https://www.susanjfowler.com/blog/2017/5/20/five-things-tech...
1. End Forced Arbitration
This is the single most important thing
a company can do to prove to its employees
that it is dedicated to acting ethically,
legally, responsibly, and transparently.
https://www.reuters.com/article/us-usa-misconduct-agreements...
Some states already have laws restricting
confidentiality agreements that conceal "public
hazards," such as product defects or environmental
contamination.
The same reasoning could potentially be used to
invalidate non-disclosure agreements covering
allegations of sexual misconduct, lawyers say,
on the theory that some harassers could pose danger
to others if their conduct is not revealed.But eliminating the ability of parties to agree to a confidential settlement is a huge mistake.
It will result in victims getting less money. An allegation of harassment, without further evidence, is not going to fare well in court. Yet the accused might be willing to pay a settlement to put the matter to rest and avoid negative publicity. By prohibiting them from getting confidentiality in exchange for payment, you have removed their largest incentive to pay the accuser. Further, a publicized settlement will be taken as an admission of guilt, which is a further incentive to go to court.
And those accused, who may be innocent, are protected as well. They can avoid having their name smeared in the media, where they stand no chance of getting a fair hearing in the current climate.
Preventing sexual assaults is good for the public, publicizing cases of sexual assaults may well have a tendency to do that.
Based on your arguments above, I would come to the conclusion that NDAs on this should be banned. But I haven't thought enough about the topic to conclude that there aren't successful counter arguments.
Then why should it fare well in other contexts?
Other tech companies and tech culture in general should take note, and follow suit if they actually care about this issue. Executives and HR statements are nice to hear I suppose, but even better is actual change.
To the little people like us, take note from a different perspective: Watch for which companies are all talk and no action. Take action through which you choose to work for. If you don’t have a choice, do your best within a company to promote positive cultural change.
There are certain rights which now cannot renounce in many countries -- the right to sue someone [in court] for sexual harassment is one of them (or any criminal activity really).
These "Forced Arbitration" sound really odd TBH. I understand that businesses might want to settle things behind closed doors, but this sort of things sound like too much.
Companies don't do anything just because it's the right thing to do. Putting out a fire? Trying to kill a lawsuit? Perhaps the good ol' economical incentive? What have made Microsoft to lift a finger? And which finger?
I don't see any direct economic or legal upside for MS doing this. However they've now got a very positive NYT article on it and the associated positive PR, so there's certainly some economic benefit in the long term, even if it's impossible to measure.
Yes, you missed telemetry (which is impossible to disable) and unskippable updates.
Nadella's Microsoft is more hostile to their users than ever.
Most people with these sort of harassment cases will prefer to settle out of court as the process can be brutal - only very brave and often wealthy people will do this.
This is from direct experience as I have counselled people in cases of bullying.
"Mr. Smith of Microsoft said he first became aware of the Senate bill after meeting with Mr. Graham in Washington to discuss cybersecurity and immigration. Mr. Graham urged Microsoft to support the bill, Mr. Smith said."
Urged is likely a euphemism. There was probably a quid pro quo.
(I initially read it the same way you did.)
Does this mean I think any or all of the recent high-profile cases are innocent? Oh shit, wait, it doesn't matter what I think unless I'm on a jury or in a position to hire or fire the person who is accused.
It's easy to feel smugly righteous about a lot of these cases, but the reality is that it does matter if innocent people are caught up in the hysteria. I'm not quite sure when the media collectively decided that it was a good idea to promote abandoning the principle of "innocent until proven guilty," but the long-term consequences of this are likely to play out in very unexpected and ugly ways that will affect most or all of us in areas that have nothing to do with sexual harassment.
Imagine you’re in a dispute with someone over where your property line is drawn. If someone presents an affidavit attesting to facts that show the property line is actually five feet into what you thought was your yard, and you have no facts to the contrary, guess what: you’re losing summary judgment. Civil standards give the defendant a very thin benefit of the doubt. Your accuser’s story just has to be a hair more believable than the other person’s alibi.
