Sexual Harrassment: Beyond Being Against It

Few issues have stirred up politics, business, entertainment, or general culture like sexual harassment has recently.  The #MeToo movement sprang up after sexual misconduct revelations against Hollywood mogul Harvey Weinstein.  Allegations followed against television hosts Matt Lauer and Charlie Rose, Minnesota Senator Al Franken, Michigan Congressman John Conyers, and Alabama senatorial candidate Roy Moore.  Two Presidential aides, speechwriter David Sorensen and Staff Secretary Rob Porter, departed the White House after their former wives charged them with domestic violence.  Meantime, #MeToo gathered momentum as actresses wore black to events like the Golden Globe Awards ceremony in support of the movement, which encourages women to come forward and report incidents of sexual harassment.

No woman or man should have to endure unwanted sexual advances to get a part in a film, work in a bakery or a congressional office, pursue an educational opportunity, or serve in the military.  Hopefully, we can agree on that basic premise.  We state unequivocally our intolerance for any form of sexual harassment.  

Anything past that simple statement, however, puts us in line for sociological, political, and legal debates about (1) the definition of sexual harassment; (2) the appropriate forums for sexual harassment victims, that is where do we decide the fate of alleged harassers; (3) what differences do or don’t exist between sexual bad acts; and (4) due process rights for alleged perpetrators.  Despite the complexity, we’ll dive briefly into each topic as a prelude to further discussion in coming weeks and months. 

What is it, anyway?

The Equal Employment Opportunity Commission (EEOC) defines workplace sexual harassment as “unwanted sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature.” The Commission notes that unlawful conduct creates “an intimidating, hostile, or offensive work environment.”  Some sexual harassment claims turn on proving a quid pro quo in which continued employment, career path, and/or pay depended on willingness to submit to sexual demands.   

The EEOC scheme is good as far as it goes, but it doesn’t cover every situation.  Men who make unwanted advances on dates, for example, may not have job-related power over women.  The Catholic Church’s sex scandals involving priests and children don’t fit into the EEOC paradigm.  The workplace definition doesn’t work in all instances, the reason Henry argues we should focus on sexual misconduct.  Sexual harassment, for example, seems too tame a term for the allegations against Moore.  Though he denied the charges, many voters apparently believed the assertion he molested young women, some mere children when he allegedly initiated intimate contact with them.

Who decides?    

In the Rob Porter case, White House Chief of Staff John Kelly privately encouraged Porter to ride out the storm and even issued a public statement declaring him a “man of integrity.” Kelly, however, likely knew of the allegations for more than a year.  Only after photos surfaced showing one of Porter’s alleged victims with a black eye did Kelly back off support for Porter.  Utah Senator Orrin Hatch, apparently without knowledge of the facts, contended Porter shouldn’t quit and labeled his accusers “morally bankrupt.”

The Porter, Moore, and Franken cases raise the question of how to resolve sexual harassment complaints involving office holders.  Is the voting booth enough, as in Moore’s case?  What role should disciplinary mechanisms of legislative bodies play?  That might have been the vehicle in Franken’s case until he resigned under pressure from some of his Democratic colleagues perhaps seeking political advantage in the public relations war.  How much does it matter if the alleged transgressions occurred before being elected to office, as in the case of President Trump?  How do we balance the rights of the alleged victim and the electorate’s freedom to elect who it wants, despite harassment allegations? Right now, like most people sorting this out, we have more questions than answers. 
             

Are all Sexual Bad Acts Equally Bad?

Kirsten Gillibrand (D-NY), a Senate leader on sexual harassment issues, recently declined to distinguish between sexual harassment and sexual assault saying, a line must be drawn and “none of it is okay.”  The implications of her view led Bill Maher, host of "Real Time with Bill Maher" to push back.  He said, “Justice requires weighing things.  That’s why Lady Justice is holding a scale and not a sawed-off shotgun,” adding, “I’m down with #MeToo.  I’m not down with #MeMcCarthryism.”

Senator Gillibrand’s position appears to make any number of sexist acts someone finds offensive worthy of scorn.  She said, “None of it is okay.” In the interest of not trying to take on too much right now, we’ll let Gillibrand and Maher speak for themselves, but recognize that their conflict marks an important flashpoint in the debate.

Guilty Until Proven Innocent or Just Guilty

Related to the pushback point remains the question of what happens to people accused of sexual harassment?  Is the mere accusation of sexual harassment a death sentence for the alleged harasser’s professional life?  In the interest of encouraging women to come forward with their stories without fear of being disbelieved, should a presumption of guilt attach?  Or, do we follow the traditional presumption of innocence until proven guilty, as in every other criminal or quasi criminal matter? What process is due in sexual harassment situations?  What is fair?  
   

