Catharine MacKinnon and Gretchen Carlson Have a Few Things to Say
Posted March 16, 2018 9:41 p.m. EDT
NEW YORK — Sexual harassment “was not considered anything you could do something about — that the law could help you do something about — until a book was written by a then-young woman named Kitty MacKinnon,” Supreme Court Justice Ruth Bader Ginsburg said at the Sundance Film Festival in January.
She was there to attend the premiere of the documentary “RBG,” which will be released this spring. And the book, “Sexual Harassment of Working Women,” published in 1979, argued that sexual harassment in the workplace is sex discrimination and prohibited by equal protection laws.
“It was a revelation,” Ginsburg said. “And it was the beginning of a field that didn’t exist until then."
The Supreme Court agreed with Catharine A. MacKinnon. In its first case involving sexual harassment in 1986, with MacKinnon as co-counsel, the court ruled unanimously that sexual harassment is sex discrimination.
For more than 40 years, MacKinnon, 71, has been a pioneer and lightning rod for sex equality. Along with her work on sexual harassment, she has argued, more controversially, that pornography and prostitution constitute sexual abuse of women in the context of social inequality.
MacKinnon now teaches law at the University of Michigan and Harvard. (In 1990, I studied with her, in a class called “Sex Equality,” when she was a visiting professor at Yale Law School.) Her most recent book, “Butterfly Politics,” surveys her four decades of activism.
Last month, she met Gretchen Carlson, the former Fox News anchor who, more recently, became a public face of sexual harassment. In July 2016, Carlson sued Roger Ailes, then chairman and chief executive of Fox News, claiming sexual harassment. After dozens of women came forward with their own accounts of harassment by Ailes, he was forced to resign.
Two months later, 21st Century Fox, the parent company of Fox News, settled Carlson’s harassment claim for $20 million and issued a rare public apology for her mistreatment. (Ailes died in May.)
Carlson, 51, is the author of the best-selling book “Be Fierce: Stop Harassment and Take Your Power Back.” A former Miss America, she was named chairwoman of the Miss America board of directors in January. The previous chairman and other leaders of the organization resigned in December, after emails surfaced that showed leaders of the organization making derogatory remarks about the physical appearance, intelligence and sex lives of past pageant winners. The day before we met, Carlson joined Norman Lear and others as an executive producer of “America Divided” on Epix, for which she will produce and appear in a program about sexual harassment.
Over afternoon coffees and a shared fruit plate at the Bryant Park Grill in Manhattan, the pair — both Minnesotans — discussed the waves of women who have come forward with their own stories in the past year (and why it took so long for them to do so), whether the workplace has been altered in meaningful and sustained ways, and whether Miss America can be relevant in the #MeToo era.
This interview has been edited for space and clarity.
PHILIP GALANES: Kitty, you were a law student, just a kid in your 20s, when you developed the claim for sexual harassment. Was there a flash of inspiration?
CATHARINE MacKINNON: Sexual harassment was “just life,” as Gloria Steinem put it. For a couple thousand years, women put up with sexual pressure they were not in a position to refuse. In the mid-70s, I was a graduate student at Yale, and among the things I did to make money was play music with a friend. We went around to schools, and we gave a concert at the Cornell Women’s Center. I signed up for their newsletter, and I received one that told the story of a woman named Carmita Wood. Carmita had been working at Cornell for a man who continually pressured her in a sexual way. He was ogling her; he was looking up her skirt at the file cabinet; he was bumping into her in the elevator and pushing her in sexual ways. And the stress produced physical illness. She had to be hospitalized. But when she went to the unemployment board for compensation, they said she couldn’t because she left her job for “personal reasons.” When I read that, it exploded in my brain! I remember it to this day: “Now this is what sexual discrimination is about.”
PG: Gretchen, flash forward 15 years, when you enter the workforce. Was sexual inequality a concern of yours?
GRETCHEN CARLSON: I was brought up in a strong family in Minnesota. My parents told me every day that with hard work, I could do anything I wanted. I was a gifted violinist and a good student, and I worked incredibly hard. So, when I graduated from Stanford, the idea that women were not equal to men was a new concept to me.
PG: First job?
GC: At an ABC-TV affiliate in Richmond, Virginia. And one of my first stories was covering Anita Hill [who accused Clarence Thomas, then a Supreme Court nominee, of sexual harassment].
CM: I did commentary with Tom Brokaw from beginning to end on that. We were out there in parallel on that one.
GC: I believed her, and I was blown away that other people didn’t, primarily the members of Congress, all men, who were interrogating her. Then I went out on another story, a month later, with a cameraman from my station. We got into the car in a rural part of the state — this was before cellphones — and he started asking me if I’d loved it when he touched my breasts when he put the microphones on me. It went downhill from there. I kept pressing myself against the passenger door, and I actually wondered how much it would hurt if I opened the door and rolled out, like they do in the movies.
