Subsection 4.2.  A Spectacular Drama - The Most Eye Catching Sexual Harassment Case

 

In July, 1991, President George W. Bush nominated Clarence Thomas to replace Justice Marshall, who had announced retirement, as one of nine justices of the United States Supreme court, a position for life.  The Senate then conducted a hearing to confirm the appointment of Thomas.  At this point, a former subordinate named Anita Hill who had worked under Thomas when he headed the "Equal Employment Opportunity Commission", emerged to accused Thomas of having harassed her many times a decade ago. In 1991 Hill was a professor in the Oklahoma University School of Law. Her accusations asserted that Thomas persistently asked her out her many times, though she refused, and that he talked with her about adult movies he had seen and described the pornographic acts of the male actor. Further, he claimed that in sexual matters he was a gift to women.

 

After Hill made public her accusations, she testified in the Senate.  But Thomas was not showing weakness either. When he testified in the Senate, he vigorously denied that any of those stories happened. The several days of hearing were earth shaking for the whole country. Almost all television networks broadcasted the hearings live. The entire nation was captivated, hanging around the television sets day and night. According to some reports, at its peak twenty million persons in America were watching the live broadcasts. The number of people calling the Senate with an opinion exceeded one million calls. Not until Thomas was confirmed by Congress by a vote of 52 to 48 on October 16 did the level of excitement subside.  

 

The most enticing aspect of the hearings was the fact that both the accuser and the accused were articulate speakers and debaters. One was a law school professor. Confronted by the interrogations by the senators from every angle, she replied calmly and fluently. She was clear and precise in her choice of words and phrases, and came to the point concisely and showed absolutely no sign of nervousness, trepidation or being shaken. The opposite witness was a judge who forcefully denied that any of the stories ever happened. He expressed clearly his anger at being wrongfully accused, but did not ever attack the motive of the opposition in a over the top manner. Therefore both sides held their ground and displayed no weaknesses.  No matter how the senators came at them directly and indirectly from many angles, no hints of flaws were discovered. Like many American audience, I watched several tens of hours of live television broadcast and arrived at the same conclusion: this was an American Rashomon story. Among Thomas and Hill, one must be a truthful witness. The other was not only a complete liar, he or she was an actor at the peak of his or performance. As for who was right and who was wrong, no third party could know.

　　

The accusations and defense of Thomas and Hill not only shook up the entire United States, they attracted attention abroad.  The public opinion in Europe was uniform in the belief that Americans made a big deal about the Thomas hearing, because according to the accusations of Hill, other than a little dirty language, there was no act of violence, not even a touching of hands.

 

The reason we cite the spectacular show of Hill's charges against Thomas is naturally not because the "show" is spectacular, but because after the "performance" before the American people, the entire country began paying attention to the problem of sexual harassment. Many women's groups called for female victims of harassment to stand up and file complaints to stop the long prevailing sexual harassment. The positive influence of the show was to support the women who have been truly harassed sexually. The negative influence was that the number of sexual harassment cases increased exponentially nationwide. Even well behaving gentlemen begin to worry.

Subsection 4.3.  What is Sexual Harassment?

 

What is the reason for saying that the rapid increase of sexual harassment cases made even well behaved gentlemen fear and tremble?  The principal reason is that the trend in American law is to expand continuously the definition of "sexual harassment". That surprises not only foreigners.  Before the nationwide television live broadcasts of the Justice Thomas hearings, even the American public did not understand the broad definition of sexual harassment and the threat posed by the law to the men and employers. When Hill accused justice Thomas of sexual harassment in Congressional hearings, the accusations included his persistent asking her out and talking about adult movies. Even if he had never touched the hand of Hill, according to the current "hostile work environment" case law, Thomas was without doubt guilty of sexual harassment.

 

How numerous are sexual harassment cases in the United States? There are already so many sexual harassment accusations by subordinates against the representatives and officials in different states and local governments. Even President Clinton could not escape. However, because civil cases involve only monetary damages, the defendants in those cases tend to be celebrities, rich people or big companies. This is a fact. When Clinton was the governor of Arkansas, Jones was a small functionary in the government. In 1994 she charged that three years previously President Clinton once instructed his body guard to call her into his hotel room. After she entered, within several minutes of conversation Clinton removed his pants and asked her "for love".  Jones said she refused and left. Afterwards Clinton avenged her by using his position to deny her promotion and pay increases, and so on. Jones demanded from Clinton damages of seven hundred thousand dollars. 

 

Regardless of the outcome, after Jones accused the President, she herself was on national television programs. She became a principal for the advertisement of a clothing company named No Excuse, and issued a video tape, each selling for twenty dollars. Although she was thirty some years old, in the video tape she wore clothes more suitable for young women and used the tones of a young woman to show her naive innocence, telling her "story" with Clinton in a manner inviting pity. Many people believed that Jones was not a credible plaintiff, and the "story" she told was not witnessed by a third party. Still the accusations of Jones have already seriously damaged Clinton politically and financially. The sister of Jones said that when Jones was telling her that she was going to sue Clinton, she said: "win or lose, I can smell money!".