These points only scratch the surface on this issue.  We’ll have more to say later. Perhaps you have thoughts now – do share!

A Little Light Reading: Our Top Three Books on Understanding Race in America

The three of us read a lot because (1) we each enjoy it, (2) we think it essential to being informed citizens, and (3) it’s crucial to this enterprise.

Because we read as much as we do and because we spend so much time interacting with people about the things we care and write about here, friends and readers sometimes ask us what books we think will increase their understanding of the topics we discuss with them, especially race. We thought we’d offer some reading suggestions – a Top Three, if you will – recognizing our list isn’t gospel and others might present lists that would impart as much or more knowledge.

What Missed The List?

We’ll start by recognizing some great works that didn’t make our top three.

The New Jim Crow by Michelle Alexander garnered a great deal of attention during the 2016 campaign for its focus on mass incarceration.

James Baldwin’s Go Tell It on the Mountain and Ralph Ellison’s Invisible Man retain their places as classics, essential to understanding this issue.

Taylor Branch’s epic trilogy America in the King Years would make many such lists.

Master of the Senate, the third book in Robert Caro’s The Years of Lyndon Johnson series presents an excellent account of early legislative efforts on civil rights.

One friend reminded us that Colored People by Henry Louis Gates offers rare insight into the culture of black America outside the South as the civil rights era dawned.

The same friend extolled the virtues of Days of Grace, Arthur Ashe’s wonderful memoir about his experience as a black athlete in a white sport and as a black man in America.     

But, we have our favorites – three books we regard as critical to understanding where we stand with race in America today and how we got here.

Our Top Three

1. We suggest starting with The Warmth of Other Suns: The Epic Story of America’s Great Migration by Isabel Wilkerson.

Wilkerson, an African American woman, is a Pulitzer Prize-winning journalist and it shows in her compelling narrative about the twentieth-century African-American migration out of the Jim Crow South to the North and West. She gives us the story through the experiences of real people: a Florida orange picker who finds a new life in New York, yet still must cope with returning regularly to the segregated South in his job as a railroad porter; a Mississippi sharecropping family that moved to the Midwest only to confront the restrictive ethnic zoning rampant in the urban politics of Chicago and Milwaukee. A doctor from Louisiana who drove across the desert to resettle in California. The black exodus from the South makes up an important part of American history and Wilkerson tells the story with verve and compassion.

2. The Half Has Never Been Told: Slavery and the Making of American Capitalism by Edward Baptist

The Half Has Never Been Told explains the role slavery played in America’s development as a commercial powerhouse in the world economy. Along the way, it explodes many myths, most significant among them the idea the United States became a significant player on the world economic stage after the civil war ended slavery.

In this exhaustively researched book, Baptist, a white son of the South, shows how slavery and the cotton-based southern economy made the United States a world commercial player well before the war. Warning: While the book is profoundly informative, it is not comfortable to read. Baptist, a Cornell University professor, comes at this topic with data and analysis. Narrative takes a back seat.

Getting through The Half Has Never Been Told requires a certain level of compassion and willingness to vicariously experience human suffering. It also requires a strong stomach. Baptist details many of slavery’s horrors. Few “benevolent” slaveholders, if any lived, made the cut in this book. We can’t overestimate the importance of The Half Has Never Been Told to understanding the real history of slavery in America. Rob saw it as significant enough to give a copy to each of his children with the admonition that they read it, “even if you don’t get to it until you’re on your death bed.”

3. The Color of Law: A Forgotten History of How Our Government Segregated America by Richard Rothstein.

Anyone clinging to the notion that the economic inequality plaguing America based on race occurred by accident must confront some unpleasant, but documented, truths in this book. Relying on government documents and independent studies, Rothstein, a senior fellow at the NAACP Legal Defense Fund and the Haas Institute at University of California, Berkeley, details how court decisions, legislative actions, executive branch policies, and administrative actions drove blacks into segregated neighborhoods, kept white neighborhoods white, and in the process, assured that black wealth would not grow through homeownership, a major way other Americans accumulated assets. This book doesn’t make for comfortable reading either, largely because of the offensiveness of the deliberate acts of racial discrimination it describes.

As we said, there are other books. We think these three present a good starting place.

What are some of your suggestions?

