FtBCon2: Sexual Harassment Law and You, with full transcript! #ftbcon

Ken White of Popehat gave a great presentation at FtBConscience 2 about sexual harassment law and anti-harassment policies at conventions. Surprise surprise, the troll narrative about sexual harassment is about as far from the legalities of the situation as you can get!

Here’s some of his supplementary material he originally posted here:

Some related links:

Here’s the link to where the conference will be.

Here’s a short quiz in preparation for the talk.

Here’s a great resource about the recent history of calls for anti-harassment policies in the skeptic, open-source, and science fiction and fantasy communities.

Here’s the Equal Employment Opportunity Commission’s publications on discrimination issues.

I’ve written before about how complaints about harassment provoke disproportionate outrage and further harassment; those posts are hereand here.

The full transcript, graciously provided by Josiah BibleName (Facebook, Twitter, Flickr), is below the fold. It was provided without paragraph breaks; for readability, I’ll be editing them in as time allows.

Miri Mogilevsky: Hi, everyone. Welcome to FtB Conscience 2. This session is called Sexual Harassment Law and You. I did not mean for that to rhyme. So, as you know our community has become more centered… more concerned, sorry, about harassment at conventions in the last couple of years. Ken White is an attorney in Los Angeles and a law blogger at popehat.com. Today he is going to explain how private anti-harassment policies, like the one FtBCon has, work together with public anti-harassment laws, and how convention organizers can make the policies work. So the way this will work is, Ken will speak for about 45 to 50 minutes, and then he’ll take questions from the chat room. To find the chat room go to our website at ftbcon.org and click on the link in the right side bar. And let’s go ahead.

Ken White: Well, good afternoon everyone. My name is Ken White. I’m an attorney at a firm called Brown, White, and Newhouse in Los Angeles. And I know you’re used to attorneys talking to you with rows of impressive looking books behind them, but as this is the weekend, I’m coming to you from my house, more specifically the least squalid room in the house, with three kids in it. And I’m happy to talk to you today a little bit about sexual harassment law and how it fits together with the anti-harassment policies that have become increasingly an issue at skeptic conventions and other conventions.

In my practice I do criminal defense, I do civil litigation, but I also train companies in complying with sexual harassment law. California, like a number of states, has a law that requires companies with at least 50 employees to train their managers in avoiding sexual harassment, dealing with sexual harassment complaints, and complying with the law. So I’ve given presentations to corporations, and to a church, and to a school, and to a police department. If you asked me which one was the most awkward, it would probably be a tie between the police department and explaining to my pastor what ‘slash fic’ is so that I could explain a question from the audience.

So, I’m also a blogger. I blog a lot about free speech, and sometimes people ask me, Well, if you’re such a free speech advocate, how can you support these vague anti-harassment policies? Well, this is the way I look at it: I’m a strong advocate of free speech, and part of that is freedom of association. And part of freedom of association is the ability of private organizations, like FtBCon, or any other convention of skeptics, or science fiction fans, or open source software developers, to develop rules to run their own community, and to determine how they think people should be treated decently at their events. So I see this as completely consistent with the First Amendment.

As you may know, in the last two or three years, anti-harassment policies have become a major issue in a series of communities, like skeptics and atheists, science fiction and fantasy conventions, various authors’ conventions, open source software – many people with similar interests. And increasingly there’s been controversy. Some people disapprove of it, seemingly in a knee-jerk way; others see it as something that’s needed so that more people feel included and not deterred from appearing at these conferences. And there have been leaders in the community, uh, for instance the author John Scalzi told the science fiction community that he wasn’t going to appear at any more conventions that didn’t have an anti-harassment policy. But sometimes people ask, We have anti-harassment laws already, so why do we need policies at conventions?

Today I want to do three things. I want to give you the basic framework of American anti-harassment law; not like a law school course, not like a lecture; just an overview. Second, I want to explain to you why it’s not enough, that law, to get you what you want to prevent harassment at private conventions, and why anti-harassment policies are necessary. And then third, I want to talk about how an effective anti-harassment policy for conventions works, and how it should be administered and run to make things better, and not worse.

So, first, let me talk a little bit about the basics of American law and sexual harassment. In American law – and I’m talking about American law because I’m an American lawyer, and because I don’t know the law of other countries, I’m reluctant to make stuff up, and honestly I’m informed that I’m not even supposed to be familiar with other countries, or even really know where there are geographically, I think someone told me that’s unpatriotic, so I’m gonna be focusing on American law, forgive me.

