#MeToo Movement Triggering a Serious Backlash Hurting Women; Fortunately, There’s a Simple Well-Tested and Generally Accepted Remedy
WASHINGTON, D.C. (May 18, 2019) – There’s new evidence confirming earlier studies which showed that the #MeToo movement is causing a backlash which is hurting women.
A stunning 60% of male managers confessed that they are now uncomfortable mentoring, working one-on-one, and socializing with women where they work because they are "too nervous" about being accused of sexual harassment; a very troubling 30% increase in just one year.
That's very important, says Sheryl Sandberg, who's SurveyMonkey helped conduct the poll, because "the vast majority of managers and senior leaders are men, . . . If they are reluctant even to meet one-on-one with women, there's no way women can get an equal shot at proving themselves."
John Banzhaf, a pubic interest law professor who has won over 100 cases involving sex discrimination against women, says that this is happening in the legal profession - something he predicted when the movement first began. But, says Banzhaf, there might be a simple remedy, long used and perfected in somewhat different contexts, which could help.
An earlier survey by Working Mother and the ABA Journal showed that a majority of men (56%) were already nervous about one-on-one interactions with female colleagues at work because of fear they might be accused of an 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."
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.
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 sexual assault 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.
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."
A survey by the Society of Human Resource Management showed that one-third of company executives have changed their behavior 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, 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.
The two essential elements of due process or fundamental fairness in an employment termination proceeding are that the accused 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 allegations is unfair, as is a proceeding where the accused is told no more than that "your language was occasionally inappropriate" or "you leered at women," since the vagueness makes an effective defense virtually 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 becomes final. The usual purpose is to protect those who might be vulnerable and become victims before a fair hearing and a final determination regarding employment can be made.
For example, a single 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 or even rape, 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 until 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 be 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 several similar 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 earlier.
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 had 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.
Women, who are the ones feeling this backlash, and being hurt by it, should join with men to be sure that, while women are protected, the accused should be entitled to a fair hearing before dismissal.
JOHN F. BANZHAF III, B.S.E.E., J.D., Sc.D.
Professor of Public Interest Law
George Washington University Law School,
FAMRI Dr. William Cahan Distinguished Professor,
Fellow, World Technology Network,
Founder, Action on Smoking and Health (ASH),
2000 H Street, NW, Wash, DC 20052, USA
(202) 994-7229 // (703) 527-8418
http://banzhaf.net/ jbanzhaf3ATgmail.com @profbanzhaf