How can young Americans adapt to a post-Weinstein world?

by philg

The New York Times asks “Will Harvey Weinstein’s Fall Finally Reform Men?” and comes up with a weak “maybe”:

This reckoning is all to the good, even if it is far too late. It feels as though a real and lasting transformation may be afoot — until you remember that this isn’t the first time women have sounded the alarm.

Remember former President Bill Clinton, whose popularity endures despite a long string of allegations of sexual misconduct and, in one case, rape — all of which he has denied. Mr. Clinton did eventually admit to the affair with an intern, Monica Lewinsky, that nearly toppled his presidency, but he pointed out that it was not illegal.

Then, of course, there’s the current occupant of the Oval Office, who won the election only weeks after the public heard him brag about grabbing women’s genitalia [I interpreted Trump’s statement, “when you’re a star, they let you do it. You can do anything. Grab ’em by the pussy. You can do anything,” as a hypothetical regarding what some American women were willing to do in order to be close to Hollywood stardom, not as a story about something he’d actually done]

The key is to foster work environments where women feel safe and men feel obliged to report sexual harassment. “People need to be afraid not just of doing these things, but also of not doing anything when someone around them does it,” Sheryl Sandberg, the chief operating officer of Facebook

This may turn out to be the year when the tide finally turned on sexual harassment. The elements for a permanent cultural shift are certainly in place. More women have entered the work force, and the pay gap with men is closing, though not fast enough. More women than men are graduating from college;

In the end, though, the most lasting change will have to come from men, who are doing virtually all the sexual harassing. Boys must be raised to understand why that behavior is wrong, teenagers need to be reminded of it and grown men need to pay for it until they get the message.

Although in theory women could be denounced by men and, in a transgender age it is tough to know what “women” or “men” in the workplace might refer to, the New York Times seems to think it is men who be denounced and then “pay for it.” So let’s look at what young American men might do. Some will be social justice warriors, of course, and seek to improve their fellow humans. Let’s be grateful that we have those altruistic souls among us. In a society of 325 million (and growing!), however, it is more realistic for most people to adapt to changes rather than to try to make changes.

Let’s consider the young American man. Depending on the state in which the encounter took place, if he has sex with a woman he risks losing, at her exclusive option, roughly one third of his after-tax income going forward (see “Child Support Litigation without a Marriage”). Depending on the state of residence, if he marries a woman and has kids he is exposed to losing, at any time of the woman’s choosing, his house, the kids, and roughly half of his income going forward (see Real World Divorce, but note that this is not true in states such as Nevada). These risks cannot be insured against, though they can be largely prevented by staying out of the workforce.

Onto this we add the new risks of career termination from sexual harassment allegations. In the old (not necessarily good) days, a woman could not start a complaint with “I went to this married guy’s hotel room and then…” or with “Twenty years ago, this guy tried to…” Either statement would have reflected negatively on the woman (why did she go to the hotel room? why did she wait 20 years?) and therefore wouldn’t have been uttered. Perhaps more importantly, the statement couldn’t have gotten media attention or an infinite life on the Internet. A woman might be able to spread rumors about a man in a small town, but he would be free to relocate and get a job in a distant city. A potential employer in California wouldn’t have any way to learn that the man had been denounced in Upstate New York. Consider the man who reads Medical School 2020, invests four years and $300,000 in medical school, invests another five years in training, and then works 70-hour weeks to build a practice. All of this investment can become worthless overnight in terms of employability.

Let’s consider more direct risks. A financially successful American can be sued at any time for sexual harassment or sex-related misdeeds. Unlike with criminal cases (which also can be consequential and costly to defend), there is no “beyond a reasonable doubt” standard. The defendant will lose if the plaintiff is slightly more believable. In the best case, the result of defending such a lawsuit will be a $1 million bill for legal fees and no payments to the plaintiff. The worst case, however, cannot be known in our Common law system. The only limit is a jury’s imagination. Consider Erin Andrews, for example. A jury found that that she had suffered $55 million in damages from being filmed naked by a guest in an adjacent hotel room. As that is typically more than a hotel would have to pay for negligently killing a guest, it would have been impossible to predict an award of this size and, again, likely impossible to insure against.

Older Americans tend to be stuck in a rut. We have to keep doing whatever we’re doing. But maybe a young person could avoid the above risks by making smart choices?