In American law, sexual harassment is treated as a type of discrimination, a type of discrimination based on gender. So, the primary source of anti-harassment law in America is something called Title VII of the Civil Rights Act of 1964. That’s a groundbreaking civil rights law passed by President Johnson using the political capital he had after President Kennedy’s assassination. And for many years it focused mostly on making sure people, regardless of race, or religion, or gender, could get served at public accommodations. But it also prohibits discrimination in employment, not only on race, but on gender. And in about 1986, the Supreme Court started treating sexual harassment as a type of gender discrimination, on the theory that if your boss is insisting that you have sex with him to not be fired, or if its creating an environment where you are relentlessly harassed based on your gender, then that’s a type of discrimination, as surely as if they were not hiring you or firing you because you are a woman. So, under American law, it’s been Title VII that has been driving sexual harassment law for the last thirty years.

And slowly, a number of states, about half the United States, have adopted state laws that are a lot like Title VII. They, too prohibit sexual harassment. Sometimes they’re a little different, in terms of who you can sue, how much money you can get, or from whom, but they all prohibit it. Now, a lot of cities also have sexual harassment law, particularly more traditionally progressive cities, have sexual harassment and gender discrimination laws. So, you have a whole framework of American law. And to understand it, and to understand why you still need anti-harassment policies at conventions, you have to understand what the law prohibits and what it does.

American anti-harassment law prohibits two things. Number one is what’s called quid pro quo, because lawyers love Latin, it make us feel important. So, ‘quid pro quo’ is just ‘this for that.’ It’s the type of discrimination, the type of harassment, where a supervisor at work tells you that you have to go on a date with me to get this promotion. Okay? That’s always been clearly prohibited.

Also prohibited is a second category, and that’s called ‘hostile work environment.’ And that’s where, basically, ongoing harassment that changes the nature of your workplace because it is so demeaning. That’s the type of sexual harassment law, and the type of sexual harassment lawsuit that gets the most coverage in the news, and tends to get the most attacks from people who are critics of sexual harassment law. That’s what angry people on talk radio are talking about when they tell Americans, You can’t do anything these days at work; you tell the most innocent joke, and you’ll get sued. Well, that’s not really true. It’s trivially true that in America, anyone can sue for anything. Our legal system isn’t necessarily great at weeding out bad lawsuits. But there’s nothing especially true about that for sexual harassment, and in fact it’s very hard to prove a hostile work environment case under American law.

For sexual harassment to be illegal, and remember I’m still just talking about American laws and not about private harassment policies. For you to make a hostile work environment claim, you have to show that the conduct directed at you was unwelcome, and that it was either severe or pervasive, or both. That means basically either, one really, really bad incident, or a series of incidents that each on their own aren’t quite so bad. And it has to create an environment that’s hostile, or abusive, or offensive, that a reasonable person would find hostile and abusive, and that’s so bad that it changes the nature of the workplace, that it changes your environment. So, you can see, it’s not just anything you want it to be. It’s not just, I heard one joke, and that’s sexual harassment, for legal purposes. It’s not. For one incident to be bad enough to be hostile… uh, hostile work environment, it has to be pretty extremely bad, under American law.

So let me give you an example, because it kind of give you a sense of where the law is, and also gives you a sense of how absolutely crazy some people are out there. So, one example where a… one incident was found to be severe enough to be… to create a hostile work environment. A company did a team building exercise where the supervisors forced the mostly female employees to engage in an exercise that involved spanking the employees, the supervisor spanking the employees over his knee, while the other employees and co-workers shouted, Make sure she feels it, and, Do it harder. Now, a court found that that was severe and crazy enough to be sexual harassment, just that one incident.

Usually, in cases where it’s found to be sufficient, you’re talking about a series of incidents over time that are complained of, and not fixed. Or you’re talking about something bad enough that it actually comes out to be an assault, a sexual assault that’s a crime. So, if we have these laws, why do we need anti-harassment policies at conventions? If we have Title VII, if we have all these state laws in about half the states, and if we have a number of city laws, and if these prohibit sexual harassment, why do we need policies?