An American Political Agenda for 2018 and 2020: Six Suggestions for the Upcoming Election Cycles: Part 6

We come now to the final point in our list of six issues (read parts one, two, three, four, and five) we want congressional and presidential candidates to focus on in 2018 and 2020: an aggressive push for social justice.

America needs this, especially now, because the Trump years represent a 21st Century low point in the nation’s commitment to equality. We didn’t think, in our sunset years, fighting the civil rights battle all over would become necessary. 

That seems required now, given the ugly underbelly of America’s social fabric unearthed by Trump’s presidency. This underbelly consists of those who see America as the birthright of only white, English speaking Christians and those who do not believe the constitution’s guarantee of equal protection applies to people of other faiths (or no faith), women,  gays, transgender individuals, and people of color. The next president, with help from Congress, must reestablish the moral authority of the office on the issue of fundamental fairness to all Americans.

Racial Equity

Trump’s sins on race cover symbol and policy. Symbolically, we need only recall his statements equating white supremacists denouncing Jews with those protesting confederate monuments in Charlottesville, Virginia. Before Trump, we wouldn’t have imagined a modern-day American president doing such a thing. Candidates in 2018 and 2020 must make clear during their campaigns that won’t happen while he or she holds office. No room exists for hedging, compromising, or equivocating. America needs a president, and members of Congress, with zero tolerance for bigotry who understand no equivalency exists between anti-Semitic and racist chants and protests against monuments that romanticize America’s history of chattel slavery.

  Statue of Robert E. Lee, commander of the Confederate States Army, in Lee Park in Charlottesville, Virginia (credit: CVille Dog via Wikimedia Commons)

However, Trump’s bad acts go beyond intemperate public statements. Administratively, his government has pulled back on the federal commitment to enforcing anti-discrimination laws and signaled how it disfavors civil rights enforcement. The Justice Department, for example, stopped using consent decrees as a tool for enforcing civil rights laws. Government agencies now limit the data they collect on civil rights violations and have reduced the size of their anti-discrimination staffs. For example, instead of cutting back, the Justice Department should step up its efforts in investigating and prosecuting hate crimes, as there has been a spike in them since Trump’s election.

Civil rights enforcement isn’t part of Trump’s plan. He appears not to believe in it and acts as if it doesn’t serve his political interests. He thinks, probably accurately, his base doesn’t want civil rights laws enforced. The next president must make civil rights part of his or her agenda. Civil rights laws remain the law of the land and every president must vigorously enforce them.

Equity for Sexual Minorities

Racial minorities aren’t faring well in the Trump world. Sexual minorities may fare worse. Trump’s announcement on Twitter that he’d ban transgender individuals from the military demonstrated his attitude. Court rulings and the decision by military leaders to bury the plan in the Pentagon review process stopped the idea for the moment. Trump put out the suggestion for blatantly political reasons – a bone thrown to the Christian right he must feed to keep under his ever-shrinking tent. Eliminating transgender people from the armed forces, however, potentially harms national security by limiting the military’s ability to recruit individuals with particular skills and may damage units that depend on transgender troops.

 Trump's original tweet from July 26, 2017 announcing his ban on transgender individuals in the military (Twitter.com)

As with racial equity, candidates for Congress and the Presidency need to make clear their commitment to gender equality and equity for sexual minorities, including lesbian, gay, bisexual, and transgender individuals. The force of American leadership in the world depends both on military and diplomatic strength and on moral authority as a democracy committed to equal rights for everyone. No room exists for fudging on this.  

Religious Pluralism

America, since its founding, has been a land of many religions and a land of many who profess allegiance to no religion. Our constitution assures the rights of all Americans to practice whatever religion they want or to practice no religion at all. With due respect to the principle of separation of church and state, we hope candidates for office in 2018 and 2020 will talk about and support religious pluralism. We hope they explicitly acknowledge that America recognizes no state religion and no religious test exists for holding office. We saw encouraging signs on this point in the 2017 off-year elections in which members of many religious groups won state and local races. Candidates can freely express their faith preference, as long as they recognize that every American enjoys the same right to practice their faith or to practice no faith at all.

So, there you have it – the six key issues we believe the 2018 and 2020 elections should turn on. As we commend them to you, we believe they’re worth repeating:

1. Restore the dignity of the office of President of the United States;

2. Reverse the toxic, divisive race and ethnicity baiting of the current president;

3. Address income inequality;

4. Develop a thoughtful, intelligent foreign policy that reflects American values 

and security interests and those of our allies;

5. Promote a domestic policy agenda that improves the lives of ordinary Americans; and

6. Renew the American commitment to social justice

It’s your turn – tell us what you think the focus of the 2018 and 2020 elections should be?            

