An Intellectual Discussion of Sexual Harassment with Richard Epstein
2018-03-09 · Guest: Richard Epstein (Hoover Institution and NYU Law Professor) · 52:04
Evolution of Sexual Harassment Law and Due Process
Bob Zadek and Professor Richard Epstein discuss the legal and social evolution of sexual harassment law, tracing its origins from the Civil Rights Act of 1964 to modern-day campus adjudications. They explore the tension between market-driven reputational consequences, such as those seen in the Harvey Weinstein case, and the administrative state’s influence through Title IX and “Dear Colleague” letters. The conversation highlights the erosion of due process in quasi-judicial proceedings and the limitations of defamation law in protecting the accused.
Topics: Sexual Harassment, Title VII, Title IX, Civil Rights Act of 1964, Administrative State, Due Process, Defamation Law, Harvey Weinstein, Reputational Markets, New York Times v. Sullivan
Speakers:
- Bob Zadek: Host of the Bob Zadek Show
- Richard Epstein: Senior Fellow at the Hoover Institution and Professor of Law at NYU and the University of Chicago
Introduction to Sexual Harassment [00:18]
Bob Zadek: Hello everyone, welcome to the Bob Zadek Show, the longest-running live libertarian weekend talk radio show in the country. Thanks so much for listening this Sunday morning. We are always the show of ideas, never the show of attitude.
This morning’s discussion is sexual harassment, aka sexual discrimination, perhaps. We’ll find out. It is a subject that everybody in America has an opinion—dare I say, strong opinion. It seems to have leapt into the public consciousness, into the media, into the courtrooms, into the schoolrooms. It leapt like Athena, full-grown, out of somewhere. No one knows exactly how it started, except perhaps with the scandal involving Harvey Weinstein. Everybody knows about him. It is a topic where there is so much heat and perhaps so little understanding. This morning, we are going to help fill the gap between all of the heat and emotion and the lack of understanding of this important issue.
You will find this morning we will discuss, and we will discuss in detail, how the executive, the legislative, and the judicial branches of the federal government got involved. We will discuss the history. This perhaps all started with, of all people, Lyndon Johnson in 1964. More about that in a moment. To help us understand this topic with a fascinating pedigree, I’m delighted to welcome back to the show for a third time, Professor Richard Epstein. Professor Epstein is a senior fellow at the Hoover Institution. He is a professor of law at my alma mater, New York University Law School, and is also a senior lecturer at the University of Chicago. He hosts The Libertarian, which is a Hoover Institution podcast, and he often publishes the blog Defining Ideas. Richard, welcome back to the show this morning.
Richard Epstein: It’s very nice to be here.
The Civil Rights Act of 1964 and the Definition of Sex [03:51]
Bob Zadek: Now, Richard, sexual harassment, which right now is in the news in two distinct contexts—it doesn’t really cover all aspects of society, but it has been primarily limited to the workplace and the college classroom, indeed the university setting in full. It seems to me the whole discussion of sexual harassment has its roots, does it not, in a somewhat surprising bill: the Civil Rights Act of 1964. We all know the history. It was enacted during the Johnson administration, primarily to right the pervasive wrong which blacks in America suffered. Is that a fair place to start in the discussion of sexual harassment?
Richard Epstein: It’s a fair place to start, but it’s a somewhat misleading place to start. The provisions you’re talking about have to do with the questions in the ‘64 Act of trying to take the employment discrimination provisions and have them cover not only matters of race but also matters of sex, as it was then called. This was proposed by a Southerner, Howard Smith, and the thought was, maybe, that if you put the two things together, the whole bill would go down. There are other views which say Smith actually believed it.
Anyhow, the term gets in there. If you go back and scour the record of the 1964 Civil Rights Act in terms of its discussions on the Senate floor and so forth, there’s not a word mentioned of sexual harassment. The transformation of the material probably owes more to the book that Catharine MacKinnon wrote in 1978, Sexual Harassment of Working Women, in which what she did for the first time was the claim that if you’re engaged in harassment in the workplace, you should treat this as a form of sex discrimination having to do with the conditions of employment. So, regardless of the original intentions of anybody who drafted the statute, it would be covered by its language.
There’s no question that what she wrote in 1978 resonated very quickly with large portions of the electorate. I actually criticized that position as a technical matter—not because I’m in favor of sexual harassment, but it seems to me that the issue is not one of discrimination. You could have men who are willing to harass men and women, or women who are willing to harass men and women. The real issue here is the sort of near-close association between harassment and assault, which is a very, very serious kind of offense. That was traditionally covered not so much in the sexual discrimination laws, but rather by the common laws having to do with intentional infliction of emotional distress.
