What follows is a guest post by Brian Soucek (UC Davis).
Two weeks after its false statements forced an ASA member to out herself as the philosopher who’d been sexually harassed at the last Annual Meeting, the ASA has finally apologized.
Oh wait…no it hasn’t. The ASA’s statement this week “acknowledge[s]” the call to do better; it “promise[s]” that the Officers and Trustees will “do our very best to ensure a productive environment in which all ASA members” (including, presumably, the harasser who had reportedly been given a spot on the upcoming Program) “can flourish”; and it “thanks[s]” members who have challenged it “to better express and promote … our deepest values.”
What the statement pointedly doesn’t do is acknowledge or apologize for the ASA’s false and damaging statements about Dr. Shelby Moser, in which it was claimed that she never filed a complaint and that the Board of Trustees received only hearsay reports of harassment at the Annual Meeting. (I refer to public statements of Officers and/or Trustees of the ASA as “statements of the ASA.”) This is a glaring and, to me, outrageous omission. What could possibly explain it?
The ASA’s official reason, as suggested in this week’s statement, is that its new policy on Discrimination, Harassment, and Respectful Behavior requires confidentiality.
That’s not true. All the new policy says is that the “Ombudsperson shall take all reasonable efforts to maintain in strict confidence the identity of individuals reporting an incident and the person or persons implicated in an incident.” In this case, there is no confidentiality left to “maintain” regarding the individual making the report. That train left the station when Dr. Moser publicly identified herself—again, solely in order to correct the ASA’s previous public misstatements about her case. The ASA’s refusal to correct or apologize publicly for its own disclosures now can hardly count as a “reasonable effort to maintain” confidentiality.
As a law professor, I suspect another consideration is at work. I assume the ASA consulted with legal counsel before issuing this statement. (My assumption was originally based on the bloodless tone of the ASA’s statement, but it’s now been confirmed by the ASA’s Secretary-Treasurer in a comment thread to a Facebook post.)
Lawyers are paid to assess an organization’s potential liability when it messes up, as the ASA has here. And I can imagine that some lawyers would advise their client against apologizing, just as we might be told not to admit fault after a car accident. If that happened here, however, the advice was deeply wrong. It is wrong morally: the ASA owes its member—our colleague—an apology for the harm it caused her. It is prudentially misguided: the ASA’s primary goal right now should be rebuilding trust with its members, who otherwise have little reason to place their faith in the almost completely non-transparent processes put in place under the new Harassment Policy. And it is stupid from a legal standpoint: all of the relevant facts that expose the ASA to potential liability are already out there. The ASA’s misstatements were made on Facebook for all to see. Dr. Moser and others know, and presumably have a paper trail documenting, exactly what complaints the ASA received. So an apology from the ASA adds absolutely nothing to the ASA’s legal exposure. Think of it this way: can you imagine that a jury who saw the misstatements and Dr. Moser’s original complaint (not to mention all the internal records and emails made available through discovery) would side with the ASA, but a jury who saw the misstatements, the original complaint, the emails, and a heartfelt apology, would suddenly vote to hold the ASA liable?
The ASA’s newfound and misplaced concern with confidentiality and the circle-the-wagons legalism of its response this week both suggest that its call for comments on the new Harassment Policy is urgently needed. To that end, here are a few thoughts on how the Policy needs to be reconsidered or reinterpreted:
- The Policy makes confidentiality an element of the initial complaint process, but it correctly makes no promise that the identity of the parties involved will never be revealed. Moreover, it provides no basis for using confidentiality as an excuse for covering up—or failing to acknowledge or apologize for—mistakes made by the ASA in dealing with harassment. The ASA needs to recognize this. Going forward, it needs to be clear that if the ASA says something false about a party to a discrimination complaint—whether the accuser or the accused—it will correct its false statement and apologize instead of hiding behind a free-floating duty of “confidentiality.”Similarly, it’s at least conceivable that the resolution of a particular case might involve the public disclosure of the harasser’s identity. Interpreting the Policy’s confidentiality requirement to preclude such an outcome would leave the ASA with only two choices: barring a harasser from all future events or exposing other future attendees to a harasser whose identity they don’t know—as the ASA was going to let happen in Toronto.