I posted a comment on the NYT article suggesting that perhaps American men were already adapting…

American men are already in the process of being reformed! Every year a smaller percentage of them expose themselves to accusations of sexual harassment because their labor force participation rate falls. If Joe Millennial is at home (means-tested public housing, please!) playing Xbox 24/7, who is going to bother to accuse him of saying or doing something inappropriate? I haven’t heard of anyone whose SSDI check was cut off because of misbehavior.

The best way to avoid litigation in the U.S. is to be asset-free and income-free (welfare payments don’t typically count as income that can be attacked by a plaintiff, though SSDI can be harvested by a child support or alimony plaintiff). The right to live in a $1 million city-owned or city-obtained-from-a-developer apartment is more secure than technical ownership of a $1 million apartment (can be attacked suddenly by a civil plaintiff or gradually by a city via higher property taxes to pay for retired government workers’ pensions and health care).

If the welfare system in an American’s preferred state of residence is not especially generous, he can look at being on the receiving end of child support, alimony, and property division profits. If he marries a high-income woman and quits his job after the first child is born he can set himself up to be the “dependent spouse” and “primary parent” (or at least a 50/50 parent) and thus be entitled to a free house, alimony, child support, etc. (see the example of a man married to a fund manager in Massachusetts Prenuptial Agreements)

If the man is unwilling to let go of 1950s ideas of masculinity and insists on working, how about a union job? An employer cannot simply fire a union worker, e.g., because of an anonymous denunciation about behavior 20 years earlier. Among union jobs, I vote for unionized airline pilot because most interactions with co-workers are recorded electronically (pilots with children should be careful about where they live, however, because in winner-take-all states that look to the “historical pattern of care” in deciding which parent will be the winner, the airline pilot is almost guaranteed to become the loser parent; this can be avoided by establishing residence in a state that defaults to 50/50 shared parenting).

What about the Big Hammer: emigration. The American man who emigrates at age 18 will save a fortune in college costs (universities anywhere else in the world are vastly cheaper, and sometimes entirely free). If he settles in a Civil law jurisdiction, his exposure to lawsuits of all types is greatly reduced and the outcome of any lawsuit is much more predictable because it is codified (e.g., Erin Andrews would have received a pre-specified amount, not an amount that could only be known by looking into the hearts and minds of the jury). A Dutch friend: “You’re a lot less likely to be sued because the plaintiff has to pay all of the court’s costs and, if she loses, the defendant’s legal costs. The legal fees are a percentage of the amount at stake and the amount at stake is written down in a law.” The American man who emigrates to a civil law jurisdiction also greatly reduces his exposure to divorce, alimony, child support, and custody lawsuits (see the International chapter of Real World Divorce). The profitability of children is capped in most civil law jurisdictions, thus reducing the financial incentives to plaintiffs. Alimony may be entirely unavailable, e.g., in Germany. Custody may be determined by statute, e.g., “woman always wins” or “always 50/50,” thus eliminating the possibility of a custody fight. The chance of children living without their two parents in many European civil law jurisdictions is only about half of what it is in the U.S.

Of course, I’m sure that many people in Common law jurisdictions will get through this era of denunciations and manage to (a) dodge lawsuits from a spouse, (b) dodge lawsuits from sexual harassment accusers, and (c) continue to be able to work in the careers that they’ve chosen and trained for. After all, most Russians were able to get through the Stalin era without being denounced by angry or jealous neighbors. That said, why take these risks at all when it is possible to move to a Civil law jurisdiction and live without fear?

Where can a young man seek to go? For long-term economic growth prospects it might be wise to look at the World Bank ease of doing business rankings and also the Tax Foundation’s International Tax Competitiveness Index. Countries that do well on both scales and that operate under Civil law: Estonia, Latvia, Switzerland, Sweden, the Netherlands, Norway, Korea (mostly civil law?).

Readers: What do you think? We can all agree, I hope, that it would be wonderful if Americans never mistreated each other and therefore there was no need for a system of career-ending public denunciations, wealth-draining civil lawsuits, etc. However, humans mistreating other humans is an old story. So how should a young American adapt to the new environment in which decades of work and savings are more likely to be wiped out by an accusation?

32 thoughts on “How can young Americans adapt to a post-Weinstein world?”

  1. on the heels of AMZN’s Roy Price and of James Toback (“The Pick-up Artist”), today’s WSJ has saga of Bridgewater Associates’ Greg Jensen, for whom a $1 million settlement was paid to a female employee, who was represented by Gloria Allred. Jensen is Bridgewater’s co-chief investment officer as of article’s publication.