The point then comes to the Supreme Court some years later, and what they do is they basically take the position that MacKinnon had done and said, “Yes, sexual harassment is in fact something covered.” Then it develops two kinds of relationships: one is a sort of quid pro quo—it’s a direct request for favors in exchange for some kinds of promotions—or, in the other case, what they call the “hostile environment,” where in effect the pervasive chatter, physical appearance, and so forth of a given workplace leaves women in a very uncomfortable and disadvantaged position.
The Supreme Court, when it did this, was actually very chary, very cautious. It wanted to have relatively high thresholds before you made this go. I think, in fact, in the Supreme Court that’s still the case. But just to finish the story up, as it becomes an administrative matter enforced most notably by the “Dear Colleague” letters that were written by the Office of Civil Rights in 2011, the bar for sexual harassment becomes somewhat lower. The institutional responsibilities, not only to deal with cases after they have occurred but to put into place an apparatus to deal with it before they occur, becomes a much more salient issue. So the thing has essentially continuously evolved from 1964 more or less to the present. The last thing in this is that Betsy DeVos and the Office of Civil Rights removed the 2011 “Dear Colleague” letter, saying in effect, “We’re going to rethink this thing from the ground up,” and that’s where it stands today.
From Discrimination to Harassment [09:58]
Bob Zadek: Now, what’s interesting is, as Richard pointed out, tossing in—I don’t mean to be flippant about it, but tossing in the word “sex” as sex discrimination into the Civil Rights Act was designed to be a poison pill to kill the bill, but it wasn’t a poison pill. So now we have, accidentally if you will, sexual discrimination gets considered to be part of the Civil Rights Act. Therefore, freedom from sexual discrimination becomes, somewhat accidentally, a civil right. But that’s discrimination. And as you pointed out, it involved some judicial and administrative evolution to go from discrimination—everybody kind of has a good sense of what discrimination means: “You’re not going to get the job because you’re X.” That’s discrimination. But it’s a bit of a jump; it doesn’t flow automatically that harassment equals discrimination. So there was a jump along the way from discrimination to harassment.
Richard Epstein: It was also, I mean, if you check and comb the legislative history, there’s not a word about that particular subject in it, in one of the most exhaustively debated topics. But I think in terms of current debate, even if you were to sort of overrule all the decisions and say Title VII and later on Title IX, which was passed in 1971 dealing with institutions that receive government aid, there would be an enormous push to put these things right back into the bill, and it would pass virtually unanimously tomorrow. So I don’t think one should spend too much time worrying about the pedigree. I think the real question that one has to worry about is exactly how do you administer this kind of a system so as to make sure that when particular allegations are made, that they’re fairly and properly adjudicated. That turns out to be a rather difficult problem.
Market Retribution and the Weinstein Case [12:00]
Bob Zadek: And what’s happened of late, and part of the reason that this subject started to tickle my imagination and get me thinking just intellectually about the issue of sexual harassment, is that in the most recent—when the Harvey Weinstein behavior came to the public attention, and it was immediate as we all remember, and Harvey Weinstein lost everything. The company failed, his company failed, Weinstein Company failed, Miramax failed, or went into financial difficulty. None of that, none of that was the result of litigation or governmental action. So that failed, interestingly enough, in the marketplace. That invited, at least my thought process, to compare the effectiveness—once you determined that sexual harassment, that kind of behavior in the workplace is bad, evil perhaps—once you determine that, isn’t it interesting that the marketplace was so effective in accomplishing the results, maybe more effective than litigation or the government would have been in punishing the wrongdoer, albeit without, of course, the due process of a courtroom.
The Fragility of Reputation [13:20]
Richard Epstein: Yes, look, I mean, one of the things that people understand, I think, is that the single most valuable asset that any corporation has in its ability to do its business is the reputation and the confidence that it has with the public in the market. Once it became pretty clear that the Weinstein allegations were all true, that became just a relentless reaction.
The difficulty, of course, is that reputation can be fickle. It can be used against people for whom the charges are much less clear. What happens then is if in fact the situation is inflated, you can have not only great powers of correction, but you could have great actions of injustice against other kinds of people. I don’t follow all of these cases with a great deal of concern about the details and so forth, but it’s very clear just as a first approximation that what Harvey Weinstein did bore no relation to what was said that Garrison Keillor did, and his show was also off the air because Minnesota Public Radio decided that they were no longer going to broadcast the new editions or any of the old editions.
