National Public Voice
On Wednesday, Page Six broke news of a possible Charlie Rose-hosted television series focused on the stories of other powerful men exposed as harassers and sex criminals by #MeToo. Others such as Mario Batali, Louis C.K. and Matt Lauer are rumored to be plotting comebacks of their own. These efforts, and the coverage related to them, are important in thinking about the roles of exclusion and inclusion with regards to the #MeToo movement and the broad range of transitional justice tools potentially available for this moment.
Who is being excluded from the workplace and does it match who should be? In particular, I explore the narrative of the so-called career death penalty and consider the deployment of lustration as a mechanism to govern at least some of the high-profile harassers.
The Career Death Penalty Narrative Is Likely Empirically False
One of the concerns driving a #MeToo backlash is the fear that men will lose their careers, never to be restored. But even if that is a possible outcome, is that really a likely outcome for most, if any? While a few very prominent men accused of horrific acts, like Harvey Weinstein and Kevin Spacey, have not yet returned to their careers, others such as the aforementioned Charlie Rose, Louis C.K., and Matt Lauer seem to believe that a six-month hiatus is sufficient and are eager to return to public prominence. And of course, many named and shamed in the #MeToo era seem to have suffered no or minimal job-related consequences, such as Ben Affleck, who has a number of future acting and producing projects and Adam Venit, who has already completed a mere 30-day suspension and returned to work after groping Terry Crews.
Focusing on the short-term consequences for a few high profile, egregious actors may not tell us much about the likely long term consequences for most offenders. And if it does tell us something, it is that the offenders themselves believe the period of reckoning ought to be quite short indeed.
The Career Death Penalty Narrative Generates New Harms to Women
While concerns about due process in the workplace are both appropriate and difficult to resolve to the satisfaction of all parties involved, the emphasis on possibly disproportionate consequences for men may encourage the creation of an additional set of harms on women in the workplace. Tony Robbins spoke for many when he suggested (and implicitly endorsed) the notion that men are refusing to hire women for fear either that they or someone in their employ will in fact harass these women or that men will be unjustly accused of harassing them.
This underlying concern motivating such behavior has been borne out in a lean-in study showing that the number of male managers who are uncomfortable working alone with a woman has doubled since #MeToo and approximately 1 in 6 male managers are now uncomfortable mentoring women. Giving outsized attention to the “plight” of the few men who suffer significant career consequences may reinforce this cycle when it is less visible women who are actually bearing most of the job-related costs. As men mistakenly believe that minor infractions or false accusations are likely to result in the end of their career, they are incentivized to isolate women rather than restructure the workplace or improve corporate culture or engage in bystander interventions. In addition to future costs on women in the workplace, some women responsible for bringing down their harassers are already facing additional employment barriers and finding it difficult to restart their stalled careers.
Any conversation centered on the harms to men who have engaged in harassment and/or criminal acts must be very careful not to lose sight of the impacts of such a conversation on the underlying victims. Equal attention must be paid on how to structure the workplace and change the culture to encourage hiring, mentoring, and promoting women in the workplace as well as enforcing protections and disincentivizing retaliation against those who choose to come forward.
As Lindsay Zoladz so eloquently wrote: “To welcome someone like C.K. or Batali back into the fold not six months after these accusations broke is to intimidate other victims from speaking out, because it will make them think their stories don’t matter, or that the power granted to them by the #MeToo movement was just a temporary spell. To write about them sympathetically, to give them more ink than the names and achievements of their accusers, to run headlinessuggesting a “likely” comeback, is to participate in the very culture that allowed these men to behave badly in the first place. It is a failure to imagine a different story, a better world.”
Career Death Penalty May Sometimes Be an Appropriate Exercise of Transitional Justice
But what might that different story, that better world look like? Time will tell how many high-profile or other offenders will face criminal or other legal sanctions. While many laud the conviction of Bill Cosby, I suspect that convictions for other high-profile offenders will be a long time coming if they come at all. But the inability or unwillingness of the state to mete out punishments leaves space for the public sector to express its condemnation of such behavior in the form of lustration.
As my co-authors and I have written, the current moment bears some important resemblances to those of transitional societies. And one of the way transitional societies have restructured themselves and signaled a departure from the past is by lustration, a process of purging or vetting individuals responsible for abuses of the state. For instance, the Czech Republic adopted a lustration system based on dismissals; Hungary sought to actively and publicly expose individuals; and Poland allowed individuals to come forward, answer questions about their misdoings and only if their answers were found to be truthful, were they allowed to hold a public office. Such lustration practices are designed not just to shame the individuals, but also increase collective trust in new state institutions.
Obviously, the setting of #MeToo and Time’s Up are different from those of post-Soviet societies—advocates for reform here are not calling for a new state, but these movements and this contemporary moment do share with transitional societies an awareness that certain harms are pervasive and structural and call for the reshaping of individuals’ relationships with the major public and private institutions within society. Having some form of private sector lustration can allow disparate and troubled industries such as Hollywood, venture capital, and technology to address high-level offenders and enablers by either permanently excluding them from positions of power or requiring a public accounting of their misdeeds. As others have noted, perhaps those high-profile and powerful individuals who have engaged in harassment no longer need serve as cultural or economic arbiters.
Of course, the implementation of private lustration programs raises a number of difficulties and concerns and I only raise a few of them here. Although industries are more diffuse than government, licensing or other professional accreditation organizations might serve this gatekeeper function, particularly when membership or licensing is essential to employment in a given industry. Should industries choose to take up this suggestion to lustrate the worst offenders and enablers, due process protections for a program with these sorts of high stake impacts are certainly appropriate. When a possible career death penalty is truly in the offing, designers must be very careful not to replicate the excesses of post-World War II purges or the 1950s blacklistings. But for those institutions deeply implicated in pervasive criminal behavior and coverups, such as USA Gymnastics, the United States Olympic Committee and Michigan State University, lustration provides a tool to publicly signal their commitment to a different story, to a better world.
This sort of public reckoning strikes me as more productive than rewarding Charlie Rose with a TV series and allowing other offenders to perform their atonement. At the very least, private lustration would provide space for questioning by those other than someone who is himself a wrongdoer. It also has a truth-seeking function that Charlie Rose’s atonement series seems unlikely to embody. All that said, these are preliminary musings and imagining a functional lustration process requires a deep dive into both history and specific industry settings.
POSTED IN: HUMAN RIGHTS, INJURY LAW
TAGS: LEGAL, LUSTRATION, METOO, SEXUAL HARASSMENT