappening.
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