Some people can start to say, after a while, the reputation game becomes too severe, too soon, too effective. What you would like to do is to have some mode available where people who have been charged and charged falsely can exonerate themselves, or at least explain why it was that in their particular case, you’re talking about a relatively minor offense as opposed to some hideous situation of successive and ugly encounters with women. One of the tragedies of the current situation is any sense of proportionality that might take place, tying punishment with the severity of the offense, tends to get lost in some of these reputational situations.
Many years ago, when I wrote about products liability law, one of the things that I stressed is that litigation in many cases for known bad products was a relatively slow and weak thing. What would really kill companies was in fact the reputational losses. But those were all reputational losses of events whose public nature was so clear that there could be no dispute about their uncertainty.
To give you a couple of examples of that, there was a famous company called Bon Vivant, which used to make vichyssoise. One day it put out a load of vichyssoise which was contaminated with botulism and killed a dozen people or so, and the company was out of business within a week. The clear explanation is, of course, nobody could doubt that it was its vichyssoise that had done this.
On the other hand, I at least knew of one person, a woman who had been a caterer who lost her business because somebody came to one of the events that she had put together, and what happened was somebody died of food poisoning. Only after she had gone out of business was it discovered that the host of the particular party had taken his day-old salad and put it out with all the other stuff, and that nothing which had been done by the cateress in the particular case had anything to do with the particular death in question. So that’s the kind of reputation that you can’t get back.
When you talk about airline accidents and so forth, and a plane crashes, it’s pretty clear that you’re going to have extensive liability—you know, $100, $200 million—and then you look at the value of the stock of the company whose plane has gone down, and the losses are 20 times that size. That’s because of the anticipation that future business won’t come there. But in that case, too, there’s nobody who can dispute the particular fact in question as to the failure of the airplane or the breakdown. In the sexual harassment cases, since much of this is covert and private, the question of truth of the allegations in some cases, not in all cases, becomes something unquestioned.
What you’d really like to do is to find a way to slow down the public condemnation until the person who is charged has a chance, even in the public arena, to defend himself or herself against what’s going on. I think in many cases now there’s a sufficient reluctance in these cases so that the charge itself then triggers these massive responses. Even if you were to exonerate yourself later on down the line, the damage done by the initial condemnation is extremely difficult to undo.
The Decline of Defamation Law [18:54]
Bob Zadek: And of course, your last comment, you almost sounded wistful that you wish there was a way to somehow control the dramatic effect of loss of reputation, perhaps unfairly. But of course, it’s impossible. It’s a free speech function and can’t be controlled. So the question is, since it’s there, is that sort of swift and sure—not always correct, but a cure? Or how does that cure deal with the problem versus the slower and somewhat political—although it’s all political—approach of dealing with it through the regulatory branch or through the courtroom? You can’t do anything about loss of reputation. It is very dramatic and, as you pointed out in the vichyssoise case, very immediate and very dramatic, far more dramatic than it would have been perhaps in a courtroom. The courtroom would have been more measured punishment if somebody did something wrong.
Richard Epstein: Let me mention one other thing which I think does play a role in this, which is the law of defamation. Generally speaking, there used to be a day when if somebody made a false charge against you, and you took them to court and said, “Look, you accused me of tampering with an election, of committing adultery,” and so forth, and these facts were just wrong—whether or not you knew they were wrong, if you made them with that degree of particularity, you could be held responsible.
But the defamation remedy is about as useless as one could imagine today because whenever one is dealing with the issue of defamation with respect to an established public figure, the rules to recovery have been very, very narrow. There are two elements of this which I think you have to bear in mind. One of them is a doctrine which in Latin is mitior sensus, or in English is called the doctrine of innocent construction, which means that if you have a charge that can be read, however fancifully, as a non-defamatory charge, and you do that, you always give it the innocent meaning. So what happens is the lawyers look at this thing and they understand it in a way which is often diametrically opposed to the way in which ordinary citizens do. So it becomes extremely difficult to win cases on that score.
So when the makers of Alar were falsely accused in a well-publicized story of committing or creating a dangerous product, the product was put out of business long before the defamation suit was brought, and the defamation suits failed. The other element from the New York Times rules, which was originally a defamation case having to do with the various ads associated with the civil rights movement protesting what went on in Alabama in the early 1960s, the rule said even if the statements are false, they have to be made with actual malice, meaning that you have to know that they’re false or have reckless disregard of their truth.