Workplace harassment cases are emphatically not like criminal cases. A false negative (acquiting a guilty person) usually has no direct negative effect in most criminal cases. A murder victim doesn’t much care if the state incorrectly acquits her murderer. Workplace harassment is more like the land boundary case. Somebody gets the land; a false negative means one party has been wrongly deprived of her land while the other party had received an undeserved windfall. In a workplace, likewise, an accuser who is telling the truth but is not believed is wrongfully forced to either continue working with her harasser, or to give up valuable career opportunities. A false negative (failing to believe a truthful accuser), is pretty much as bad as a false positive.
My understanding is that it has college campuses hearing criminal cases.
(I'm British, and only learned about this yesterday.)
And there should be consistency and standards in media reporting of allegations, and for HR decisions.
When we are in the position of having to determine if someone did something wrong, and what to do about it, we are faced with the problem of determining what is just and administering justice. The same basic rules apply to us, because we have the same basic problem: not allowing the tribunal or committee or even the court of public opinion to become another source of injustice.
No, that's untrue. Innocent until proven guilty is only about the state's power to impose punishment. Innocent until proven guilty is used for even the most mild criminal offences where long term repercussions are unlikely.
A person's life can be destroyed in a civil trial where balance of probabilities, not beyond all reasonable doubt, is used. See all the parents who've been prevented from contact with their children because courts used balance of probabilities.
> the recent wave of "guilty until proven innocent" ...
> the media collectively decided that it was a good idea to promote abandoning the principle of "innocent until proven guilty,"
The stories I've read have done a good and careful job of corroborating and verifying their stories. Those that don't are subject to massive libel lawsuits like the one that shut down Gawker.
> smugly righteous
> hysteria
This is name-calling, which doesn't add to the discussion, and it's against nobody in particular, which makes it meaningless. Who, by name, is smugly righteous or hysterical? And do those people affect us? Are they representative or influential somehow?
There are several good recent examples of this: - the project veritas employee trying to shop a false abortion story to the post - the schumer accusation that was shown to be falsified - weinstein's fake accuser that was planted by his own team to discredit investigations
When people come with false information, it gets found and reported on, because journalists do their due dilligence. News organizations are really careful about this kind of thing, because screwing up here is a really good way to get your entire org badly burned.
This article is about "sexual harassment" which isn't illegal according to federal law. You are conflating it with "sexual assault" which is a crime.
>It is unlawful to harass a person (an applicant or employee) because of that person’s sex. Harassment can include “sexual harassment” or unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature... Although the law doesn’t prohibit simple teasing, offhand comments, or isolated incidents that are not very serious, harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted).
It changes absolutely nothing about what I intended to say, sexual harassment is serious, it still goes through the court system, due process still applies, preventing it is good for the public.
And I understand that false accusations happen occasionally, and I am willing to take that risk because a world that insists on zero false positives has a ton of false negatives. It would be hypocritical for me to not accept the consequences if it happens to affect me - I am not advocating for others anything I could not accept for myself. But I can absolutely accept that if I am a visible leader of an organization, or a manager of people, or in some other role of trust, and I am accused of something I believe I didn't do, the best thing for me to do for the organization is to step aside. (It is not like I can guarantee that I will even live to see tomorrow, so anything that I care about, I should arrange so that my personal involvement is not critical.)
But more than that, it's entirely possible (though I have zero reason to expect it to happen) that some behavior I thought was reasonable will be seen by the world as unreasonable. And if that happens, I am happy to accept the consequences. My goal is making the world a better place, not making myself powerful/comfortable at the expense of other people. If removing myself from positions of trust to prevent my behavior from hurting the world is the right thing for me to do, why should I shrink away from it?
the rest of your comment just sounds ridiculous, hurting the world? im sure you realize not everyone else has the same attitude and arent going to throw away their livelihood because of a false accusation. that's not moral high ground, its just pathetic
"If a conservative is a liberal who's been mugged, a liberal is a conservative who's been arrested." -- Tom Wolfe
Also, where did sexual assault come into this? Sexual assault is a crime. Sexual harassment isn't a crime at all; it's a civil wrong that exists only in the context of the workplace.
