(CNSNews.com) - During a congressional hearing on sexual harassment and other workplace misconduct in the federal judiciary, a former law clerk for an appellate judge on the 9th Circuit Court of Appeals, told the Senate Judiciary Committee that the reason sexual harassment has been less tolerable in today’s workplace is because more women are speaking up, emboldened by the fact that more women are in positions of power than ever before.
Sen. John Kennedy (R-La.) asked what has changed from the days that former President Bill Clinton had a sexual relationship with a White House intern to now when sexual misconduct and harassment has been less tolerated and more publicly criticized and punished.
“I think we’ve decided as a society and a culture that we do not want to be a country of creepy old men or creepy young men for that matter. What has changed? I mean ...23 years ago, we had a 49-year-old president of the United States who had a sexual relationship with a 22-year-old intern,” Kennedy said, referring to Clinton’s affair with White House intern Monica Lewinsky.
“Some have described that as harassment. Some have said it was consensual. I don’t know, but I think we can agree the consequences today would be different. What’s changed? Have our attitude changed? Are people more willing to report the harassment? Are the pigs feeling guilty and feeling like they want to stop it and report their misconduct?” Kennedy asked of the hearing’s witnesses.
Jaime Santos, an associate with Goodwin Procter LLP, who led a group of current and former law clerks urging the judiciary to take action to prevent and address sexual harassment, said one of the reasons is that “women are speaking up.”
“We’ve inspired by women like Ruth Bader Ginsburg, like Senator Feinstein, like many of the women that have come before us, and we are starting to speak up. Secondly, I think that more women are in positions of power,” Santos testified.
“They’re starting to be in positions of power, and the more women you have who are serving as those powerful roles, the more those issues get raised, and the more they get addressed, which is why I urge this committee to look really carefully at the nominees who are being put into the judiciary. If 85 percent of the new nominees are white men, it’s not going to really create a lot of positive change,” she said.
“I agree with those points that Ms. Santos made,” said Jenny Yang, former chair of the U.S. Equal Employment Opportunity Commission, “and I would add to that that there is an ability now for a greater part of our public to understand what these problems are with technology and social media.
“It’s much easier for individuals to get their stories heard and for individuals to share information about common practices that may be experienced, so I think that helps heighten awareness,” Yang added.
Kennedy asked if there were “hierarchies” of harm and misconduct, to which Yang replied in the affirmative.
“Can you be a major league pig, a minor league pig, a sometimes pig? You’re still a pig, and are there gradations of harm that we should acknowledge?” Kennedy asked.
Yang said not only are there “different levels of harassment that can occur in a workplace,” but the punishment for those actions should be proportionate to that misconduct.
“There definitely are different levels of harassment that can occur in a workplace. Some are low level that may not be actionable under federal law but still make people uncomfortable and should be stopped because it can be a precursor to more serious harassment,” she said.
“It’s also important to have proportionate discipline. Often there is a message around zero tolerance, and it’s important that the organization makes very clear it will not tolerate harassment, but for every allegation of harassment, the appropriate remedy is not necessarily termination, so you do need to take into account the severity of the offense,” Yang added.
When asked how to decide which behavior is criminally actionable, a fireable offense, and which should be given a warning, Santos said, “I think that part of it has to do with intention.”
“When someone is intentionally demeaning someone, it’s much more serious, and training them is not going to particularly help, but I think the most important thing is that whatever those consequences are going to be, it needs to be clear to employees, because if employees, if law clerks, if others don’t know what the consequences might be of reporting misconduct, they’re not going to do it, ‘cause it’s not worth the risk,” Santos added.
Yang said a warning may be appropriate when someone makes an off-color joke that was unintentional, but when someone intentionally harasses someone, the consequences should be more severe.
“And within the organization, you can set out general parameters of the type of discipline that’s appropriate in response to certain kinds of misconduct. So a warning may be appropriate with an off-color joke that may have been unintentional, but where someone is more intentionally harassing an individual, more serious remedies may be necessary,” she said.