When you put that condition on words that were in good faith uttered but which had incredibly bad consequences to them, they are no longer actionable. So again, there’s nothing there. If you actually look at the literature on defamation and so forth, there isn’t an important defamation case since about 1990 or 1991, precisely because all these actions have been beaten back. Whereas there were a huge number of defamation cases brought before that time, mainly in federal court and so forth, and they were causes célèbres. But that part of the game is gone.
Once you get rid of the ability to hold people accountable for the charges that they make, the mix of charges is going to be very different. You’re going to get more wrong charges, more reckless charges, given the difficulties of proof that are associated with this line of the lawsuit. So the entire situation is, I think, really somewhat out of control in some of these cases. This is not to say that all the charges are wrong, but it is to say that sometimes the campaigns that mount—since the rules that, as it were, restrain what people make by way of charges are so weak and the response to the charges is so powerful—one really gets very, very nervous. But it’s not at all clear how anyone could put the boat together again. It’s going to take a change in public sensibilities on this issue, and let’s just hope that this thing calms down a little bit. You still want to get the people who have committed these horrendous acts, but you don’t want to spread the net so wide that you bring in innocent people or people whose offenses are trivial compared to those of others involved in this area.
Title VII, Title IX, and the Administrative State [22:28]
Bob Zadek: Now, what’s interesting, Richard, as we go to our very short one-minute break, is that sexual harassment in the broad concept is not punishable in general in society. Most of the attention, because of Title VII—and I’ll explain Title VII and Title IX in a moment—but most of the attention is in two subsets of society. Title VII deals with employment discrimination; it’s Title VII of the Civil Rights Act, Title Roman VII. And Title IX of the Civil Rights Act deals with college campuses.
So we start with sexual harassment as boorish behavior is not per se actionable. It may implicate other bodies of civil or criminal law, tort law, but it’s not per se actionable under federal law, if I am correct. However, it is actionable, and all of the attention is in two places: in the workplace and in college campuses. And that perhaps is not an accident. Both were at one time male-dominated institutions—employment, at least in middle management and upper management, and college campuses. It was only relatively recently in our lifetime that women became equal participants in both of those environments. Therefore, women entering a male-dominated environment found themselves subject to an enormous amount of unpleasantness, if not worse, if not almost rape or rape. So it’s not a coincidence that those two areas got all of the attention.
But Richard, when we come back from our one-minute break, just—we mentioned Title VII and Title IX, and that implicates—and also we didn’t mention the Office of Civil Rights, the federal agency which has been enforcing most of this, as you say, stuff. Let’s talk about the role of the administrative branch of government, the executive branch in this process, because they have been very active. And also when we come back from break, let’s talk about the other concept you mentioned—I want the audience to understand it—which is guidance letters and their role. This is Bob Zadek speaking with Professor Richard Epstein. We are talking about sexual harassment. We are trying to look under the hood and examine the issue intellectually if we can. We’ll be back in one really short minute. Lots to follow. Please stay tuned.
[Sponsor Break]
Bob Zadek: Welcome back to the Bob Zadek Show, the longest-running live libertarian talk radio show in California and around the country. Thanks so much for listening this morning to my conversation with Professor Richard Epstein. Professor Epstein is a law professor at New York University School of Law. He writes and participates in a blog called Defining Ideas, a must-read if you will. He is associated also with the Hoover Institution and with the University of Chicago. Richard, thank you again for joining us this Sunday morning.
Now, we mentioned some topics that are somewhat familiar to us, may not be so familiar to our audience. We talked about Title VII and Title IX of the federal Civil Rights Act. We discussed the fact that the issue or the concept of sexual harassment became associated with and an extension of sexual discrimination, although the leap is not totally natural. But we are past that and quite comfortable with that. Nobody is especially offended by that because of the good that comes from policing sexual harassment, I dare say.
But that has become now, or by dint of its evolution, it became another—and there’s nothing pejorative—another civil right, and therefore comes within the protection of the Office of Civil Rights, the OCR. Now tell us about, Richard, how Title VII became enforced and what has been the role of the federal government. So we start with the Civil Rights Act, and then we end up with it being enforced by a federal civil rights infrastructure.
Richard Epstein: Okay, well look, there are two agencies here: the EEOC enforces Title VII on employment, and the Office of Civil Rights enforces Title IX on discrimination in universities and in schools. The school part of this cannot be ignored because certainly when you have high school students and so forth, some of these issues come up.