A large portion of these events have come from men with money and power. Letting them pay their way out of this just means they get to go on perpetrating the same crime on other people. That's not an acceptable outcome for sexual harassment.
Edit: Sexual harassment, as such, is not a crime under state or federal law in the U.S. Murder is a Crime.
Makes no sense to compare it to murder. apples oranges.
Not sure what point you are making since all you did was ask a leading question.
Why do people have to take political sides rather than supporting actual truth and justice, regardless of who "wins" a particular case? It's infuriating.
Once you realize that false negatives are as harmful as false positives, then it makes sense to use a civil standard instead of putting a thumb on the scale for the accused. Statistically, sexual assault is far more common than false accusations. Applying a criminal standard results in a lot of social harm through false negatives that isn’t outweighed by avoiding false positives.
Where I think Title IX goes off the rails is treating these cases as being about punishment. Civil standards aren’t for punishment, they’re for resolving disputes. In this context, it’s not about deciding whether the accused is guilty of rape, but about deciding: “which student should be the one to leave?” I think Title IX resolutions should be secret and the only remedy should be expulsion or some sort of internal restraining order.
> The basic idea is sound: the university needs to do something when one student accuses someone else.
No, that isn't sound. It's a criminal matter. You don't inform your professors, you don't inform your employer, you don't inform your gardener, you inform the authorities. We're not talking about plagiarism here, we're talking about a criminal offence.
As a Brit, the idea that a college should have some sort of mini criminal justice system, seems utterly absurd. The only institution with its own criminal justice system, is the military, and they take it every bit as seriously as the civilian world.
> Applying a criminal standard of proof is incredibly unfair.
We're talking about adults dealing with crime. How is the criminal justice system any more unfair simply because both the victim and the suspect are both students at the same institution?
> Unlike in the criminal context, a false negative (incorrect acquittal) has a direct prejudicial impact on the victim.
That's a nasty attribute of rape, and of various other crimes, not of colleges.
Aren't most rapes committed by someone the victim already knew? You seem to be treating the college case (where both are students of the same institution) as categorically different from a case where the suspect is a friend (well, 'friend') or colleague of the victim.
I don't see it. I certainly don't see it as a justification for lowering the burden of proof, or for letting the suspect escape ordinary criminal-justice proceedings.
> But in a college context, the victim is seeking something that can actually help. Not punishment of the accused, but freedom to continue her education without the threat posed by the accused.
Again I don't see a category difference here. If the suspect is a colleague, or a member of a social circle shared with the victim, the same issue arises.
> Once you realize that false negatives are as harmful as false positives
Of course false negatives are harmful, it would be absurd to deny that, and no-one is doing so. That is the case for all serious crimes. It remains necessary to insist on a high standard of proof, and on presumed innocence.
> sexual assault is far more common than false accusations
You seem to be assuming that this ratio is set in stone. If you make it easier to make a false accusation 'stick', we would expect them to happen more often.
> In this context, it’s not about deciding whether the accused is guilty of rape
But it is. The consequences of the accused being found guilty can be severe, no? If a rape has occurred, a crime has been committed. Dealing with crimes is not within the purview, or the competences, of a college.
What distinguishes criminal matters from civil matters is the remedy sought. For example, OJ Simpson was acquitted of murder, applying criminal standards of proof. But he was found liable for wrongful death, and ordered to pay damages to the families, applying civil standards of proof.
Criminal law and civil law address different concerns, and the same conduct can raise both criminal and civil issues. Criminal law vindicates the government's interest in retribution, deterrence, or rehabilitating an offender. It does not generally address the victim's personal rights. Thus, the government can prosecute when the victim does not want to, and vice versa.
