Naming and shaming is not enough

This is an extraordinary moment. The only question is whether it will last. Women are accusing powerful men of sexual misconduct. They are believed and there are consequences - finally - to the accused: termination of contract, firing, leaving office. It is what I call "naming and shaming." These women are not bringing their cases to any court other than the court of public opinion. Some may threaten litigation; most do not. Naming and shaming is having a profound impact. It has worked because the men accused are in the public eye. Public opinion is their currency. Many of the accusations are extreme; nothing subtle or ambiguous about them: rape, assault, indecent exposure. The comment, "They let me get away with it," as Trump said, is not about consent. It is about power, like "droit de seigneur" in which the feudal lord had the right to have sex with a vassal's bride on her wedding night. And these accusations have had an impact precisely because they are not "he said, she said" but more like "he said, and she said and she said and she said," each claim corroborating the other. True, some have raised concerns, especially when naming and shaming involves a favorite senator or TV host. True, too, there are no rules. There is no law about how recent the accusations must be. There is no forum in which the accusers can be vindicated or the accused can disprove the charges. There are no evidentiary standards. There is no place to confront the accusers. And there surely is no proportionality. The consequences have all been extreme. As Jim Braude asked me: "Is it the death penalty [for everything]?" One reason we are in a rule-free zone is because the law has proved inadequate to the task. Nearly two decades after the Supreme Court finally held that sexual harassment comprised sex discrimination in employment, remedies for sexual harassment are still too limited. It doesn't apply to the women accusing Harvey Weinstein, for example, who were not employees of Weinstein's company. They were aspiring actresses, not applying for any role, just wanting to bring their qualifications to his attention. Their only recourse would have been to persuade a prosecutor to file criminal charges - not an easy task. Or they might have brought a civil lawsuit for assault, or intentional infliction of emotional distress. They would have had to find a lawyer, and if they couldn't pay, persuade the lawyer to collect fees out of any recovery. They would have had to hope there was no whisper campaign against them. And they would have had to worry whether they would be believed at all, as few plaintiffs know about other accusers when a suit begins, and when confidential settlements are involved, no one ever knows. If they were employees, like Charlie Rose's accusers, they were obliged to file federal charges within six months. Sexual harassment then requires proof that the conduct was sufficiently "severe and pervasive" to create a hostile work environment. While that should be a jury question, nearly 80 percent of employment discrimination cases never make it that far. They are dismissed in whole or in part by federal judges who hardly represent a cross section of the community, and whose recent workplace experience is, to say the least, limited. Even if the claim makes it to a jury, more civil rights verdicts are overturned by courts than in any other category of cases. Even favorable verdicts fare worse on appeal than verdicts in other cases. While physical assault allegations do better, there is no guarantee. Consider the following: A woman claims that another employee 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, and 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 is this? Courts care more about the costs to defendant companies of groundless claims than they do about the costs to women of having harassment ignored; more about false positives (wrongly accusing someone), than about false negatives (wrongly exonerating someone). If naming and shaming changes that - and it just might - it will have accomplished a great deal. This has gone on too long. Decades ago there was the Columbia sociology professor who regularly propositioned young Barnard interns; and the lawyer in a discrimination case who came to opposing counsel's hotel room at midnight to "continue negotiations"; and the attorney who, appearing at a woman's apartment when his girlfriend was out of town, would not at first take "no" for an answer. In short, #metoo. ----- Nancy Gertner is a professor at Harvard Law School and of counsel to the Boston firm Fick & Marx. She is a retired U.S. District Court judge. Published: Wed, Dec 27, 2017