Well, there a few reasons. One is that the law, as I just said, doesn’t cover every little incident, and we would like to prohibit more conduct than is strictly illegal. So, you know, making one unwelcome advance, making two unwelcome advances might not be a violation of Title VII, but we would still like to protect people going to conventions from having to put up with that if they don’t want to. We want people who go to conventions to be able to say, No, thank you, leave me alone, and have that stick. Second, and more importantly, Title VII and the state laws that follow it don’t apply to everybody. They govern the employment relationship. So, if it’s your supervisor at work who is telling you that if you want to keep your job, then you have to go on a date; and if it’s your co-workers who are constantly making sexual references and jokes to you, then you have a Title VII case or a state law case. But, if you’re just being harassed by someone at a bar, who is not your co-
worker, who is not part of your work, then that’s not covered by Title VII. So, a classic convention scenario, where some other guest is bothering you, is probably not sexual harassment under Title VII.

There’s another part of the Civil Rights Act of 1964, Title IX, that applies the same rules to educational environments, colleges, universities, schools. There, you’re protected if you’re harassed by a professor or another student, and there there’s an obligation to protect you from that. But your standard situation, whether it’s out on the street, at a market, or at a restaurant, or at a convention, that is not your employer, these laws don’t protect you, and they don’t provide a mechanism for going after the person who is doing the harassing. So, oddly, though, there is somebody who’s protected at a convention by Title VII. And that’s the employees of the convention, the employees of the companies who are presenting at the convention, everyone who’s at the convention for work. Because one thing Title VII does do in sexual harassment law in America, is require an employer to take reasonable steps to protect their employees from third parties. So a classic example might be if the UPS guy is constantly perving on your receptionist, you need to think about it, and you need to listen if your receptionist complains, because you have an obligation to take reasonable steps to protect your employees from third parties.

Can this be an issue at conventions? Absolutely. Let me give you a completely terrible example. Uh, Comic-Con 2009. Probably you’ve heard of Comic-Con, huge comics fandom, gaming, science-fiction, fantasy, etcetera convention. Game company Electronic Arts was promoting a game that was coming out, it was called Dante’s Inferno, so it was doing sin based promotions and themes. And they sent out a promotion, it said, you know, Get goodies and swag, and do this by committing acts of lust with our Booth Babes, as they call them, and you’ll get things. Take pictures of yourself committing acts of lust with our Booth Babes.

So basically, a company said what amounted to, Go harass our employees, legions of people at Comic-Con. Yeah. And every, um, every lawyer like me, who trains companies how to act, winced. And every lawyer who sues companies looked up Porsches on the internet, what they’re going for right now.

So, that’s a great example of a situation where an employer has an obligation to protect their employees, and not to do things to make their employees more likely to get harassed.

So, there are still laws that might apply at conventions to punish people for doing things that you might regard as sexual harassment, but they’re not enough, either, and let me tell you why. There are criminal laws, obviously. Someone commits a sexual assault; or an assault; or you know, blocks somebody into a room so it’s effectively false imprisonment, or kidnapping; if someone threatens somebody with a real threat; all of those are criminal acts. And some classic harassment behavior, constantly hitting on somebody and not taking no for an answer, following them around, that sort of thing, could rise to the level of stalking. Some things could rise to the level of a crime, like, um… there are all sorts of crimes that the police can use to arrest you, if they want you. Disorderly conduct being a classic one that could be defined pretty much whatever you want it to be.

But these aren’t really an effective way to manage conduct at private events like conventions, except for the most extreme conduct. And that’s really not what you want to be focusing on, because a lot of the research indicates, a lot of the personal experiences people have shared, indicate that the thing that is deterring people from full participation at conventions in a lot of these communities, is not the most extreme conduct, it’s not something that you could get arrested for, but the wearying, daily, day-in-and-day-out, grinding down, constant other stuff. The constant leering, sexual references, unwelcome sexual overtures, groping, things like that, that the police are unlikely to ever do anything about.

There are other legal things that might help you, as someone who experiences that type of bad conduct. A private host, whether it’s the hotel where the convention takes place, or the company that organizes the convention, does have a basic legal duty to create a reasonably safe space from known risks. But that, again, is going to be taking reasonable security steps to prevent from, you know, breaking into your hotel room. It’s, you know, taking reasonable steps to protect you from fire. That area of law is very badly suited to protecting you from the sort of day-in-and-day-out harassment that actually deters people from coming to these conventions.