And what one has to do is to go back to the decisions which said, “Yes, sexual harassment can be something for which a firm could be held accountable.” And then the question came: under what circumstances do you impute the wrong of any individual employee against another employee to the firm or to the university that hired them? And one could make a perfectly credible argument to the effect that sometimes the harassment that takes place is prohibited and unauthorized by the employer, who himself is horrified about the result that takes place in this case because it means bad employees are ruining their business for their own private advantage, and they certainly want to take steps to stop it.
So in dealing with these particular cases, the notion became quite prevalent that you could mitigate liability that you would otherwise face for your employees if it turned out that you had a program in place that was designed to detect and to correct various forms of sexual harassment before they occurred. If in fact you then have these two administrative agencies, the transformation that takes place is that what used to be thought of as a mitigating event or action or circumstance in an individual case of sexual harassment, what turns out is they now become requirements.
The 2011 “Dear Colleague” Letter and Campus Due Process [29:30]
Richard Epstein: So what the agencies do when they prepare administrative rulings on this, they announce that “We hereby require that you do this in order to deal with sexual harassment.” And the most conspicuous version of this is the “Dear Colleague” letter which came out in 2011 from the Obama administration, in which what they did is they basically required by way of an administrative guidance—the concept that you referred to a moment ago—that the entire set of procedures that universities have in order to deal with sexual harassment have to follow a detailed protocol that is put together by the Office of Civil Rights.
And this would change the way in which cases are heard. It would require that, for example, that people not be cross-examined when they make allegations; that the burden of proof to prove sexual harassment was not by clear and convincing evidence, but only by a bare preponderance of the evidence. So that you have these major transformations that were forced upon universities. Some of them like it, some of them do not. That particular guidance has been suspended, as I’ve mentioned, but in the interim, these vast establishments to deal with this situation come up.
And there is a concern on the part of many people that the way these tribunals operate is in fact an affront to principles of due process, and that given the ease by which the allegations can then be made and the great difficulty in defending against them, that these cases have—too many false positives come up, and there are many people whose lives are ruined by false charges. They’re driven out of one university, they can’t go into another. The same thing with employment. And so the battle is now fought as much about this sort of administrative structure. This is not a battle about the question if you have an identified case of serious sexual harassment or rape or something of the sort that they’re correct. The issue is how do you deal with the possibility of error and with the demands and complications of trying to defend these particular cases.
Bob Zadek: Just to add a little bit, if I may, the significance of what Richard referred to as the “Dear Colleague” letter in 2011, Obama administration—the significance is administrative agencies, and I have spoken often on this show about what I and many others fear is administrative overreach, the extension of the so-called administrative state. And with regard to administrative agencies, there are procedures, rulemaking procedures when new rules have to be put out for commentary, they have to have hearings, and there’s a process.
The “Dear Colleague” letter that Richard referred to was a letter. It’s a “Dear Colleague” letter because that’s how it was addressed. It was simply a letter. It was not a rule. It was a letter sent to colleges and universities who receive federal funds. And it said, “Dear Colleague, we think you must do the following.” Now, that letter could not, by its terms, compel colleges and universities to do anything because it wasn’t—it was just a letter. It was guidance. It was “for your information, here’s what we think about something.” But when you get a letter from an agency which is dispensing oodles of money to you, that letter gets a little more attention than a flyer advertising a new product. So the letter de facto had the force of law, and universities then changed their behavior somewhat profoundly. All of this was a little bit sub rosa; they just did it. And the “Dear Colleague” letter said, “You should do the following.” Well, that sounds pretty compulsory to me, an air of compulsion. So by a “Dear Colleague” letter, the universities were told by their federal regulatory agency that dispensed money to them, “Unless you do the following, your federal grants might be in question.” And the profound change—I’m sorry, go ahead, Richard.
Richard Epstein: Yeah, that’s exactly right. But let’s go back and sort of say what the standard procedures used to be. Administrative law has formal and informal processes to deal with various kinds of questions. And there’s nobody who’s ever doubted the use of a guidance to reduce uncertainty in certain kinds of cases. So you have a statute which says you have to file certain papers, and what the guidance does is says, “Please use the following form. These are the headings, these are the sections, this is the office in which you have to file them,” and so forth. And businesses by and large like guidance letters to the extent that they reduce uncertainty and they don’t impose additional obligations.
