Sexual harassers have no right to due process at work
Dec 20, 2017 at 3:00 PM
Firing an accused sexual harasser is a business decision, not a legal one.
In his Dec. 20 commentary “#MeToo movement goes too far,” Michael Cromwell argued that high-visibility persons accused of various acts of sexual misconduct had lost their jobs without “due process.” That argument is misleading and wrong on its face.
Due process is a central part of our justice system. The government (i.e. the courts) will not sanction a person accused of wrongdoing without giving that person opportunity to defend himself or herself, and without making the accuser prove their allegations.
The men mentioned in the piece were sanctioned by their employers, not the government. Generally, employment in the United States is “at will.” Your employer can fire you for almost any reason, or no reason, usually without notice. Generally, there is no right to due process on the job.
Many businesses adopt the trappings of due process. Doing so is good for the business’ relationship with its workers, and can be a useful tool in resolving workplace conflict. But check your employee handbook — there is probably a disclaimer that it creates no contractual rights or obligations.
Business leaders have an obligation to their investors to produce profits. Certain business leaders decided the cost of tolerating alleged sexual misconduct by certain prominent employees was an acceptable cost of doing business (even when the allegations were credible enough to justify paying significant settlements). They do not have an obligation to give “due process” to workers.
I understand #MeToo to be a social movement that is changing society’s norms on what is acceptable sexual behavior, especially by persons in a position of power or privilege at work, and recognizing the gravity of violating those norms (many, if not most, of which are already well established, but taken too lightly).
One result of the change is the perceived cost for a business to tolerate allegations of sexual misconduct by any employee has eclipsed the perceived value of even high profile employees.
Mr. Cromwell could advocate for new law creating broad due process rights for employees in the workplace. I would disagree with that position, but it would be a fair argument. He could also call for a cooling of public opinion, or offer a nuanced critique, which would have my attention. Instead, he dismisses #MeToo as a “witch hunt” that violates illusionary due process rights of employees.
The firings of the accused men were not acts of justice or injustice, and due process does not enter into it. The firings of these men were business decisions.