So, in short, the law is there; the law addresses the most extreme harassment; the law addresses sexual harassment pretty well in the employment context, in the academic context; but the law does not help to protect people from day to day sexual harassment that doesn’t rise to the level of a crime at private events like conventions. So, communities that want to send a signal about how they want their members treated, who want to set a standard of conduct, and who want to make sure that they’re being inclusive so that people are not deterred from attending, need to make their own choices and set their own rules. They can, and my position is, as part of their freedom of association, they should.

So, what should you do, to do an effective convention anti-harassment policy? Well, it’s really two things. First, do it right. And next, don’t do it wrong.

That sounds overly simplistic, but it’s the truth, because this is really a situation where, if you do it wrong, you make things much worse, and you expose the people who run the convention and the people who complain about harassment to liability. And that, then, deters conventions from having anti-harassment policies, and it deters people from reporting harassment. When I train companies on how to effectively use their anti-harassment policy to keep out of trouble, a lot of the training is about how not to do the investigation wrong, things not to do when you’re responding to a complaint and deciding what to do about it.

Now, one of the reasons – and I’m sorry this is a bit of a backtrack – one of the reasons that harassment training is very important in the employment context, is because of who is and who isn’t liable. Alright? If a business has a manager harass somebody, then the business is on the hook, they’re liable. But if it’s just another employee, the business is not necessarily liable. They’re not liable if they had an anti-harassment policy, if they implemented it consistently, and if, when the person complained, they addressed the complaint effectively.

So that’s why a lot of the training that I do is about how to do that effectively, because if you have employees creating a hostile work environment for somebody, and you hear about it, and you discipline the employees, you upgrade you anti-harassment policy, you train people, and you address the concerns of the victim, not only is the victim much less likely to decide to sue you, but the law is much more likely to treat that as the company not being liable. The individual harassers might potentially still be liable under some state laws. But that’s the goal as someone who protects companies in these situations, to get them to do it right, both because it’s the right thing to do, because it makes for a better work environment, because it makes employees ultimately happier, but it also protects them from lawsuits.

So, what should a convention do to have a successful and effective scheme for anti-
harassment policies that doesn’t make things worse. Well, the first thing is a written policy, and it has to be written, there’s just no two ways around it. You need a clear, as simple as possible, as straightforward as possible written policy setting out what is permitted, and what isn’t; what is discouraged, and what isn’t; and what will be tolerated, and what won’t.

A lot of critics of anti-harassment policies will tell you, Well this is too vague, I can’t know what this means, how do I know what is offensive or not. And, well, sorry, but that’s life.

And private individuals and private groups have a right to freedom of association, and that means that they’re going to make decision about who they want to associate with, based on their behavior. I don’t have to have a set of rules in writing that anyone can read to determine whether or not I’m going to think they’re a jerk, and I don’t want to associate with them. Nor does a convention have to have a set of rules that you could come down and have a hundred out of a hundred people agree that a particular incident falls under the rules or not.

That concern is understandable; how will people interpret that. But you can’t let yourself get hung up on it to the point where you never have a policy. The most important thing is to have a written policy that’s clear, that’s as simple as possible, that’s written in simple language, and that at its core says that what is prohibited is unwelcome sexual conduct, or unwelcome conduct along racial lines, or unwelcome conduct along religious lines, because unwelcome conduct along impermissible lines is at the core of anti-harassment law.

So, the next thing that an anti-harassment policy has to have is a clear identification of who you go to if you think that you’ve been harassed and you want to complain about it. Alright? And that brings along with it other things, like you have to have people who can be complained to, and you have to train them, and they have to know the policy inside and out, and they have to know the procedures for dealing with complaints inside and out, and they have to be people that you can reasonably rely on to react to a crisis in a professional manner. Okay?

So, one things that some policies get into trouble with is that they just say vaguely, Complain to management, or complain to staff, and that doesn’t help you. If you have to wander around and figure out whether this person is a manager, or this person has a janitorial capacity, or this person is in public relations, and you don’t know who to talk to, you deter people from reporting harassment, and you make it confusing, and you make it ineffective.

So make it clear, give the people multiple ways to reach that person, and make sure that person understands what their job is. Because another problem you see with some anti-harassment policies is that someone drafts the policy, they decide to appoint, uh, you know, Billy Jo Bob as they guy who’s going to handle the complaints, and they never mention it to Billy Jo Bob. So all the sudden, it’s in the middle of some event, Billy Jo Bob’s cell phone is blowing up, and he doesn’t know what to do, he has no idea what the sexual harassment policy is, and the way he reacts does not end up reflecting well on the organization.

