Evaluating #MeToo Cases: Part 1

Evaluating #MeToo Cases

My Perspective as a Male Employment Lawyer

Recently, the Internet and media were ablaze about the so-called #MeToo movement. For the most part, this hashtag gave voice to women claiming past sexual harassment. While the movement has garnered much sympathy, it has also invited pushback and skepticism. This is my take, as a male and lawyer, who has handled both sides of these cases.

First, I’ve seen enough to know that harassment and retaliation in the workplace is real. I have sifted through evidence of lewd notes, emails and photographs sent by alleged harassers.  I’ve spoken to credible witnesses corroborating hostile work environments. Generalizations are inappropriate, but so is ignoring harassment that takes place.

I’ve never been a victim of such misconduct. As a male and lawyer with my share of diversity and sensitivity training, I’ll still admit I may see situations differently. There’s a fundamental difference between the sexes at a perceptual level. The variation on this theme is the blinders we all wear vis a vis other races, religions, national origins, etc.

 

Some, of course, have politicized the #MeToo Movement – not just proponents, but opponents too. I recently saw a social-media post claiming that it was all a “liberal/Muslim plot.” The truth is, discrimination and harassment are neither a liberal or conservative “thing,” but rather a human failing. For every conservative villain, there’s a Harvey Weinstein (and some would say a Bill Clinton).

The primary problem some have with the #MeToo Movement can be encapsulated in the question: “Why are you coming forward now?” Some detached objectivity would help matters here. From a victim’s standpoint, there are road blocks discouraging them from coming forward in a timely manner. For instance, why complain if the perpetrator is the CEO of the company? Do you really think a subordinate is going to discipline the boss? Additionally, many legitimately fear retaliation. Still further, many don’t realize that courts, at least in the past, have made it quite difficult to state a sexual harassment case. You’d be stunned to know the level of misconduct that’s fallen short in judicial eyes.

Nonetheless, I’m not blind to the depravity of pseudo victims. Years ago, I remember intaking a defense case with claims of sexual harassment by a manager at a company party. At our initial meeting, my client handed me a videotape taken by another partygoer showing my client passed out on a lounge chair and the so-called “victim” of harassment on top of him in a compromising position. All it took was sending my opposing counsel a copy of that tape to make the case go away. There are both legitimate cases and instances of full-blown fraud.

And that to me is the point. It’s not always black and white. Sexual harassment is real, but it cannot always be presumed. The #MeToo Movement served the valuable purpose of igniting a dialogue between genders, management and employees. Going forward, a mix of sensitivity, objectivity and common sense would serve everyone best.

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