 

Regardless of who are right or wrong, the increasing number of sexual harassment litigations result in part from the attractive amounts of damages award. From a certain angle, this type of cases become “business that costs nothing”. For example, in a sensational sexual harassment case in San Francisco, the judgment was over three million dollars. The defendant was Baker and Mckenzie, the biggest law firm in the United States. A former female secretary sued an obviously misbehaving former boss. The complaint accused this lawyer of sexually offensive talks (for example, that her left and right breasts were not the same size).  Further, when she bent down to pick up documents he touched her rear end from behind. Once he put a packet of chocolate into her chest cleavage. She had complained directly to the law firm but did not receive timely relief. As a result, after showing up for work for fifteen days, she quit. Of course, the superior who was accused did not deserve any sympathy, because besides the plaintiff the law firm had received from other female employees many complaints about him.  And many female employees testified in this case, however, this sexual harassment did not involve any violence or rape. Nevertheless when the female employee prevailed in this sexual harassment civil lawsuit, the judgment was over three million dollars, causing an uproar in public opinion. (Originally the jury award was seven million dollars; on appeal, the court reduced it by half). The misbehaving superior paid two hundred and ninety thousand dollars;  the balance was paid by the law firm.

 

The legal fees in American litigations are in two categories. One is based on hourly fees. The other is for the lawyer to advance the costs, and after victory shares in the award. In personal injury and the new and rising sexual harassment cases, the lawyer often chooses the second category. In actual fact, sexual harassment is a lucrative business, and may even be an investment with no need for capital. In the traffic accident and the more serious cases involving actual evidence, the plaintiff's lawyer needs at least some eyewitnesses, tangible evidence, police report, medical reports after the accident, expert witnesses to testify, and so on. If the case is lost, the plaintiff's lawyer not only received no legal fees, he has to pay the court costs and other expenses.  It can be said an investment in vain. But a typical sexual harassment case only involves two persons' private affairs. There are no eyewitnesses, tangible evidence, and definitely no need for expert witness. The facts of the case are generally simple. The plaintiff tells one story. The defendant naturally rebuts with another story. It is one's word against that of another, and it is up to the jury to decide the credibility. In truth, we shall never know if Thomas ever harassed Hill sexually, and the truth will forever escapes us. Thomas said that he had never even touched her hand, so who should we believe? If Thomas were lying, he should absolutely be kicked out. But if Hill were lying, her accusations almost destroyed the career of Justice Thomas.  Besides these two individuals, who knows the truth?

 

Sexual harassment cases are a good business because the laws about them are vague, and the requirement of witness and tangible proof is not high. The investment is small, but potential returns are great. The defendant typically is rich, or a celebrity or someone who has bought insurance. So I say sarcastically, under these circumstances, it will actually be surprising if sexual harassment cases in America are not rampant.

 

That reminds me of Hong Kong and countries in the East, where men do not respect women.  Profane jokes are common in public events.  Flirting with female colleagues is no big deal. Here is a word of advice to this kind of gentlemen. You should be particularly careful, or you will easily be involved in a sexual harassment lawsuit. When it comes to litigation and big damages awards, Americans are absolutely ruthless!

 

Section 5.  The Story of a Child's Property Right

 

Mr. Wang and his wife from Hong Kong purchased a piece of land in California as a long term investment. They thought that the property eventually would be left to their children, so why not put the names of the two children on the property title and save the future process. The realtor and title insurance company had no objection.

 

Two years later the land value increased. A developer was willing to pay several times the original cost to buy this piece of land. Mr. Wang decided to sell the land and exchange it for another house they were interested in and in no time signed the contract to buy the house.  Everything was moving along smoothly. However, as the deal was about to close, the title insurance company notified Mr. and Mrs. Wang that, because the title had the names of two children and they have not reached adulthood and could not sign a contract, the sale of the land must be abandoned.

 

According to California law, a person under 18 can sign a contract but he can change his mind when he reaches 18 and rescinds the contract. Since Mr. Wang's land title contained the names of two minor children, even if the children were willing to sign, the buyer would not accept this transaction to protect his future.

 

How could Mr. Wang have envisioned that the deal had to be abandoned because of the children? So he had to find a lawyer. After studying, the lawyer applied to the court for an emergency relief. He explained to the judge what had happened and asked the judge to give special permission allowing Mr. and Mrs. Wang to sign on behalf of the children to close the sale.  Mr. Wang was fortunate, because the judge said that he could permit the parents to sign to close the sale, but the judge said that since a part of the property belonged to the children, their interest had to be protected, so he listed several conditions for the Wangs to sign before the court issued the special permission.  The conditions included:

 

First, the lawyer must present evidence that this sale/purchase is good for the children.

 

Second, they need to prove that the funds received from the land sale is used to buy another house which benefits the children; the children's names must be on the house title.

 

Third, to protect the interest of the children, the Wang parents are appointed trustees for the part of the property owned by the children.  Without the court's permission, the Wangs cannot sell or transfer this part of the property until the children reach age 18. Then they can take over the management of their own property.

 

The problems were solved, but Mr. Wang had spent a lot of time, energy and money.  Further, in future buy and sell transaction, they would face similar problems because the names of the children still existed. During those few years when property value increased rapidly, Mr. Wang regretted so much what happened.  But if the problem were not solved, Mr. Wang not only missed the chance to make money, the contracts they had signed to sell land and buy a house might lead to litigations. In the end the investment might be all for naught.

 

The above example not only involved the purchase and sale of property, it also reflects the principle of protection of minor children under American law.  Although Mr. and Mrs. Wang were the parents of the children, and the property was given to them without conditions, when the sale and purchase were involved, the judge became the guardian of the minor children and had both the right and obligation to issue an order to protect the interests of the children.

 

Similarly, in divorce cases involving minor children, the disposition of the children is not decided by the divorcing parents and must be approved by the judge, who will try his best to respect the wishes of the children.  For example, both parties in the divorce may agree that the children live with the mother, but if the children tell the judge in court that they are willing to live with the father, the judge will reconsider the situation of the entire family before making the final decision.