So, a clear definition of who gets complained to, and employees who are trained on how to deal with it. That means, how to react to the complaint, how to keep it private, how to investigate it, and how to talk to the accused (and we’ll talk about that in a minute), and publicity about who those people are.

Next, a good policy has good publicity. That means… that doesn’t mean, you know, here’s 2014 FtBCon, Now Featuring Sexual Harassment Policies! But, no, conspicuous, easily able to be found links to the policy in the materials about your convention.

And finally, what an effective anti-harassment policy has is a team that knows how to investigate, and that has guidelines for investigation. When you get a complaint, the first thing they should be doing is talking to the person complaining, in private, in a private setting that’s comfortable to the person doing the complaining; not in public, not in front of other people, not in demeaning or upsetting circumstances, but in a professional type of setting.

The investigators need to know how to listen, to ask follow-up questions, to draw out details, and to not convey, for want of a better word, skepticism. Now, it’s fine to actually end up not believing somebody, and that may sound a little surprising to say, but an anti-harassment policy doesn’t mean that you automatically believe, or accept, everything that’s ever said to you in a complaint. But the key is to have people who a trained to be professional in interacting with people who are making the complaint, and that means hearing them out, asking follow-up questions, getting all the facts.

The other thing they need to do is ask, What do you want? What are you looking for here? One of the key problems that happens in sexual harassment investigations, whether it’s in an employment context, or in business, or in a convention, is that they might… the investigators, the people handling it, don’t get a clear sense of, Is this person afraid for their safety? What do they want? What would make this person comfortable again? Maybe all they want is, um, for someone to go talk to the person, and ask to be left alone. Maybe what they want is to be moved to a different location. Maybe what they really want is for the person to be disciplined or kicked out. But if you don’t know what they want, you can’t make informed choices about what will resolve this situation in a way that will address this person’s concerns, and also be effective, long-term, for the convention.

The next step in investigation that your investigators need to know about, is talking to witnesses. And you need to talk to the complaining… the complaining person, Who saw this? Who else might know about it? Who can we talk to? And then you need to talk to these people, again, professionally, in private, asking them to keep this confidential.

And then you finally need to talk to the person who is the accused, who has been accused of harassment. Um, now, you’re not required by law to do that. Again, this is a private convention, exercising its freedom of association. The accused has no due process rights, because a convention is not the government, and due process rights are something that you only have with respect to the government. But it’s good policy to ask the accused for their side of events, because, number one, it gives credibility and effectiveness to the anti-harassment policy and the procedure. And, number two, it wards off potential litigation, possibly bogus litigation, possibly litigation with some merit in it (and I’m gonna talk about that in a minute), it controls risks, and it makes the procedure more effective.

So, once again, the key is, to talk to the person who’s accused in a private, professional manner. One of the problems we see in training companies in implementing sexual harassment policies, is that they will sometimes do the fishbowl approach. Maybe you’ve worked some time in an office that has a central meeting room that has glass walls, and I’ve seen companies where if someone is accused of misconduct in the company, they will march them into the central conference room with glass walls, and interrogate them there, in front of everyone. It’s an awful idea. It’s unnecessarily demeaning and belittling to the person who’s being talked to, whether it’s a complaining witness who’s very upset, or a victim who’s shocked to be accused, it unnecessarily broadcasts your business to everybody, and it’s just not professional.

So any interaction with the accused should be in a professional manner in a private setting. And, once again, you’re not there to believe what they have to say, or to disbelieve what they have to say. You’re there to do this in a professional manner, hear their side of events, and make your determination. The final thing that a good investigation does is make a decision, decide who they believe, and decide what they want to do.

And people say, Well, wait, I’m not a judge, you know, I’m not a jury, uh, how can I do that? Well, you do it the way you decide how you believe anyone else. And once again, you’re not a judge, you’re not a jury, you’re not the government, so this is not something governed by due process. It’s governed by best practices and a sensible approach to how you want your organization to look. And you need to assess credibility based on your instincts in talking to the people, based on whether their stories are consistent, based on whether there were witnesses one way or the other, and make your call. And then based in part on what the person has asked for, on the sensibilities of your organization, on the terms of your policy, you decide what to do.

If you decide that person violated the policy, then perhaps you ask them to leave for the rest of the convention, or forever, never to come back to the convention any other year; or just to reprimand them, and tell them they’ll be asked to leave if it happens again. Whatever it is, whatever the result you decide on, once again, you do it in private, professionally, not confrontationally.