In a campus rape case there is a criminal aspect. But there is also a civil aspect. Students have a civil legal entitlement to pursue their education at schools receiving government funding free from harassment. Forcing a student to either continue attending classes with her rapist, or to leave the school is undoubtedly an infringement of that legal entitlement. That civil concern is wholly distinct from the criminal question of punishing the rapist.
> That's a nasty attribute of rape, and of various other crimes, not of colleges.
No, it's a distinction between civil and criminal aspects of a course of conduct.
Say you hit me with a car because you were driving drunk. There is a criminal aspect to the case (driving drunk is a crime), but there is also a civil aspect to the case (hitting someone with a car due to negligence is a tort giving rise to damages liability). You being erroneously acquitted of drunk driving under a criminal standard of proof doesn't hurt me. It's a moral loss, nothing more. But you being erroneously found not liable for negligent driving does hurt me. It means I'm forced to bear my medical costs, and have been erroneously denied compensation. The false negative (an wrongfully injured person being forced to bear their own medical costs) is just as bad as the false positive (a wrongfully accused person being forced to pay someone else's medical costs). So in the civil context, we do not apply the maxim of "better to let ten guilty men go free than convict one innocent man." Because it's not better to find 10 people not liable for drunk driving when they did so than to find one person liable for drunk driving when he did not. That results in 10 victims who are wrongfully denied compensation for their injuries. So that's not the standard we use. Instead, we weigh credibility under a "more likely than not standard."
The same is true for sexual assault and sexual harassment in the workplace or the school. Applying criminal standards of proof in that context, what you're saying is: "it's better to force 10 people to continue to attend classes/go to work with their harassers/rapists than to force 1 person to quit their job/school due to a false accusation." But that doesn't make any sense. In both cases (false positives and false negatives), someone is wrongfully denied educational opportunities. Saying that it's okay to have 10 of one outcome to avoid 1 of the other outcome basically just says that false accusations are somehow worse than sexual assault.
You're excused.
The Trump administration relaxed the requirement that universities adhere to the “preponderance of evidence” standard.
This is all, for incidents where a crime occurred, in parallel to the usual criminal court system. No university Title IX panel is trying criminal cases.
I note that in your edit you have jumped from "killing someone is a crime" to "Murder is a Crime." Those are different things. Killing someone is, technically, not a crime. There are lots of cases in the US where you can kill someone legally (self-defense, fighting a war, administering the death penalty, being a cop who got scared, etc.). Murder is a specific crime because it's a specific set of circumstances around killing someone. Even manslaughter is a separate crime.
In the same way, no, "telling some one a sex joke" if you're a comedian at a bawdy bar, or in bed with someone you met on Tinder, or any such thing isn't a crime. Telling someone "a sex joke" in a way that creates a hostile working environment is a crime, as is allowing it to happen. And this article and this entire discussion is specifically about sexual harassment in working environments.
If you do not understand this or believe this, for your own sake, please seek actual legal counsel before telling any more sex jokes.
As an actual attorney (this is not legal advice), I advise you to stick to what you know.
Commiting a crime is illegal, sure. I don't understand what you were implying then.
Even if we aren't initially talking about a crime, I would find it unjust if a billionaire quietly paid off 100 victims of sexual harassment, and then committed an assault. "Who could have predicted this?!?!"
The reason that courts, specifically, do not have this paradox is that "innocent" simply means "we do not have the evidence to justify using the extraordinary punishment powers reserved to the government alone against this person". Yes, there's such a thing as getting a court to declare you affirmatively innocent, but usually they say "not guilty," which is an important philosophical distinction. So a court can very well decide that a person has not been proven guilty of their crime, and that their accuser has not been proven guilty of malice, either.
But humans don't work like that. When we think "innocent," we don't think "I have insufficient data," we think "they didn't do it". It is arguably a flaw in human thinking, but it's a flaw we have to live with and work with. And a world in which all who accuse people of sexual harassment are effectively guilty-until-proven-innocent in the court of public opinion isn't a great world, either.