And so nobody wants to get rid of the guidance as such. But what happens is, starting around 1995 or so, first actually with the Food and Drug Administration and then carried over to this area, all of a sudden the guidance had a rather different tone associated with it. Is what the government said in many cases is, “If you’re going to get yourself money”—this is in the sexual harassment area—“your grants may be in danger unless you set up administrative tribunals which follow the following rules in order to deal with these kinds of cases.”
Now, you do not have to follow this because it is not a law. You don’t have notice and comment, so the thing is done only by administrators without any political constraint associated with it. But the simple threat that somebody will initiate an action to pull back the grant is very different and much more powerful than the threat that “If you don’t do something, we’re going to sue you for that particular thing,” because with the grant, if you’re talking about a university and you have a couple hundred million dollars in grants in your biological and medical science division, and you don’t have this sexual harassment program under control, and they pull the whole thing, it’s suicidal.
If in the employment context the government says, “We’ll sue you,” they say, “Well, we’ll fight you because we’re not going to lose our entire livelihood.” So the use of the guidance in one context is much more powerful than it is in the other. And there was no political check against it. And if you went to the government agency and said, “You know, it’s only a guidance,” the guidance made it very clear: “You may not be bound by this, but everybody who works inside the agency is going to be bound by this.” So you’re a university, and you have to ask yourself: what are the odds of winning a case that make it worthwhile for you to risk losing hundreds of millions of dollars everywhere else?
The Impact of Quasi-Criminal Proceedings [36:00]
Richard Epstein: And so most universities essentially, before the guidance letter came out, had a kind of an amalgam procedure, somewhere between a civil procedure and a criminal procedure. Why is it that you do this as something in between? Because this is not an ordinary civil case where somebody pays money. This is the kind of case where if in fact you are found guilty of harassment, you are branded for life. Expulsion from the university could follow. The ability to reestablish a career somewhere else is going to be impossible. You may well lose professional licenses or the ability to practice medicine or law or any other kind of occupation. So the consequences are very, very heavy.
But they’re not throwing you in jail. So what they did is they kind of split the difference. And that’s why they had the standard of clear and convincing evidence, which is less than beyond a reasonable doubt and more than a preponderance of evidence. But when the guidance came out, it said it’s a bare preponderance of evidence, which means in most of the sexual harassment cases that happen on campus, where it’s a “he said, she said” type of operation—he said that there was consent, she says that there was not; it’s done afterwards; somebody may have had a conversation with one of her roommates after the thing, and you don’t know what that says and so forth—if it’s a “he said, she said” thing under a clear and convincing evidence, the case dies. Under a bare preponderance of evidence standard, it’s anybody’s guess as to which way it will come out.
So what makes the sexual harassment cases of individuals in universities so difficult is that there’s always been sex in the background beforehand. A couple may have had relations at a previous time. She may have initiated it this time and then said to stop. And you’re sitting there on the outside trying to figure out how you adjudicate that. And the older view said, “If a case is that difficult, we’re not going to ignore it. We’re just not going to use it as an expulsion device.” And what therefore happens is you sit down, you try to talk to both of the students, either separately or together, in order to smooth over what is a very difficult patch. And then incrementally you try to make adjustments in the various rules in the universities so as to prevent these things from happening.
But the moment the Civil Rights Office came in, the whole balance of power took place there. And I can recall being on a panel discussing this issue in which the defenders of the current rule said, “A woman whose sexual harassment claim is wrongly rejected suffers grievous harm, just the way the fellow who’s wrongly convicted suffers grievous psychological harm. And since the two harms are about equal, what we ought to do is therefore have only a preponderance of evidence standard.”
This misses, A, the point of the enormous uncertainty that’s now brought into the system. And more importantly, I’ve actually worked on some of these cases. And what you have to understand is once there’s a finding that is associated with sexual harassment, then if you’re lucky, you’re suspended for a year; you could be expelled from the university. If, for example, you’re a foreign student—and I’ve seen these cases arise—what happens is you may lose your visa. And if you lose your visa, you’re going to have to go back home again. So the collateral consequences of a guilty finding are administratively and publicly enforced. It’s not just the question of psychological losses; it’s that you have to now go through all sorts of other procedures.
And the response of many people in these cases is you cannot allow this to happen. What makes it even worse is sometimes you see procedures—not only do you not have cross-examination, but there’s also a risk that an executive enforcing some of these statutes will put on penalties that even the victim did not request. There are many of these cases where somebody says, “Look, we’ve done this, I think we’ve worked it out, it’s fine,” and then all of a sudden the administrators decide to take it one step further.