And you do not engage, as someone working for a convention, in physically expelling anyone from the convention. Okay? If you have a situation where you’re asking someone to leave because you’ve decided that they’ve violated the conventions rules, then it is not up to you to frog march them out. Right? That’s how you get sued. If they refuse to leave, you talk to the hotel security, or you talk to the police, or both would be a good idea; you let them take care of what’s ultimately a law enforcement issue, which is expelling someone from a private space, where they are no longer allowed, where they refuse to leave.

So, the things that I’ve just told you of what you should do tend to mesh with the things you shouldn’t do, and you can probably guess them already. And the reason I’m telling you that you shouldn’t do them, is that if you implement an anti-harassment policy in a clumsy way, if you get involved in things you shouldn’t, then you could wind up getting sued, and incurring liability for the people involved, all the way from the complaining witness up to the people who run the convention. It may be a bogus suit, it may not succeed, but doing these things the wrong way increases the chance that it will happen. It increases the chance that you’ll be spending time in conference rooms with lawyers like me. It increases the chance that you can’t get rid of the suit early. Fortunately, by following good practices, like the ones I told you, you can minimize those risks.

You can never eliminate the risk of litigation in modern America, but you can minimize the risk of being sued, and you can maximize the chance of getting rid of a bogus lawsuit. Here are the things you should avoid.

Avoid talking about what happened, except as necessary. Alright? So, if you are running the convention, you should not be making an announcement that we have expelled John Smith for harassing Jane Doe; that’s not appropriate. Those… People do not need to know that information, and all you’ve done is buy yourself what might be a defamation suit. What is appropriate is to inform the people involved of your decision, and, perhaps, to send out a tweet or an email reminding people, the convention has a policy against harassment that can be found here, but not tying it to anybody’s name. Alright?

Now, I realize that fights with some people’s instincts, that they want there to be more awareness of sexual harassment and opposition to it. And I understand that you would like to feel… more victims of sexual harassment to feel welcomed and know that there are remedies. But I’m sorry, this is it. Um, if you do those things, then you increase your risks. So, make your own decision. You’re adults. Just know, that if you unnecessarily broadcast, then you increase your litigation risks.

Other things not to do: Don’t confront people in public. Don’t interview the complaining witness in the lobby in front of other people. Don’t confront the accused person on the convention floor or in the middle of a talk. Do it professionally in private. Because again, confronting people in public is how you risk unnecessary litigation. Don’t engage anyone physically, like I told you. I mean, if the accused or the accuser comes at you, then you defend yourself. But other than that, I do not see any scenario where anyone running a convention for skeptics, or open source software, or science fiction, or any of these things should ever be in the position of taking physical steps to remove someone out of the convention; that is for security or the police. Alright?

And finally, don’t fail to document; do document. Everything you do, you should put it in writing, in an email to your supervisor, or whatever it is. You know. Jane Smith came and talked to me, she complained about John Doe doing the following three things. I talked to her. I talked to two witnesses. Next I’m going to talk to John Doe. Shoot it in an email to your supervisor. And next, I talked to John Doe, here’s what he said. Here’s what I’ve decided to do, I’ve done it. That helps protect you, and it helps focus you, too; if you have to put it in writing, then you’re going to think better about this process.

So, I’ve talked about the general landscape of sexual harassment law in America, and it has been very general. The mandatory California training, you know, is two hours long, and I need every minute of it. I’ve talked about why the general legal landscape is insufficient on its own to protect you at conventions, to do what conventions want to do, which is to truly discourage harassment and give a tool to deal with it. And I’ve talked to you about what effective policy should do, and how you should implement them.

So, now I’d like to answer any questions you have. I’ve taken less than the promised 40 minutes, but any questions.

Miri Mogilevsky: Thanks so much, Ken. We do have a few already. One person is asking, What can we do as random people to convince various organizations we belong to, to create anti-harassment policies?

Ken White: Good question. Well, I think that, particularly in the age of social media that there are a lot of tools you can use to do that. I would recommend e-mail to the organizations. You know, I’m a longtime fan, I go to your conventions, you don’t have an anti-harassment one, I’d like you to consider to… I’d like you to consider having one. Here are links to other conventions that have them. And maybe on social media you tweet to that entity and say, Are you going to have one? Here’s a link to an article about it. And that sort of pressure will help. You know, I recommend the honey rather than the vinegar, but that’s up to you.