Sure they do. There are three options, just like there are in court. We punish the accused, or we punish the accuser for lying, or we don't punish either of them.
Not punishing anyone is what we do when we don't have convincing evidence one way or the other. That's just consistency -- you don't punish the accused without proof just like you don't punish the accuser without proof.
When there is no way to know the truth, it's completely valid to do nothing.
That's usually not strictly true; knowing false accusations are a crime, but it's usually possible for the accuser's statement not to be a knowing falsehood while the accused is not factually guilty.
This interestingly maps to computer science. When talking about accusations for some reason we expect outcome to be binary, while the outcome is ternary. Binary logic is difficult, ternary logic is even more so.
Given ternary input state of accuser (false accusation, real accusation, ¯\_(ツ)_/¯ accusation) and ternary input of state of accused (guilty, not guilty, ¯\_(ツ)_/¯), I try to think of logical (relational?) operator/function which combines these inputs and yields ternary verdict. Given that output should be undefined unless both states are known, there should be AND between the states. Maybe something like Verdict = Accuser AND NOT Accused which would yield a verdict only if both accusation and guilt can be proven. But we still have a can of worms unopened regarding evidence and what evidence actually proves, because more likely than not evidence will prove or rule out possibility that something has happened
This is not strictly or even practically true, but you acknowledge that later. When the defendant prevails in a court case, we don’t turn around and lock up the plaintiff.
You go on to say:
...a world in which all who accuse people of sexual harassment are effectively guilty-until-proven-innocent in the court of public opinion isn’t a great world, either.
If you replace “sexual harassment” with any other accusation, do you still feel the same way? With regards to the flaw in human thinking you mention — do we have to work with it for all kinds of accusations, or is it specifically a problem for sexual harassment?
Yes, I do.
The reason I mention sexual harassment is that a lot of people are making accusations of sexual harassment. To believe that the accused are all innocent until I hear evidence otherwise until proven (i.e., to treat the accusations themselves and their consistency as having no information value) is to believe that all the accusers are lying. Very few people are making accusations of, say, piracy on the high seas, so I don't feel like I'm really believing that anyone is lying by holding the belief that piracy on the high seas is rare or that the average person is not guilty of piracy on the high seas.
There are a couple of other accusations I hear regularly. Some of them are things like "Police can murder citizens with impunity" and "The NSA is spying on us." I do think that those accusations should be heard and understood, and not dismissed in the court of public opinion on the grounds that the police and the NSA are innocent until proven guilty.
There are other accusations like "A pizza shop in DC is running a child-trafficking ring under its basement" or "Antifa poured concrete on Amtrak rails, causing the derailment earlier this week." For those I don't believe in holding the accusers guilty until proven innocent, either; a small amount of research can demonstrate to public opinion that the accusations are false on the merits and the accusers are guilty because of specific reasons. (Or, perhaps, the court of opinion can find that the accusers are generally people who make up stories, which still avoids applying a standard of guilty until proven innocent to similar accusations in general.)
You can't explain away a dead body saying "he asked me to murder him." But you can explain away evidence of sexual intercourse by saying "it was consensual."
False accusations of sexual assault or harassment rarely result in any penalties at all (even when proven false by strong evidence), and there's immense resistance to imposing such penalties for fear of discouraging legitimate accusations.
What if the situation was, that someone told you they saw this sign one time? Would that be enough not to shop there?
Just trusting an allegation alone and walking away silently seems both less fair and less effective.
Also, sometimes you find out more to the story. Maybe the owner is very old, and it happened a long time ago, and he's since changed his attitude dramatically. Maybe you forgive him or maybe not, but then you at least put it in perspective.
In any case, certainly don't repeat the unsubstantiated allegation to others.
I am standing up for the presumption of innocence when the evidence is lacking or in conflict.