G. Thomas Eisele: Judge, Mentor, Friend

Last month, an Arkansas federal judge died at 94, saddening many in and outside that state.  He had an enormous impact on our native state and on two of us personally. We’d be remiss if we didn’t pay tribute to his remarkable life.  

Garnett Thomas Eisele served as a judge in the Eastern District of Arkansas from 1970 until his 2011 retirement.  Before taking the bench, as an old-time moderate Republican, he played a major role in Winthrop Rockefeller’s gubernatorial campaigns and served as his legal advisor at $1 a year.  Richard Nixon appointed him to the bench and he swore off politics, believing judicial office required the reality and appearance of fairness.

Tributes have poured in since his death, noting his penchant for unpopular decisions in criminal, environmental, and civil rights cases.  For the two of us who knew him, his judicial record tells only part of the story.  He seemed larger than life because of his intellect, kindness, civility, and dedication to helping people realize their potential.

Henry Writes:

My mother believed everyone encounters people who enrich lives if we open ourselves to those chance meetings.  Judge Eisele confirmed her belief.  Just out of college and working for Governor Rockefeller, I met Tom Eisele.  Although incredibly busy as the Governor’s lawyer, he took the time to talk with, advise, and encourage this young college graduate.  When it came time to move on to my career, he encouraged me to attend law school.  He thought, for some reason, I’d do well in the law.

By the time I graduated from law school he’d become a federal judge. He hired me as a law clerk. The newspaper headline read:

“Negro Named as US Law Clerk.” My hiring made him the first federal judge in Arkansas to employ an African American clerk.  He let me know that though he recognized the significance of the hire, he chose me because of my record, writing ability, and the potential he saw in me to help him do the people's business.

Working with him gave me a daily opportunity to watch and engage his unparalleled attention to detail, his total belief in fairness and justice, and his complete conviction that the cases we handled belonged not to us but the litigants whose lives depended on the energy and intellectual honesty we brought to each case.
Though I’d committed to a two year clerkship with him, I got a chance to clerk for an Eighth Circuit Court of Appeals judge.  He said I couldn’t pass up such an opportunity.  He believed it significant that I’d become the first African American to clerk for a judge on that court, but he thought it just as important that the experience itself would serve me well for the rest of my career.  He believed I could make a difference. 

G. Thomas Eisele (credit: Arkansas Online)

Later, I was appointed Magistrate Judge in the Eastern District of Arkansas. I’m sure when the district judges chose from the lawyers presented them by a recommending committee, his strong, respected voice and his belief in me made a difference.  I became the first African American Magistrate Judge in a southern state.  I found challenge and reward in my 31 and a half years on that court, serving alongside Judge Eisele.  My mentor and wise advisor became my colleague and invaluable friend.  I treasure that friendship and the memory of our conversations.  Nothing I write could demonstrate his impact on my life.

He opened his courtroom, his mind, and his heart to all people.  I miss him.

Rob writes:
I knew Judge Eisele less well than Henry, but my experiences with him produced enormous respect and admiration.   When I lived in Little Rock in the 1970s, I often ran along Rebsamen Park Road, a straight, flat stretch that parallels the Arkansas River.  Occasionally, I’d find myself catching up to a shirtless man who never stopped smiling and who always had time to talk until I pushed ahead.  That man was Judge Eisele. 

Oh, I knew who he was.  Most of the regular runners along “the river,” as we called it, knew “the Judge,” who parked his old Mercedes on the eastern end of the route, ran west for about three miles, and returned.  I wasn’t a lawyer then, but he knew me from television.  As we plodded along, we talked sports or how I was doing with life.  Despite his position, he wasn’t dour, standoffish, or self-important.  He talked to me like a human being.

Years later, after I’d become a lawyer,  on a visit to Arkansas, I mentioned to Henry that I’d worked on a case, just decided by the Texas Supreme Court, on admissibility of scientific evidence.  He said Judge Eisele had a pending case involving that issue and he might want to know what I’d learned.  The Judge invited me to his office and we spent almost an hour talking about the ins and outs of that complex topic.  When I returned to Houston, as he’d asked, I sent his law clerks the briefs in my case.   I was astounded that he cared what I thought.