  2. > “People need to be afraid…”

    That menacing statement from Sheryl Sandberg is interesting, as is your oblique comparison with the Stalin era. The parallels are becoming difficult to miss!

    ‘In their struggle for ideological purity, the authorities did everything to encourage “fearless unmaskers” who, “without respect for persons,” showed up “survivors of the old psychology” in their colleagues. Reputations were pricked like soap bubbles, and the “unmaskers” quickly climbed the ladder of promotion.’

    – from Hope Against Hope by Nadezhda Mandelstam.

  3. This is more bizarre stuff. If your daughter gets harassed at work some day by her boss, you probably won’t be thinking about unions, transgender people, SSDI and the rest of you constellation of villainy.

  5. Vince: I think your comment is a good illustration of the American Zeitgeist. White cisgender men are assumed to be exploiters of women and are delighted that the U.S. playing field is tilted towards the Biffs and Charlies. But occasionally a white non-gay/non-transgender man may become humanized and therefore agree with the idea that women are systematically victimized. It is the birth of a daughter that causes this process of humanization. The proud father looks at the infant girl, realizes that she deserves to grow up and argue about the relative merits of node.js versus Python, and says “Now I demand that 50 percent of cubicle-dwelling coder slaves identify as ‘women’.”

    [I try to leave my own family members out of this blog (Facebook is my preferred tool for boring people to death with kid/dog videos), but, in response to your comment… first, it is not specifically women who are in the courthouses complaining about sexual harassment. This has become an all-gender American project (see, for example, people who are now trying to get cash out of Kevin Spacey). Second, I would hope that any of my children could outrun a morbidly obese 65-year-old would-be harasser such as Harvey Weinstein. Third, my kids are young and therefore it is tough to envision what the American workplace will be like when they’re adults or if they will want to be part of that workplace. Remember that we live in a global economy and, if present trends continue, independent of the risks identified in the original posting, young Americans may well seek to emigrate to countries with higher PISA scores, higher wages, and lower taxes.]

  6. “I would hope that any of my children could outrun a morbidly obese 65-year-old would-be harasser such as Harvey Weinstein”

    I see, Mr. Weinstein is the victim here because the women couldn’t run fast enough.

  8. I think your comment is a good illustration of the American Zeitgeist. White cisgender men are assumed to be exploiters of women and are delighted that the U.S. playing field is tilted towards the Biffs and Charlies. But occasionally a white non-gay/non-transgender man may become humanized and therefore agree with the idea that women are systematically victimized. It is the birth of a daughter that causes this process of humanization

    I don’t think that that’s the zeitgeist. I’m sure Americans can imagine that non-white men, e.g. Bill Cosby, also engage in such harassment, rape, etc. Maybe I was wrong about my hypothetical statement.

  9. Now that I think about it a little more, the question about harassment at work 10 or 20 years from now doesn’t make sense. Given current trends in litigation the workplace probably won’t look like it does now. If any time two Americans meet face-to-face there is a chance one will sue the other and also an employer, it seems likely that the workplace will be reconfigured to prevent this. For example, people can work from enclosed pods with video links on four interior walls. All communication with co-workers will be via these telecommunications links and what travels on those links will be recorded so that there is no question about who said or did what. Employees will have to sign contracts saying that they will be terminated immediately if they propose an after-work or face-to-face meeting with another employee, customer, prospective employee, etc. There is nothing magic about the 19th century bureaucratic workplace so why does it need to be continued in a 21st century litigation environment?

    [And, circling back to the original post, if a young American doesn’t like working from home or working from an enclosed pod, he or she can emigrate!]

  10. Another option is for the U.S. to update its anti-discrimination laws to permit employers to create physical environments where sex-related litigation is less likely. For example, an employer could set up facilities so that each one contained only employees with no mutual sexual attraction. One building could be reserved for heterosexual women, for example, with one desk reserved for a homosexual man. Employees would pledge that if they changed gender ID or sexuality they would tell the employer so that they could be reassigned to an appropriate building. Inter-building communication would be handled by recorded audio and video links.

  11. “If any time two Americans meet face-to-face there is a chance one will sue the other and also an employer” was true 20 years ago, is still true today, and will likely remain true 20 years from now. Thus, the assertion that “it seems likely that the workplace will be reconfigured to prevent this.” doesn’t really make any sense.

    “For example, an employer could set up facilities so that each one contained only employees with no mutual sexual attraction. One building could be reserved for heterosexual women, for example, with one desk reserved for a homosexual man. Employees would pledge that if they changed gender ID or sexuality they would tell the employer so that they could be reassigned to an appropriate building. Inter-building communication would be handled by recorded audio and video links.”