The consequences of a finding against the accused was ruinous to that person's career, and wasteful of their previous investment in their diploma. The consequences of the process itself, where the accused was subject to treatment that would grossly violate the Bill of Rights if it were the government's doing, was likely to prejudice any criminal prosecutions or real civil cases. And yet it was the government mandating this treatment.
This is different than an employment situation, where the at-will relationship is understood to govern and employees aren't generally seen as entitled to their job or any due process for ending it. Besides occupying a special place in American society as a necessary rite of passage, a university is charging students tens of thousands of dollars per year to attend. To expel a student without adequate due process, wasting their previous investment in their diploma, is unconscionable.
In many of these cases where students were expelled, the only evidence was the allegation itself. Is that the world you want to live in, where a young person's life can be ruined by a single malicious accusation?
> Is that the world you want to live in, where a young person's life can be ruined by a single malicious accusation?
The alternative is the world we live in, where a different kind of malicious act (a sexual assault), can force a young person to leave school, or impair her education because she's forced to continue to attend classes with someone who attacked her. For too long, the reaction to accusations of sexual assault was to shift the cost of reduced educational and career opportunities to the victims. The victims were the ones shuffled to different classes, or to different groups in the company, or encouraged to leave the school/company entirely. That's not the world I want to live in either.
You can't ignore the cost of false negatives in order to avoid false positives. In the false positive scenario, a young person is forced to leave school due to a malicious act (a false accusation). In the false negative scenario, a young person is forced to leave school, or continue to go to school with someone who attacked her, due to a malicious act (a sexual assault). Both of those outcomes are bad, and if you're being rational, you're trying to minimize SocialCost(false_positives) + SocialCost(false_negatives).
Setting the burden of proof high to minimize false positives does not minimize the total social cost. Indeed, in a world where sexual assault is far less common than false accusations thereof, it's completely irrational to set the standard in a way that minimizes the cost from false positives at the expense of increasing the cost from false negatives.
So you're fine with expelling a student (and likely ruining his life) on the basis of the findings of this 'court', so long as we don't admit that it's effectively a punishment?
> You can't ignore the cost of false negatives in order to avoid false positives.
So you disagree with Blackstone's "It is better that ten guilty persons escape than that one innocent suffer", I take it?
Erring on the side of 'not guilty' is a cornerstone of civilised justice systems. It isn't 'ignoring' anything.
> if you're being rational, you're trying to minimize SocialCost(false_positives) + SocialCost(false_negatives).
No. Again I refer you to Blackstone's formulation. Your utility function fails to capture the whole picture.
> Setting the burden of proof high to minimize false positives does not minimize the total social cost.
Yes it does. Blackstone was right.
What you are suggesting undermines the legitimacy of the justice system, which brings great costs. It also makes false accusations more likely, as well as more harmful.
It also assumes that a bad outcome is no worse for having been committed by the state, which is not so; it is far worse that an injustice be committed by the state than by ordinary citizens.
Having to deal with people who have wronged you, but who you can't prove have wronged you, is just an unfortunate reality of the world. That's how all people lived before the rise of big cities (if they lived in a society with due process), and it's still how millions of people live today in America. If you live in a small town and you get robbed, or mugged, or raped by someone, but the government can't prove it in court, guess what? You can't do anything about the fact that they frequent the same supermarket and same bar, send their kids to the same school, and so forth. In the social contract, this is the cost we pay for the security of our own rights should we ever be accused of wrongdoing. (And of course, a university is not a government or a town, but for the reasons I lay out in the previous comment, I think they should be treated as almost being such. And the comparison informs our intuition as to which social cost is better; it turns out we've already done such analysis and decided, in one similar sphere.)
For obvious reasons, there's no solid numbers on the false accusation rate, but the FBI has found that 8% of forcible rape reports were found to be false by investigation. And remember, those are the cases that the accusers decided to take to police. If you were the type inclined to make false allegations, you would be further encouraged by the lower burden of proof in university tribunals.