PG: How did you handle it?
GC: I did what many women do: I blamed myself. I felt guilty.
PG:Kitty, explain this to me. Women make up half the world. How do we make them feel ashamed of the lousy things men do?
CM: It doesn’t have to be this way. No, I would just say it is socially the case in societies of male dominance.
GC: And that wasn’t an isolated incident. I had two sexual assault experiences when I was Miss America, by two top television executives who attacked me in cars.
PG: Because they thought Miss America would be a bimbo?
GC: I don’t think it had anything to do with Miss America. They assaulted me because I was a woman.
CM: You were there; they could.
GC: The first man helped me all day, making calls to help me break into the television business. I was so proud of myself for cold-calling him and asking for help. Then we were riding in the back of his car, and he was all over me — his tongue down my throat. I didn’t realize that getting into TV meant him getting into my pants. In the second incident, the perpetrator took my neck in his hand and shoved my face into his crotch so hard I couldn’t breathe.
But you know what’s amazing? I never called them “assaults” until after my experience at Fox News. I was interviewing women for my book, and one of them said: “You realize that’s assault, right?” I was like: No! This is what women have been socialized to do: think we can overcome it by working just a little harder.
CM: And part of it is: Don’t let this get in your way. Push it aside. Get past it. PG: I watched clips of you on “Fox and Friends,” Gretchen. I also read your book and heard your TED Talk. That second woman is much smarter than the one I watched on Fox News. Was that part of your job, in bare legs and high heels: to check your IQ at the door? To make the guys on the couch with you feel more comfortable?
GC: No, my thought process was that I was the only journalist on that couch. I was doing the best job I could every day, and doing the best interviews amid tremendous chaos.
PG: Kitty, when you were at Yale, you were unquestionably the most popular professor with students. You invented the legal claim for sexual harassment; your work was hugely influential. And yet you wandered in the desert as a visiting professor for 15 years before you were offered a tenured position. Did that kill you?
CM: [Laughing.] It did not kill me. I am right here. I just kept doing what I did. But let’s get realistic: What people do is trim their sails in terms of content. They don’t tell the truth about what’s really happening to women, for example, so they get the job. It never occurred to me to do that. And even though I didn’t get the jobs, there continued to be major fights about appointing me for two decades. The big exception was Michigan, a great school, which offered me a position with tenure. Wandering in the desert, as you put it, was my tenure process. And it turns out, in many of those years, I was the most frequently cited scholar writing in English on law. But nobody knew that because the studies hadn’t been done yet.
PG: Let’s turn to #MeToo. Kitty’s been pushing for 40 years. Gretchen topples Roger Ailes in 2016. Why does sexual harassment only go viral with Harvey Weinstein last year?
GC: Since I lived it, I’d say it’s because people saw consequences in my story. I didn’t jump off the cliff and disappear. People saw that the perpetrator was brought down in short order. And when I started hearing from other women, thousands of them, they said two things: First, thank you for being a voice for the voiceless. Because the women who had come forward, their lives were in tatters. They were all fired, and never worked in their chosen profession again. That’s outrageous! And second, they felt a sense of victory through me — even though they personally may not have won. That encouraged other women to say: “Wow! They believed her. I’m going to come forward, too.” PG: Did you feel it coming?
CM: Let me put it this way: I actually thought that Donald Trump was going to win — in part, because of the racism and misogyny he was running on. A lot of people woke up to the reality of sex inequality because of that election. They also saw someone who admitted being something of a perpetrator get elected to the presidency, as if it didn’t matter at all.
GC: The No. 1 question I get is: How can the president of the United States have these accusations against him and still be in power?
CM: And there be no consequences.
PG: Other than possibly fanning #MeToo?
GC: I do think it played into women deciding they were going to have a voice on this issue and others.
CM: Women have talked to each other about this issue forever. But the media’s reporting it, and staying on it, is an amazing credit to journalists. They discovered that this is a story with legs. It matters, and it’s everywhere. It’s not just for the latest iteration of the women’s page. It’s in sports, politics, business, tech. Now that they’ve discovered the abuse is everywhere, they can cover it everywhere. It also means that men in power — generally white men, wealthy men — can’t afford to ignore it, which they’d always been able to do before. Now it’s going to cost them — their customers, their advertisers — in a way that’s going to bring them down. Before, it was easy to get rid of the women. Now, they have to get rid of the men, or they’re going to go down themselves.
PG: Many of the #MeToo survivors are movie stars and media figures with prestige. Do you see this trickling down to the millions of women working in fast-food restaurants and minimum-wage jobs?