    Or alternatively, employers could set expectations about workplace behavior and discipline employees who behave inappropriately.

  12. Neal: The idea that the litigation environment today is the same as 20 years ago is true only if you can come up with examples of plaintiffs in sexual harassment cases from 20 years ago who (a) were able to bring up 10-year-old allegations and get a hearing, and (b) were able to get paid tens of millions of dollars without having suffered physical injuries or death.

  14. Several of the women attacked by Weinstein have described him as physically intimidating or overpowering them. (They ALL describe him as psychologically intimidating or overpowering them) Maybe don’t underestimate the physicality of the heavier set… Maybe young men could adapt by only attempting to sleep with women they are pretty certain want to sleep with them? They could also refrain from sending their staff out of the room/hotel during business meetings. (another Weinstein trick) Maybe Mike Pence is on to something…

  15. Neal: If you agree that the litigation environment is different, why wouldn’t it make sense for the workplace to be transformed?

  16. philg: Of course the workplace will change, but:

    Will the changes be sufficient to be termed a “transformation”?

    Will the changes which occur be those suggested in #9 & #10?

    Will the sexual harassment litigation environment (or litigation environment in general) be an important factor in driving whatever changes do occur?

    are among the questions for which you have not provided any evidence at all much less compelling answers.

    I find your suggestion that we must choose between allowing people (especially men) to behave anyway they want to in the workplace and transforming the workplace into an environment where every individual is physically separated from every other individual unconvincing.

  17. Neal: “I find your suggestion that we must choose between allowing people (especially men) to behave anyway they want to in the workplace”

    I certainly hope that I didn’t suggest setting myself up at the arbiter of allowing or disallowing other folks’ behavior. In any case, I don’t think actual behavior is relevant to litigation risk. If there is ever a situation in which two employees are alone, or an employee and a customer are alone, all that matters is whether one person has a strong a desire for cash and is willing to denounce the other person. Plaintiffs are getting paid off for alleged acts, such as speech, that leave no physical evidence. Absent physical separation and/or continuous recording, the only limit on this process that I can see is how motivated Americans are to receive cash without working.

    Remember that we don’t have a “loser pays legal costs” or “plaintiff pays court costs” rule as in Europe. We have a big surplus of underemployed attorneys (see https://www.nytimes.com/2015/08/25/opinion/too-many-law-students-too-few-legal-jobs.html ). Thus any American willing to denounce a co-worker should be able to find a lawyer to take his or her case on contingent fee. What does the denouncer have to lose?

  18. “getting paid off for alleged acts, such as speech, that leave no physical evidence”

    The US litigation environment has always been full of torts which leave no physical evidence. What is it about this particular tort which makes it so much of a problem that it is going to transform the American workplace?

  19. Neal: What is about this particular kind of case? As noted in the original posting, it is the tens of millions of dollars that juries have decided should be paid as fair compensation for suffering such acts. Combine that with the fact that any employee within an organization could be credibly accused of inflicting this degree of harm and you have a significant change compared to 20 years ago.

    [Also, find us an example of a person who, in 1997, had his or her career ended because of an allegation regarding a sexual act or proposal made to another adult in 1977 or 1967.]

    Here’s an example from today:

    https://www.usatoday.com/story/life/people/2017/11/08/jeffrey-tambor-denies-sexual-harassment-allegation-amazon-investigating/846480001/

    (actor who plays a transgender person accused of subjecting “a transgender woman named Van Barnes” to “inappropriate behavior”)

    This is not a good day for Amazon shareholders: “Amazon Studios has initiated an investigation into the allegations, Amazon spokesperson Craig Berman confirmed to USA TODAY late Wednesday.”

    (Maybe the answer is to have TV shows made in Turkey or Iran? https://en.wikipedia.org/wiki/Muhte%C5%9Fem_Y%C3%BCzy%C4%B1l is way better than most U.S. shows; https://en.wikipedia.org/wiki/A_Separation is way better than most Hollywood movies)

  20. @philg: Do you have evidence this is a trend and not just something we are hearing about or is spiking temporarily because of recent media attention? Do you have evidence that plaintiffs regularly collect large damages on spurious charges, and that individuals who bring spurious charges don’t suffer any consequences? For someone who claims to be concerned about data and its interpretation, you seem pretty willing to prosecute an argument based on a few high profile anecdotes.