When they opened the East German archives, they found that ordinary people had turned the Stasi into their vehicle for personal vendettas. Got into an argument with your neighbor? Scorned by a lover? Stick the Stasi on them. And this was very widespread. A system created for one purpose, to punish wrongdoers of a certain kind, ended up being used to settle personal feuds. Such is the nature of man. Give people incentives to do bad things, and they will do them.
>But if you apply civil standards of proof, you can't mete out punishments. You can only adjudicate rights: "which one of us gets to stay?"
Potayto potahto. Getting expelled from your university for sexual assault is the end of you. Whether you call it a punishment or 'adjudication of rights' is for the law professors.
(And small point: the way you're framing it is a false dilemma, since there is a third option, 'both', which I discuss above.)
For those I don't believe in holding the accusers guilty until proven innocent...
You've used this kind of phrasing a few times, but strictly speaking, not believing the accuser is not the same as accusing them of any crime -- being wrong is a not a crime.
It seems to me that you are saying, that practically speaking we either hold the accused guilty-until-proven-innocent, or we hold the accusers guilty-until-proven-innocent -- we have have to make a choice, in the absence of proof. Is my understanding correct?
That's true of criminal assaults in general; striking someone with their consent is usually not a crime.
> You can't explain away a dead body saying "he asked me to murder him."
You can in jurisdictions where assisted suicide is legal. And even where it's not, a combination of no intent to kill plus consent can render an act that otherwise would be murder (even with either of those factors alone) into a non-criminal.
Sexual assault isn't different because consent matters, it differs because juries are more sympathetic to the accused (at least, accused from certain backgrounds) when it comes to determining whether there is sufficient grounds to believe consent may have been present or to dismiss such a belief.
It seems wrong to take evidence of sexual intercourse alone, and a statement by a plaintiff claiming that the sexual intercourse was non-consensual, as a basis for a conviction. That amounts to just deciding to believe one side and not the other. If that what’s happening, why look for any evidence at all?
All this nonsense is subjective. I mean to some people, being hostile and offensive is to have a differing opinion.
For how long is this nonsense to continue? People are too afraid and walking on egg shells to have a normal human conversation. Now that IS a hostile work environment!
For how long are we going to allow people to run around causing havoc and social disorder?
Just the other day some people talked about a person getting accused of sexual harassment because he wore a t-shirt with a big X on it. The bandwagon effect caused yet another person to claim the t-shirt were insinuating racism because of the t-shirts colors. For crying out loud! Think the victim got reprimanded, perhaps fired. Can't remember, I was quite drunk at the time. Do remember it didn't end well though.
This sort of bullshit is getting worse and more common. Companies don't want to deal with the drama so they just fires the victim of these accusations and publish a press release of which they pat themselves on the back for what they did.
You dislike someone? Accuse them of rape or sexual harassment, let the bandwagon effect do the rest. The drama queens, attentions whores, liars, trolls and such make the same accusation or similar and for some reason when several people claim the same or similar means the person is guilty. Argumentum ad populum.
This just pisses me off. What happened to "whoever makes a claim carries the burden of proof regardless of positive or negative content in the claim." Where's the justice?
This is like the witch accusations a few decades ago. "Aww. She didn't float, she drowned, guess she wasn't a witch. Oh well, mistakes happen". "She swore revenge and cursed us while she burned to death. It can only mean one thing: she was a witch!".
I see lots of people aggressively asserting this, but little evidence of the actual behavior described.
People who are yelling to everyone they can find about an environment that forces them to walk on eggshells aren't actually in such an environment.
But Obama didn't propose that accusations alone should be able to get someone expelled. He proposed applying the same preponderance standard that applies, and works just fine, in civil litigation.
> Having to deal with people who have wronged you, but who you can't prove have wronged you, is just an unfortunate reality of the world.