Miri Mogilevsky: Okay, thank you. Um, and I don’t know how much you’ll be able to comment on this, but another person asked, Given the recent kerfuffle – that’s a hard word to say – regarding the Chicago sci-fi convention’s anti-harassment policy, is it even possible to compel venue staff to follow convention policy guidelines? And I just wanted to add, that I know that there was debate over what they said happened actually happened, but if you could lend any insight to that.

Ken White: Sure, um, yeah, and I’m not able to suss out what happened, and I knew there were competing stories about that. But without making any call on that, I think the trick there is to be sure ahead of time what… that your staff has an understanding what their role is, and what the hotel staff is. In other words, if I were running a convention, I would not want to delegate to hotel staff or any other venue staff any role in running my sexual harassment policy. I would want my employees, my staff to be doing that, and the hotel’s staff would only be brought in if it were truly a security situation, like I said earlier. So, you know, if you have a live FtBCon, you need to have a team of people who handles this, and you’re only resorting to the hotel if someone is on the convention floor screaming and refusing to leave, then you go to security.

Miri Mogilevsky: Okay. Another question is, Do you inform the victim of the outcome of a sexual harassment investigation?

Ken White: Good question, and the answer is, Yes. In an employment context, it’s a little different, because sometimes there are privacy rules about what exactly you can and can’t tell them about what you’ve done to the other employee. But an effective procedure involves going back to the victim at the end, and saying, We heard you, we talked to the witnesses, we talked to the person that you were complaining about, and here’s what we did. And, you know, we… and we want to repeat to you that harassment isn’t tolerated. Do you have any other concerns? Is there anything else?

You know, a complaining witness is not always going to be… accept your decision, and an anti-harassment policy shouldn’t necessarily have as a goal, that the only right outcome is the one that makes the complaining witness completely happy. But, a complaining witness is much more likely to find the process acceptable if you go back and explain what you did and why, and it’s consistent with your policy. You know, some of the things we’ve seen in the last couple of years where these have gone badly, is when an event has a policy, there’s a clear violation of it, there’s a clear outcome that’s supposed to happen, and the convention just says, Oh, well, in this case we’re not going to do that. See, that’s a bad outcome.

But, if it’s clear that there’s a range of outcomes for a particular kind of conduct, and you go back to the victim and you explain to them, Here’s what we did, here’s why. Is there anything else you’re worried about? Is there anything else we can do? You will find that a lot of the time the complaining witness will appreciate that you’ve been that upfront with them. And that’s the professional way to do it.

Miri Mogilevsky: So you’re sort of advocating for more transparency in that process.

Ken White: I am, but transparency to the victim, not to the public. So again, your purpose is not to do all this in a fishbowl. And that can be troublesome because everyone wants to know what’s going on, everyone would love to… you know, some people see it as salacious, the type of thing people want to tweet about. But you don’t want to be open in that sense; you want to be open in the sense of both the complaining witness and the accused. This is what we’re doing, this is why, this is our decision.

Miri Mogilevsky: I’ve noticed often when there are sexual harassment investigations, and, you know, the details are not revealed to the public, a lot of people seem to assume, I think justifiably in some cases, but not in others, that nothing is being done, or that the organization isn’t really taking this seriously, when in fact it is, they just can’t share the details with the public. How would you respond to that?

Ken White: Well, there’s a couple of ways you could handle it. Number one, your policy should say clearly that when we do a harassment investigation, take steps, we generally will not make public everything we’ve done or our findings, uh, because it is not a public function. Second, when you get inquiries, you can say, We’ve received a complaint, we’ve done an investigation, we’ve taken steps, but generally, we don’t comment on exactly what we’ve done, we don’t comment on those actions.

Now, the complaining witness is free herself or himself to say, This is what they did, and say whether or not they’re satisfied with it. That contains its own risk for the complaining witness. But ultimately, the convention has to balance on the one hand, keeping… making it clear that they’re following the policy, and on the other hand, incurring unnecessary risks. And calling someone out by name by the convention is a risk that may or may not be necessary. So, if I were counseling a convention who had just expelled someone, I would normally say, We got a report, we investigated it, we ultimately decided to expel an individual from the convention, we won’t comment further on the process.

Miri Mogilevsky: Okay. And the next question from the audience is, What do you do if the accused refuses to cooperate with the investigation?

