As Predicted, #MeToo Backlash, Pense Effect, Hurting Women

As Predicted, #MeToo Backlash, Pense Effect, Hurting Women
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Simple Change Might Encourage Men to Work With and Mentor Female Colleagues and avoid inappropriate sexual behavior accusations

WASHINGTON, D.C. (October 30, 2017):  Women are experiencing a major backlash from the #MeToo movement, especially within the legal profession, as predicted when the new movement first began by public interest law professor John Banzhaf. But, says Banzhaf, there might be a simple remedy, long used and perfected in somewhat different contexts, which could help.

A survey by Working Mother and the ABA Journal showed that a majority of men (56%) are already nervous about one-on-one interactions with female colleagues at work because of fear they might be accused of inappropriate sexual behavior or a related impropriety.   As one male lawyer put it: “One allegation can be a career killer . . . I will not be alone in the office with any female – whether she is a colleague or a support-staff member. This is to protect myself.”

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Similarly, a Pew Research Center poll shows that a majority of both male and female workers believe that the #MeToo movement is interfering with male-female relationships in the workplace, and this is likely to hurt professional women far more than men, says Banzhaf, who has won over 100 cases of discrimination against women.

A poll by The Economist shows that there has been a shift in attitudes against the female complainants.  For example, those who think that men who sexually harassed women at work 20 years ago should keep their jobs has jumped almost 30%; a growing number believe that women who complain about sexual harassment cause more problems than they solve; and those who say that false accusations of  inappropriate sexual behavior are a bigger problem than attacks that go unreported or unpunished has shot up almost 40%.

Interestingly, these dramatic changes in viewpoints have been more pronounced among women than among men, which might not be surprising since they are feeling the effects when men not only become more reluctant to mentor female colleagues, but also even to have normal interactions with them in workplace setting - the so-called Pense effect.

As one female attorney at a major law firm explained, "I've talked to men - well-meaning ones - who say they're scared of being taken the wrong way by women, who don't know how they should interact with female associates and colleagues. I'm afraid this will mean men will exclude us even more from relationship-building opportunities. If there's a case that entails travel, they might think it's safer to pick a male colleague than me."

A survey by the Society of Human Resource Management showed that one-third of company executives have changed their behavior to avoid inappropriate sexual behavior charges as a result of the MeToo movement, and at least some of the changes could be very harmful to women in the work force.

For example, some who are saying that perception is more important than reality have declared that they would stop hiring females.  Some 5%-10% of the survey responses were considered "extreme."

Similarly, a survey by Sheryl Sandberg's Lean In organization found that the MeToo movement has made more male managers reluctant to mentor, work one-on-one, socialize or go on business trips with female colleagues.  Yahoo, in a piece entitled "The #MeToo Backlash Is Building," reports that "the fallout is that some male lawyers are so fearful of being tainted with sexual harassment charges that they're running for the hills, dodging close working relationships with women."

Banzhaf suggests that failure to incorporate any elements of due process or even fairness has triggered cries of "witch hunt" and worse which, when not corrected, has led to a backlash which might hobble this important social phenomena. Fortunately, it should be possible to bring some order out of the current chaos by using well established techniques from due process, says Banzhaf, who teaches a course in the area, and has brought over one hundred successful actions concerning sex discrimination against women.

The two essential elements of due process or fundamental fairness in an employment termination proceeding are that the accused of inappropriate sexual behavior should have reasonable notice of the specifics of which he is being charged, and a fair opportunity to defend himself in a proceeding in front of an impartial fact finder before any final and irrevocable employment decision is made.

Thus, by any reasonable standard, a dismissal based solely upon inappropriate sexual behavior allegations is unfair, as is a proceeding where the accused is told no more than that "your language was occasionally inappropriate sexual behavior" or "you leered at women" since the vagueness makes an effective defense impossible.

Such fair proceedings may of course require some time, but some companies have acted very precipitously, arguing that the need to protect employees and other vulnerable people precludes even the briefest of hearings, and overrides any need for fairness.  But the law in the area of due process has demonstrated that these two requirements - protection and fairness - and not incompatible.

In many due process situations, there is a pre-termination proceeding or process which takes place before any termination related to inappropriate sexual behaviorbecomes final.  The usual purpose is to protect those who might be vulnerable before a fair hearing and a final determination regarding employment can be made.

For example, an unsubstantiated claim of any kind of inappropriate sexual behavior or language by even one pre-teen child may well be enough to immediately but temporarily suspend a teacher, or at least to keep him out of the classroom until there can be some kind of hearing at which the evidence against him is presented, and he has an opportunity to put on some kind of defense.

Many police departments go even further, taking his gun and suspending a police officer's privileges immediately after any shooting, even if there is no suspicion that the action was improper.  In this way the public is temporarily protected until there can be a thorough investigation and a hearing.

When an employee, including any in a position of great power, is charged with sexual harassment, there are likewise many means of protecting others who are more vulnerable without immediately terminating his employment.  For example, he could be required to take a leave of absence for weeks or even months before a fair hearing can be held.

If it is alleged that he has engaged in sexual assault or even rape in his office, the door and lock could be removed and/or replaced by an unlockable largely glass door.

If an employee claims that a male engaged in sexually inappropriate behavior when she was summoned to his hotel room or home, any such visits could be strictly prohibited, and/or the delivery of any documents to a person's hotel room or home could be made by one or even two male security officers.

These are only a few examples, says Banzhaf, of how corporations can take the time to be fair to all concerned without having employees or others put at possible risk of inappropriate sexual behavior even if a hearing cannot take place for a month or two.  They may seem awkward as well as expensive, but it is far less than the costs associated with suddenly terminating a very valuable employee.

While some have suggested that simply a sufficiently large number of accusations should be enough to establish guilt, and sufficient cause to justify immediate dismissal, this is clearly inconsistent with well established principles of law, and fundamental understandings of fairness.

A accused bank robber cannot be convicted, without a fair trial, of robbing the XYZ bank on July 15th, just because others have come forward to say that they saw him robbing the same bank in April and May and June.  In most situations, a driver cannot be found to be at fault in an accident for failing to stop at a stop sign if he can provide a persuasive defense, even if dozens of witnesses come forward to claim they have seen him run stop signs in the same town on many previous occasions.

Protecting women who have been victims of sexual improprieties is not incompatible with basic fairness for those accused, nor of the policy that women making such accusations shouldn't be disbelieved.  @profbanzhaf

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