So there is in the universities a real difficulty here. When you look to the other side on employment, it’s also complicated in these cases, but the dynamics are somewhat different. It is widely understood, though not widely stated, that if a woman who is an active part of her career makes a strong claim that she has been guilty of sex discrimination and so forth, what typically happens—these are done after somebody has been fired or demoted, usually fired—and it’s going to be extremely difficult to get yourself another job because no firm wants to hire a lawsuit. And so some of these cases essentially take a long time.
And what you typically discover is that many of them are brought only after somebody has retired. And there was a big question in the so-called Lilly Ledbetter case as to whether or not you could bring a statute of limitations against one of these cases that was charged, you know, 20 years ago. The case held yes, it had to be brought when it was accrued. And the new statutes essentially give you this very long time horizon, so you could bring it much later when it’s extremely difficult to organize a defense, particularly if the firm is being held liable for an employee who is no longer been around.
It’s also the case now in the employment context that if there is a dismissal, sometimes a sexual harassment claim is a kind of an automatic response to what’s going on. And it’s also the case, to give yet another variation on the problem, that if you have anybody going to a Christmas party and somebody gets a little bit handy or a little bit obnoxious and so forth when alcohol is served, it’s going to come back and haunt everybody in the transaction should there be a promotion or a dismissal. So today in the employment context, it is very common to see sexual harassment claims being added into sex discrimination cases based on, you know, just lack of ability or biases against women as being competent in certain areas. So that area has become extremely difficult as well. And I think it’s fair to say that in the last, oh, say three to five years, maybe seven years since the Obama letter of 2011, this issue, which was always present, has become much larger in both of these contexts.
Private Resolution vs. Federal Overreach [48:57]
Bob Zadek: What struck me in your discussion a second ago, when you explained the power of a “Dear Colleague” letter—a letter which is supposed to be a minor administrative event—it had enormous power. It was not a minor administrative event, and it had enormous power because it threatened to pull federal dollars. And Richard, I have had so many shows over the 11 years I’ve been on the air where at the root of everything is the federal government uses its strong economic power because it is such an excessively important part of our economy. It uses the withholding of federal dollars to impose its will upon universities, upon employers, upon states and localities. And so in a way, in a way, there is like this vague dotted line, but it is there, going way back to the income tax. If the federal government had not bestowed upon itself through the 16th Amendment the power to suck up all of this money to begin with, the “Dear Colleague” letter zillions of years later would not have the power that it had. So so much of this goes back to this crass level of federal dollars control the discussion.
Richard Epstein: Well, it turns out whenever the federal government has to dispense money, it can attach conditions to it. And the reason it’s so difficult is some conditions are certainly appropriate even if others are not. And so nobody would say, for example, that if you want to give a gift for cancer research, you can make sure that it’s not going to be used to support weekend cruises for these science researchers on the public expense. And then the issue is which of these things are appropriate and which are not.
And it’s the procedural stuff that makes it so troublesome when the government proposes it is oftentimes elementary conceptions of due process are not going to be allowed. So the inability, for example, to cross-examine an accuser in a case like this, which is generally regarded as a constitutional right in ordinary provisions to confront the witnesses against you, in these provisions is systematically denied. And in fact, in these provisions, even if it’s a very important kind of case under the guidances that they had, a student could not have a lawyer hired to speak for that particular student. You might be able to have somebody in the room.
You then have to worry about the composition of the panels that are taking place in these cases, and they tend to be very ad hoc. Unlike federal judges, they’re not confirmed. In some cases, universities do a terrific job in getting themselves the right, fair, and dispassionate panels. But in other cases, it turns out that exactly the opposite turns out to be true. And so given the looseness of the federal guidelines on how these panels are assembled and reviewed, the quality that takes place inside different universities can differ widely from good to bad. And so it’s very, very difficult to generalize. Some places run these procedures fairly well, some do not.
What makes it even more complicated is the peculiar way in which this thing is organized. One of the things that we know in virtually all of these particular cases is that universities, since they have to put these elaborate programs into effect, they tend to hire many people who were formerly associated with the OCR or the EEOC to run their programs. And these people in effect have a built-in incentive to keep the basic structure alive because they come from the audience offices that enforced it. And then what they do is they provide you individual guides on how it is that you can work within this particular framework. But they are not agents of change who will want to remove these procedures.