GC: The ones who can’t afford to complain because they’re a single mom and raising two kids. That’s exactly what propelled my Gretchen Carlson Leadership Initiative for underprivileged women. The women we’re talking about, who don’t have the resources or the national platform. It was a question I got frequently after my story broke. I didn’t have a solution, so I came up with the Leadership Initiative as a start.
CM: Time’s Up is trying to do the same thing. It’s structured the same way.
GC: I would defer to your greater knowledge, but I think we also need the work that I’ve been doing on Capitol Hill to change the law on arbitration provisions. That’s the loophole employers use to keep women silent and these cases hidden.
CM: Compulsory arbitration has got to change.
GC: I was able to help introduce a bipartisan bill in the House and Senate in December to get rid of mandatory arbitration provisions. I’m still working on getting co-sponsors. Sixty million Americans have mandatory arbitration clauses in their employment agreements. So, hypothetically, if you’re being sexually harassed at work and you complain, you have already given up your right to go to open court. You go to secret arbitration, where you don’t get the same number of witnesses or depositions. There are no appeals.
PG: Many times, the company chooses the arbitrator.
CM: The awards are generally much smaller than in court cases.
GC: And you can never tell anyone what’s happened to you. So, when a woman complains, she’s thrown into arbitration, where employees only win about 20 percent of the time. Then she’s fired, and the perpetrator gets to stay on the job.
CM: The other thing about these cases is that the statute of limitations for discrimination is the shortest of any law I am aware of.
PG: How long?
CM: On the federal level, 180 days.
GC: And it can take years for women to work up the courage to complain. It’s one of the greatest misunderstandings in this area. If you look at my Facebook page or Twitter — actually, I urge you not to.
PG: They’re mean?
GC: Nonstop trolling. But the biggest complaint is, “If it was so bad, why did you stay?” CM: “Why not report him?”
GC: Because look at how we’ve treated women until now. Not only do we not believe them, we tell them they asked for it. Our own president has said that women accuse men to become rich and famous, right?
PG: It seemed to me, not long after the Weinstein story broke, the pendulum almost swung the other way: “Are we taking this too far?”
GC: That’s such a cop-out.
CM: Not to mention boring and predictable.
PG: So you don’t worry about women being able to find male mentors, who are still important in helping women climb the corporate ladder but who may be scared off in case their support is interpreted as something else?
CM: It depends on what the mentor wants to do. What does he have in mind?
GC: Also, the stories I heard from women were outrageous — even in 2016 and 2017. These weren’t “gray areas.” These weren’t stories of a woman complaining because a man said, “I like your blue dress.”
CM: Or how about going to lunch to discuss it? Sometimes lunch is actually lunch. PG: What about hiring women into better jobs?
CM: Well, that’s where you run into men voting their comfort level. If you bring something to the institution that no one else has — as women often do — they think you’re too different to hire. But if you bring things like what some man already has, that makes them feel comfortable hiring you.
GC: It’s like those studies where executives look at identical résumés — one named John, one named Jane — and they give greater credence to the men.
CM: It also means that women can be segregated into different jobs and paid less.
GC: There are so many layers here. Now, I’ve heard from male victims, too. I want to be clear about that. But this is a men’s issue that’s been flipped into a women’s issue. The responsibility for fixing it should not be left on our shoulders alone. It’s why raising our children, especially our sons, is so important.
PG: Gretchen, I was surprised by your taking the reins of the Miss America pageant. It’s hard to square women competing for scholarships in bathing suits and high heels with the other work you’re doing.
GC: Well, I wouldn’t be putting my name or my empowerment movement in association with it unless I was actually going to bring empowerment. The challenge isn’t brand identity. We’re struggling with messaging. You know what the average GPA of the 51 contestants is? 3.65. Why aren’t we celebrating that in a scholarship program? That’s just a sense of what I’m going to be doing.
PG: Let’s end with the next frontier in #MeToo. Any predictions?
GC: The next step will be institutions — schools and big businesses — stopping all their cover-ups.
CM: People have asked me for 40 years how not to get sued for sexual harassment. Well, a good first step is making sure that sexual harassment doesn’t happen where you are. Especially now, because it’s going to come out. I’ve seen leaders of companies go in front of their employees and say: “Listen, we’re here to work, not to cater to your social and sexual needs. If I hear you’re doing that, you’re out of here.” It’s pretty strong, but harassment doesn’t happen in those places. And then there are the other companies that have their so-called sexual harassment trainings, and they’re sitting there, going nudge-nudge, wink-wink, making funny comments about the trainers. That’s all HR wants us to do today. GC: Cover your ass.
CM: Then at the next Christmas party, someone is sexually assaulted.
GC: She’s so right. Imagine if every leader of every company did it that way: “The buck stops with me.” And every manager — half of them women, hopefully — was there to hear it. All the enabling would stop.
CM: People can tell when you mean it. They really can.