Today, “[t]here is a temptation to simplify matters by viewing all harassers and their offenses as equally awful . . . .” (NY Times: How Should We Respond to Sexual Harassment?) This reflex treats all alleged harassment as equally problematic and warranting equal repercussions. This is evident in the press of the prominent parading regularly through the daily news stories.
Employers’ responses to allegations of harassment ought not be so simple.
Let’s begin by separating opinion judgments from law-informed employment judgments. Opinion judgments – which include voting judgments with respect to politicians – arise from public reactions. There is no “standard of proof” nor due process rights in this context: the public will respond as it sees fit, regardless of culpability, proof or veracity. Calls for Al Franken to resign, for John Conyers to step down, or for Roy Moore to drop out of his bid for a Senate seat are classic examples of such opinion judgments.
Employment judgments come with different sets of consequences and are governed by discrete rules. Harassment is unlawful under Title VII (the primary federal anti-discrimination statute) only if it is “severe” or “pervasive.” This means that Title VII is not a general civility code, so there is a range of behavior that may be impolite (if not boorish) but still fall well short of being harassment. Fink, Gender Sidelining and the Problem of Unactionable Discrimination (July 28, 2017) https://ssrn.com/abstract=3010235. This analysis is further constrained: unlawful harassment must be both “objectively” offensive to a reasonable person and “subjectively” offensive to the victim.
Proper differences between opinion judgments and law-informed employment judgments have disappeared in the face of the public outcry over too many incidents of harassment by too many public figures. This outcry is legitimate but the loss of nuanced analysis is not: “[a] moral panic is always a reaction to something that has been there all along but has evaded attention – until a particular crime captures the public imagination.” (The New Yorker: When Does a Watershed Become a Sex Panic.)
For now, the panic generally seems limited to public figures: politicians (who aren’t employees) and entertainers (who are only sometimes employees). The danger for employers is that their response relies more on the news cycle than on the court cases delineating what is or is not harassment. Maybe, that is a good thing? Perhaps, but, let’s reflect and deliberate first, as it poses certain challenges to employers.
First, is it possible that a snap judgment is wrong? Because of increased media attention, employers may now be tempted to take lightning-quick remedial action, often before a thorough internal investigation has been conducted. Michael Crichton’s novel Disclosure offers a cautionary tale to this end, building its plot around an opportunistic, but false, accusation of harassment. Adopting a “believe all women” mindset could also actually be counterproductive, as it may be viewed as paternalistic and “unintentionally fetishizes women.” (NY Times: The Limits of “Believe All Women”.)
Second, is it possible that this newly-minted zero-tolerance standard for violating company policies is a Trojan horse? Zero tolerance is a great sound bite for today’s news cycle but an awkward policy tool in any context for enforcing rules. (Chicago Tribune: Have We Gone Overboard With Zero Tolerance.) Employers who announce – but then fail to apply consistently – any such standard will risk creating more claims and more lawsuits: for example, the harasser claiming sex discrimination because the zero-tolerance policy was not applied to other policy violations by women, by persons of color, etc.
Third, is there no room for differentiation between venial and mortal sins (to steal a line back from Catholic catechisms)? For example, the Faragher/Ellerth defense (which requires an employer to show that it exercised reasonable care to prevent and promptly correct harassing behavior) does not require terminating all who violate the policy. Indest v. Freeman Decorating, Inc., 168 F.3d 795, 805 (5th Cir. 1999) (holding that suspension and reprimands may constitute appropriate remedial action in applying the Faragher/Ellerth defense).
Fourth, when does public perception override everything else? Employers must struggle with conduct that is facially inappropriate, but may not be harassment because the “victim” was not offended. Senator Franken has been accused of groping Arriana Huffington, but as Huffington tweeted, far from being offended, “Franken groping me in a comedy sketch photo trivializes sexual harassment because he was no more ‘groping’ me than I was ‘strangling’ him in the photo I just tweeted.” (Twitter: AriannaHuff.) Context matters, including distinctions between conduct that is admitted or documented (Franken) and conduct that is denied or even debated (Moore).
Finally, what about allegations that predate employment or are unrelated to employment? Looking at Senator Franken again, the majority of the allegations against him precede his election to the Senate (while he was arguably specializing in sophomoric humor), but are the basis for calls for him to resign. How does an employer respond where allegations arise from conduct that did not occur “on its watch”? Allegations from the distant past (incidents that lawyers would say are “time barred”) are another conundrum and Roy Moore is the poster boy for that issue.
There are no easy answers in a #MeToo world for exercising good judgment.
Yet, judgments must be made by employers who cannot wait for criminal prosecutions against the accused or defamation lawsuits by the accused. So these employment judgments must be made without a trial record by recognizing another fallacy of opinion judgments: a debater’s use of due process in a context where the process due is other than a full trial.
There is no obligation to believe all victims nor to believe all harassers who deny misconduct. Every employer (and their counsel) must make judgments in investigating harassment based on the best available evidence. The key is to ensure that those judgments are legally-informed judgments rather than opinion polls.