Why and How #MeToo Must Incorporate Due Process

WASHINGTON - Dec. 19, 2017 - PRLog -- Although the fledgling #MeToo movement has achieved phenomenally rapid success, failure to incorporate any elements of due process or even fairness has triggered cries of "sexual McCarthyism" and worse which, unless corrected, could lead to an ever growing backlash which might hobble this important social phenomena, says public interest law professor John Banzhaf.

       Fortunately, it should be possible to bring order out of the chaos by using well established techniques from due process, says Banzhaf.

        Due process applies only to governmental bodies or decisions, but courts are increasing ruling under a variety of legal theories that even private entities cannot be completely arbitrary in terminating employment, and must provide some procedural protections or risk reversal in the courts.

        Moreover, a growing number of columnists, newspapers, and other influential voices are already crying out against unprincipled firings based on allegations - likening them to "witch trials," "sexual McCarthyism," "hysteria," and worse  - objections which they claim are already leading to a backlash which could limit or otherwise harm this important new movement in the long run.

        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 before an impartial decision maker.

        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 impossible.

        Such fair proceedings may of course require some time to complete, 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 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 his actions were 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 star 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 star'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 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 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.

        An 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, an automobile 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 for years.

        Yes, of course women who come forward to make accusations of sexual improprieties, often at great risk to themselves and their careers, should be believed, at least in the sense that their complaints should be given weight in the absence of any contradictory evidence.  But there have been many situations in which it was later authoritatively determined that they did not tell the truth, or made a claim which was at least misleading.

        In situations where the respondent is rich and/or well known, this may happen with somewhat greater frequency because women may be tempted by a desire for a financial settlement, some publicity, etc.

http://banzhaf.net/ jbanzhaf3ATgmail.com  @profbanzhaf