Finally, when we started this project, I needed background on Henry’s life before we met.  Henry said Judge Eisele heavily influenced his decision to attend law school.  He urged me to call him about it.  I dialed the number Henry gave me, expecting I’d have to fight my way through a palace guard of gatekeepers.  Judge Eisele answered the phone himself.  We talked for an hour, just two people discussing a mutual friend.  The world needs more people who approach life like he did.                                          

An American Political Agenda for 2018 and 2020: Six Suggestions for the Upcoming Election Cycles: Part 5

We’ve suggested four areas on which 2018 and 2020 candidates should focus for bringing America back from its current morass (Read Part 4 here).  We’ve written about restoring the dignity of the Presidency, promoting racial reconciliation, addressing income inequality, and formulating an intelligent foreign policy rooted in our values and the shared interests of the United States and its allies.

Now, we turn to the domestic agenda candidates for Congress and the White House should press if they want to improve the lives Americans lead.  We could propose an endless list of policies and programs, but we’ll limit the discussion to six areas the next few Congresses and the next President have to get right to make America truly great.

Public Education   
The three of us grew up and into the middle class through public education.  A strong America depends on a strong public education system.  Private schools, which not everyone can afford, have their place in American education, but a vibrant economy and a society in which people believe they can improve their lives depends on continuing investment in and a commitment to public education.  For America to remain a world leader the nation must produce a broadly educated citizenry. Public education remains the most proven vehicle for achieving that.  

Infrastructure   
Democrats and Republicans sort of agree on this.  At least both seem to understand the need for rebuilding crumbling roads and bridges and investing in navigation projects, airports, and other transportation facilities.  The disagreement lies in paying for it.  Candidate Trump claimed he would propose an infrastructure package.  His administration floated, but hasn’t pushed in Congress, a tax credit scheme that would mostly benefit Trump’s rich friends.  A meaningful infrastructure program requires putting significant federal dollars into the kinds of projects America once specialized in building.  Trump and Republicans often claim business tax cuts will pay for themselves by spurring economic growth. Historically, tax cut have not had that result.  They just increase the deficit.  Prior experience suggests Infrastructure spending, however, will pay for itself in jobs, lower public and private maintenance costs, and improvements in everyday life.  It’s time to quit talking about this and do something about it.

Affordable Housing   
Recent books like Richard Rothstein’s The Color of Law have emphasized the connection between housing policy and the country’s seemingly intractable economic and racial problems.  It seems important now to develop policies and programs that insure Americans of all races and ethnicities access to quality, affordable public and private housing.  This area of federal policy has stagnated in recent years under Democratic and Republican presidents.  The next group of people in charge, in Congress and in the White House, must renew the conversation about what programs and policies will give more Americans access to affordable housing while stimulating the construction industry.  The next Housing Secretary should understand and appreciate the nation’s history of socioeconomic and racial discrimination in housing and how local, state, and federal government policy, with the help of the building trades, contributed to the problem. Perhaps the next President can involve people like Professor Rothstein in selecting a HUD Secretary.

Immigration Reform   
Perhaps nothing causes as much emotional upset among Americans today as immigration policy. The issue brings to the surface the culture war over who determines domestic policy, illustrating the difference in a world in which people of color have a say in such decisions and the way the world once worked.  This issue divides the country in to red and blue.  Red America, generally, wants to punish undocumented immigrants and favors drastic measures, like a wall, to keep out immigrants from certain countries. Blue America, generally, wants a path to citizenship for undocumented immigrants here and opposes draconian border security measures.  The challenge lies in finding a sensible middle ground between those poles.  We favor a more welcoming policy toward immigrants.  Any comprehensive immigration reform proposal must provide a path to citizenship and border security that controls the flow of illegal immigrants.

Energy and Emissions Policy   
They go hand-in-hand.  We need more, not less, public investment in solar, wind, and other forms of clean, renewable energy.  These industries will produce more good jobs than we can save in the coal fields.  The global movement toward such energy sources won’t stop because of the Trump administration’s obsession with coal.  The clean energy train is pulling out of the station and the United States needs to get on board.     

Tax Policy   
The “tax reform” proposals now being rushed through Congress by Republicans come nowhere near the kind of tax policy we need to move our economy forward, give relief to those who really need it, and insure everyone pays his or her fair share. The “loopholes” being closed – deductions for state and local taxes, reduced ability to deduct interest on student loans, etc. – hurt middle class people, not the wealthy.  Meantime, too many ways still exist for corporations and wealthy individuals to hide taxable income offshore and in other ways that keep the tax system unfair.  The next Congress and the next President need to correct that situation.  Involving scholars and observers like former Labor Secretary Robert Reich and journalists Thomas Friedman and Michael Mandelbaum in the process wouldn’t hurt either.   

We could talk about lots of other things.  But, we think we’ve offered a good starting point.  

What do you think?