Naming and Shaming is Not Enough

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A Columbia sociology professor propositioned young Barnard interns who were his research assistants and, when they refused, took their names off joint papers. A lawyer in a California discrimination case came to opposing counsel’s hotel room at midnight, unannounced, supposedly to “continue negotiations one on one.”  A prominent Boston lawyer appeared at a young woman lawyer’s apartment when his girlfriend — and her friend — was out of town and would not take no for an answer. In short, #MeToo. 

Those experiences, plus decades as a civil rights lawyer and then a judge, makes me marvel at the public accusations of sexual harassment, but also makes me wonder: What’s next? 

Women are accusing powerful men of sexual misconduct. They are doing so publicly. They are believed, and for the first time, there are real consequences — termination of contracts and resignations in disgrace. It is what I have called “naming and shaming.” They are not bringing their cases to any court other than the court of public opinion.

Naming and shaming has worked here because of the context. The men accused are public figures; public opinion is their currency. Many of these accusations are extreme rape, assault, indecent exposure. They are not about consent; they are about power, as evidenced by Trump’s comment, “when you’re a star, they let you do it.” And these accusations have had an impact precisely because they are not “he said, she said,” but are more like “he said, and she said and she said and she said,” each claim corroborating the other.  

True, some have raised significant concerns about naming and shaming. There are no rules. There is no law about how recent the accusations must be, no forum in which the accuser can be vindicated or the accused can confront his accusers.

While I firmly reject the shibboleth that women lie about sex, it is not blaming the victim to ask as courts do, is the accusation credible? And there is no proportionality. The consequences have been extreme whether the accusation is of rape, with Harvey Weinstein, to creepy behavior, as alleged with Tom Ashbrook. Nor has it mattered whether the conduct was aberrant, or decades long. As Jim Braude asked, “Is it the death penalty for everything? “

One reason for this rule-free zone is that nearly two decades after the Supreme Court held that sexual harassment comprised employment discrimination, legal remedies are limited. Civil rights laws don’t apply to Weinstein’s accusers because they were not employees of his company. They were aspiring actresses seeking to bring their qualifications to his attention. They could have tried to persuade a prosecutor to file criminal charges, which is not an easy task. Or they might bring a civil lawsuit for assault, or intentional infliction of emotional distress. They would have had to find a lawyer, preferably one willing to collect fees out of any recovery. They would have to hope that there was no whispering campaign against them; there would be little legal protection for retaliation. And they would have worried whether they would be believed at all; few plaintiffs know about other accusers when a lawsuit begins and if there were confidential settlements, they would most likely never find out.

If they were employees, like Charlie Rose’s accusers, they could go to human resources and failing that, sue. But, more often than not, they would lose. They would have to prove that the conduct was so “severe or pervasive” as to create a hostile work environment. That should be a jury question, but nearly 80 percent of employment discrimination cases are dismissed by judges. While physical assault allegations do better, there is no guarantee. Consider the following: A woman claims that a coworker tried to kiss her, called her a frigid bitch when she refused, staked out her home, rubbed up against her, and chased her around the office. The judge dismissed the case; the appellate court agreed. The conduct wasn’t sexual harassment because even though reprehensible, he touched her “only” three times. Maybe the fourth time would have been the charm.

Why have legal remedies failed? Courts have cared more about financial costs accruing to employers because of groundless claims than they do about the costs to women of having harassment ignored. They care more about wrongly accusing someone than about wrongly exonerating someone. Perhaps judges believe that we are post-gender, just as some believe we are post-racial. But if they were watching television, reading the newspapers, listening to the radio, hearing the naming and shaming, they would know better.