- Speaking of the resolution of harassment complaints: it is worth noting that the new Policy doesn’t actually say how this will happen. An Ad Hoc Committee is to take statements from both parties, determine whether harassment or discrimination occurred, and then furnish a report and recommend a sanction to the Secretary-Treasurer and President of the ASA. That’s where the Policy gives out. The Policy has nothing to say about what the Secretary-Treasurer and President are to do next. Are they bound by the Committee’s recommendation? Can they make up their own sanction, or decide to do nothing? Not only does the Policy fail to constrain the Officers’ actions, but it ensures that whatever they decide will be kept from public view. The Ad Hoc Committee and Trustees won’t even know. The only person who has to be told the resolution is the Ombudsperson, who is charged with compiling an anonymized annual report which only ASA officers can access in the course of their duties.
- My next suggestion is more controversial, and not as directly tied to the ASA’s failures of the last few weeks. The new policy protects against discrimination based on “an individual’s sex (including pregnancy), sexual orientation, gender identity and expression, race, ethnicity, color, religion, national origin, age, marital status, disability, body size, class, physical appearance, political perspective, or employment status.” I find the list overinclusive. As the song says, “One of these things is not like the others”: namely, political perspective. Some people, for example, take the political perspective that concerns about sexual harassment are overblown and the #MeToo movement is a hoax. This political perspective is denigrated, quite rightly, by the existence of the ASA’s own Policy—the very Policy that purports to eliminate “any discrimination” based on political perspectives. Unlike the other protected traits on the list, political perspectives are traits that we do, and should, sometimes try to overcome. We seek to change others’ political perspectives in ways that would be inappropriate, if not absurd, when it comes to race, gender, sexual orientation, or the other protected traits.This is a distinction that has come up repeatedly in the recent litigation in the United States over religious bakers, florists, and others who don’t want to provide services for same-sex weddings. A slippery-slope argument is offered: if business owners are forced to make cakes celebrating gay couples, will they also have to make swastika-shaped cakes, etc.? To this, the response is: no, because gender and sexual orientation, unlike political opinion, are protected categories under (much of) American antidiscrimation law. Including political opinion, as the ASA’s new Policy does, brings back these kinds of slippery slopes.
- Finally, what’s with all the all-caps legalism at the end of the Policy? There, the ASA’s Policy gets redescribed as a mere “STATEMENT,” one that “IS INFORMATIONAL ONLY AND IS NOT A CONTRACT.” And yet, just two pages earlier the Policy/Statement says that before any of us can renew as members or register for an ASA meeting, we must state that we have read and agreed to comply with the Policy. So is this a contract or not?Normally I’d ignore this kind of boilerplate, just like the signs at restaurants that say “We Reserve the Right to Refuse Serve to Anyone”—a ridiculous claim in places where refusing service on a protected ground is a crime, not a right. But I raise the point here because it shows the ASA again spouting, and hiding behind, poorly considered legalisms. Why, I have to wonder, is the ASA unwilling to treat its Policy as a contract? Why is it unwilling to pledge to follow its procedures and live up to its commitments?
The answer to those last questions, presumably, is: because its lawyers told them not to. It seems that’s also why the ASA refuses to apologize to Dr. Moser. If this was the legal advice the ASA received, it was misguided. But more importantly, the ASA needs to realize that its lawyers’ job is to asses risk; the job of the Officers and Trustees is to decide what level of risk is worth bearing. Minimizing legal exposure is not an organization’s only or highest goal. At this point, making things right with one of its members—and restoring trust with the rest of us—are far more imperative. These are the values that, as the ASA’s statement acknowledges, the organization still needs “to better express and promote.”
Notes on the Contributor
Brian Soucek is Professor of Law and Martin Luther King, Jr. Research Scholar at the University of California, Davis School of Law. He has a JD from Yale Law School and a Phd in Philosophy of Art from Columbia University. In addition to his work on aesthetics in law Brian’s research on antidiscrimination law has been cited by two federal courts of appeals, the Equal Employment Opportunity Commission, and in three briefs filed this year in the U.S. Supreme Court. His most recent work on sexual harassment appeared in a joint collection he organized entitled #MeToo and the Future of Sexual Harassment Law, a collaboration between the Yale Law Journal and the Stanford Law Review.