First, that's not true. We have both formal and informal ways of dealing with people who have wronged you, who you can't have convicted. For example, you can get a restraining order in Maryland using the same "preponderance of the evidence" standard Obama proposed for Title IX proceedings. You can sue someone for fraud or breach of contract for screwing you on a business deal, under the same preponderance standard. You can also use informal social mechanisms. Entrepreneurs live and die by their reputations, for example.
Second, this begs the question. I pointed out that in the case of both false negatives and false positives, someone is denied the opportunity to pursue their education or their employment. My thesis is that we should not treat one of those bad outcomes as being better than the other. Your response boils down to "false positives are really bad, but false negatives are just something you have to deal with." But why?
> Give people incentives to do bad things, and they will do them.
Incentives are created in both directions. How many careers do you allow Harvey Weinstein to wreck in order to avoid erroneously wrecking the career of a film producer who is innocent? That's the calculus you refuse to grapple with.
You can't reduce civil litigation to just the preponderance standard.
Civil litigation has all sorts of rules and procedures, that ensure that the burden of persuasion rests on the plaintiff, that only fair evidence is admitted, that the accused has the benefit of his counsel. It has opportunities for dismissal, summary judgment, judgment notwithstanding the verdict. It has a fair judge and a jury of your peers (that you can shape through voir dire), not a panel of political college administrators. It allows you to question your accuser. It allows you to acquire evidence through discovery, and gives you the benefit of an inference if the other party destroys it.
For what it's worth, here is what a bunch of professors at my law school had to say about Obama's Title IX policy: http://media.philly.com/documents/OpenLetter.pdf
>I pointed out that in the case of both false negatives and false positives, someone is denied the opportunity to pursue their education or their employment.
Except, again, this is not true. The third option is the status quo, that both persons may continue to pursue their education.
The stakes in a Title IX suit are not really lower in reality, if they are in theory. First, a senior expelled from a private university in their fourth year has been deprived of 1) over $200,000 spent towards a diploma they will now never receive, 2) the opportunity cost of four years of their life, 3) enormous lost future income, as they are now excluded from most professional positions, and 4) other reputational damage resulting from an adjudication that they committed sexual assault. It is an extremely rare civil suit that can actually have such catastrophic consequences for someone's life.
I don't think(?) that marcoperaza is saying that Title IX courts should have the same rules and procedures as a criminal court. It's acceptable to have a lower standard of evidence and, to a degree, relaxes rules of procedure. Especially if these rule changes are paired with limitations on penalties: as rayiner suggests no punitive punishment, just expulsion (which I agree is serious) and sealed records.
Similarly I would bet that tptacek & rayiner would agree that in some cases Title IX courts got a little off the rails with their procedures: possibly lowering the standard of evidence below "preponderance of evidence" to just "some evidence at all" or maybe in some of the worst cases "just an accusation." In addition the methods of defense left to the accused were probably not sufficient in some cases. Their ability to view and present evidence and witnesses was overly curtailed and that needs to be fixed.
The dispute here seems, by my reading, to be between two prescriptions for moving forward:
(1: Rayiner): The problem with Title IX is one of matching scope with procedural rigor. We don't need to raise the level of rigor to that of a courtroom if we constrain the scope and thus the consequences of an adverse action under Title IX.
(2: marcoperaza): The problem with Title IX is a simply a lack of procedural rigor. Any adverse action, no matter how tightly scoped, is problematic without the protections provided to the accused by a courtroom.
I also think that colleges are hopelessly ill-equipped to handle most allegations of sexual assault, which are highly-politicized in the current climate and often boil down to he-said-she-said disputes. A judge is very aware of the kinds of reasoning that are unfair to the defendant, such as categorical claims about men or women, or appeals to political ideology.
And finally, I think there is disagreement as to how tolerable erroneous expulsions are. I would rather err on the side of under-"conviction". Rayiner is arguing that it is just as bad to deny the accuser the right to an education free from such hazards, so we should not favor one over the other. I think the right way of thinking about it is favoring the status quo, unless there is compelling evidence to change it.