    There is some countervailing evidence. For example, EEOC “charges” are down slightly (per capita) relative to 20 years ago.

  21. Neal: Your question doesn’t make sense to me because I have no way to know what would be a “spurious” charge. If two employees of a company are alone in an office or having a conversation in an empty hallway, there is no way for me (or anyone else who was not there) to know what they are saying and/or doing.

    https://www.lexology.com/library/detail.aspx?g=27fd17d9-b188-4b87-bf6d-7c3c519c4ad8

    says that a Federal appeals court ruling in 2014 changed the law: “Acknowledging that community standards have changed, the Full Court has abandoned the long-accepted range for non-economic (or ‘general’) damages in sexual harassment and sex discrimination cases which limited such damages to $20,000 in most cases. In a massive step away from compensation awards in previous cases, the court awarded $100,000 for pain and suffering and other non-pecuniary loss and damage. In doing so, the decision paves the way for bigger damages awards to come.”

    See also https://www.usatoday.com/story/money/2017/10/25/sexual-harassment-here-some-biggest-cases/791439001/

  22. “Thus any American willing to denounce a co-worker should be able to find a lawyer to take his or her case on contingent fee.”

    I doubt it; “denouncement” does not create automatic liability for the employer.

  23. “Your question doesn’t make sense to me because I have no way to know what would be a “spurious” charge. If two employees of a company are alone in an office or having a conversation in an empty hallway, there is no way for me (or anyone else who was not there) to know what they are saying and/or doing.”

    Then any behavior which occurs when two people are alone automatically becomes “acceptable” and neither party can be held accountable by the company or the legal system for anything they do in these circumstances. That hardly seems desirable.

  24. “This is not a good day for Amazon shareholders”

    The primary financial issue for Amazon shareholders is the potential for brand damage, not legal liability.

  25. All the unemployed lawyers will be eager to handle the deluge of sexual denouncement cases, but there’s likely to be a shortage of judges. I think the solution to that problem will be the same as that used for evicting persons their houses and depriving them of contact with their children: filing out a form that’s processed summarily ex parte. California provides a case study in the awesome power of a form. See:
    http://www.acrosswalls.org/domestic-violence-restraining-petition/

    The sexual denouncement compensation form could have a box on top where you write in how much money you want. Below that could be check boxes for various offenses, e.g. touched my knee, said I was sexy, etc.

  26. philg: The usatoday story you link to in #21 simply reports the facts of a few large cases. It doesn’t provide any evidence about trends or even the relative significance of these cases. You excoriated the NY Times for writing an article about sexual harassment in the Silicon Valley which used the same approach, then you site this article which is nothing but a description of a few cherry picked anecdotes in response to my request for evidence of a trend. BTW, there is probably nothing wrong with the article; it doesn’t claim to be an analysis of sexual harassment claims (just like the NY Times article didn’t claim to be an analysis of the prevalence of sexual harassment in the Silicon Valley).

  28. philg: I haven’t expressed any faith in our legal system in this thread, all I’ve done is point out that most of the particular statements about and criticisms of our legal system that you’ve made in this thread don’t stand up to logical analysis.

    As always, I remain keenly interested in your thoughts on and criticisms of our legal system. Wrapping the good bits up in hyperbole really obscures things and makes the discussion unnecessarily adversarial. For example, I think that one of the points you are trying to make in this thread (although I can’t be sure since it is never stated directly) is that there are potentially adverse consequences to creating a system which produces outsized rewards for making allegations which are hard to prove or disprove or are about behavior which may be ambiguous. If this is indeed one of your points, I would certainly agree with it. I’m not sure if the existing system leans that way or the other, or if we’ve created a system which simultaneously provides insufficient protection to people who experience actual sexual harassment while making it too easy for people who don’t to collect those outsized awards.

  29. Everyday Google, Amazon, and IBM tells us how great their AI is. How far away are we from building an acceptable android companion? If the target of sexual harassment can be replicated by a robot that does not sue, doesn’t the problem just go away? Young men can happily stay in the basement and young women can finally go to work without fear of being harassed. Everyone wins.

  30. Robert: everybody would win except the types of people who like having the power to destroy other people with unsubstantiated allegations.

    In unrelated news, feminists have already begun to denounce non-existent sex robots as sexist, misogynist, and abusive.

  31. Robert 29 –
    Wonder how long it’ll take for the robots to win their rights to not be abused by the basement-dwellers?

Comments are closed.