So, for example, in many universities today, even after the “Dear Colleague” letter of 2011 is no longer the guidance document, many universities have kept with their own procedures because there’s a strong internal support in order to keep them in place. And you know, my view about this—and I’m going to give you one thing by way of comparison—is these things are very, very serious quasi-criminal offenses, and the need to keep the standard protections against Star Chamber procedures is very much in play.
And years ago—this is now 30 years ago—I was tasked at the University of Chicago to organize the way in which we dealt with allegations of academic fraud inside the administration. And the dominant practice beforehand had been one of sort of ad hoc adjustments by individual deans and department heads to the particular cases. And it turned out it had produced serious miscarriages of justice. And what we did is essentially reverse the procedures entirely and put together a system which resembled a kind of slimmed-down criminal trial. You had to have notice, charge, opportunity to speak, you had to be very careful in the way in which you appointed the panels, you had to be very careful in the way in which you’d administer the sanctions and so forth. And I think that these regular procedures turned out to do a great deal of good in these kinds of cases. And one would like to see the same kinds of protections given in some of these sexual harassment cases where it’s terribly traumatic.
I think also, in most cases both in the employment contract context and in the university context, the constant insistence that there be a judicial right has made it much harder for anybody to have what is often essential in cases of this sort, which is a pattern of informal adjustments so that what happens is when something goes awry, you sit down with people and try to straighten this thing out and do it relatively quietly instead of making it into a huge quasi-lawsuit. And once the procedures are available and somebody unilaterally can avail themselves of it, the ability to have these informal mechanisms of social control are harder to put into place. It’s not impossible. So again, if you’ve got a good administration inside a university or workplace that runs this particular program, they can do a very good job to avert many kinds of difficulties. But the legal environment makes it harder to do that and requires you to expend greater resources at greater peril before you can get yourselves into that relatively stable situation. So I think in effect as the stakes get higher, what you need to do is to have the processes more exact. And given the reputational ways in which these cases are attacked and the kind of skewed and stacked administrative procedures, you can see how it is that the push in both directions is very serious. Some of these cases are unpunished, and in other cases there’s false punishment. There’s a lot of uncertainty, which means I think when the stakes are so high, you have to spend more efforts to make sure that you get these decisions right. And even more important than that, perhaps, is to make sure that they could be resolved, if at all possible, in an informal proceeding so that it doesn’t produce lasting trauma and damages to the people who are involved in the situation.
Bob Zadek: Richard, a quick—we’re regretfully, as I always do with you, running out of time. I’d like to close with asking you to put on your economics hat and just comment very briefly on how efficiently the marketplace would replace or do a better job, as it did in the Weinstein case, and might it replace the federal infrastructure for sexual harassment, or is that Pollyanna, too inefficient, too imprecise? We only have a minute or two left.
Richard Epstein: Okay, well there are two kinds of markets. I think the reputational market is very erratic on these cases, particularly now where the allegation, even if it’s not verified, can produce very dramatic results. I think the market response that you’re looking for is once firms and universities are aware of this and they don’t have the federal club on their hands, I think in effect to keep the business going, they could develop internal procedures that could handle these things pretty well. And so generally speaking, when it comes to these issues, I am much more in favor of private resolution through private resolution processes than doing it the other way. I think that about labor disputes on unionization-type issues, salary and so forth. So that’s the area in which I would want to go. That is very heavily foreclosed so long as there’s a strong civil rights law in this area, and then universities trying to get the right balance are constantly struck with the fact that if they do something which doesn’t meet federal standards, they can be sued. So they can’t have the degree of flexibility that they need in order to respond to these very difficult kinds of questions. And so the recent decision by the Attorney General to cut back on the use of guidance documents for enforcement purposes, I think, are a welcome first step in that development. But what you need is not reputational sanctions of the broad variety in these cases; I think you need quasi-adjudicative processes that can work better than the ones we now have.
Bob Zadek: Thank you so much, Richard, for sharing your wisdom, your economics and legal wisdom on this very difficult subject in the news every day. For listeners who have an interest in this subject matter, I would refer you to earlier shows of mine. One was entitled “America: The Most Sexually Hypocritical Nation on Earth.” Another show you might be interested in is “Aren’t Men Entitled to Due Process on Campus?” That was a couple of years ago. A third show, a Sunday morning chat with the world’s worst mom. All of those will give you additional information on this subject. Thanks again to Professor Epstein for joining us this Sunday morning. This is Bob Zadek saying so long for now. I’ll be back next Sunday. Have a good weekend.