Ken White: Well, then you make your decision based on that refusal, you know. In American law, if you’re accused of a crime, the jury is not supposed to hold it against you that you refused to testify. As a criminal defense lawyer, I tell you they do all the time, and I don’t like it. But in a civil context, in the context of enforcing the rules of your club, your private organization, I have no problem with someone deciding that if the accused isn’t going to talk to you, you say, Okay, well then I’m going to decide that the accuser’s account is the correct one, and based on that, I’m going to make my decision. And if they don’t cooperate in the sense of, they refuse to leave, that’s when you get security involved.

Miri Mogilevsky: Mhmm. Um, and the next two questions are similar, so I’ll just combine them sort of into one.

Ken White: Sure.

Miri Mogilevsky: What’s your advice do victims of harassment? And do you have any suggestions on how victims should talk about their experiences?

Ken White: Yes, my advice to victims of harassment is always to inform yourself about the policy, um, and report. Okay? Certainly in the legal context, you can’t get remedies if you don’t report harassment. If you were at a company where there were pervasive hostile environment things going on, you’re not going to be able to sue that company unless you can show you made the management aware of it. In the private context, at a convention, you are not going to get satisfaction unless you go to the convention and you report it. I like to tell people to put things in writing.

So, you know, a good sexual harassment investigation, they may come to you and talk to you, and you’ll want to be forthright with them, but then you might want to send them an email, Just to confirm what I told you, it was X Y Z. Alright? When we’ve been hearing over the last five years about instances of sexual harassment at conventions coming out, I’ve heard again and again people saying, Oh, yeah, that happened to me by the same guy, you know, at the con in 2006, 2002, in 1998, and more and more people coming out of the woodwork who didn’t say anything before. Uh, and if people don’t say anything, then that information doesn’t build up, and the conventions can’t do anything.

In terms of how they can express themselves, um, they can certainly talk about their experiences. Doing so always carries some risks. Alright? I’m a First Amendment lawyer in part, I write a lot about free speech, and the analysis of when you could get sued for accusing someone of sexual harassment is fairly complicated, and too long for this short question time. But the bottom line is that if you state your opinion, it’s generally going to be protected. Where you might get sued is for stating facts that the other person says are untrue. So, I would say that you have to, as an adult, make your decision, Am I going to make this public? Do I think this person is a crazy person who might sue? And do I have people in my corner?

And let me tell, one of the things I do, is arrange for pro bono help for people who are subjected to bogus defamation suits, and there are people out there who will protect you in this situation, who will stand up for you. So, if you are ever in a situation where you want to talk about your experience of being harassed, and you’re worried about whether or not this person might sue, or whether or not there might repercussions, then reach out to someone who’s knowledgeable in the area. Either someone who practices sexual harassment law, someone who is informed about First Amendment law and defamation law, and try to get some people in your corner. And there are a lot of people in this community who are like that.

Miri Mogilevsky: So someone wants to know, What should be done about accusations of sexual harassment toward major speakers at an event?

Ken White: Uh, I may not understand the question. If sexual harassment allegations… if the allegation is made that the major speaker was the harasser?

Miri Mogilevsky: I think they’re… I think the context that they’re specifically asking about is if this is someone who is very well known.

Ken White: Well, uh, then, you know, as the convention hosts, you gotta… you know, you gotta cowboy up. You’ve got to be willing, if you want to be credible in terms of implementing a sexual harassment policy, to investigate anyone who is accused in the same way you’d investigate anyone else. Alright? And you have to convey that credibility. And I always say that in the policy, it should say very clearly, We want to hear about anyone. And a good policy might also give you alternate channels to report it, if the lead person who you report to is the one harassing you. Okay? But, yeah, there’s nothing you can do other than, you know, Damn the torpedoes, full speed ahead, this is the lead speaker, this is a famous person, but we have to treat it the way we would any other accusation of harassment. And believe me, I know that question references multiple reports of prominent figures in the skeptic, or open source, or science fiction or fantasy communities who have been accused of doing such things. And generally, when you hear these accusations, you hear people saying, This has been known for years, and that’s just how that person is, and it’s understood that it’s kind of part of their price of speaking at the convention.

Miri Mogilevsky: So just… I know that this a huge topic that probably deserves its own talk, but do you have any comments to make about the issue of online sexual harassment?

Ken White: Well, online sexual harassment is a little different, in that it’s not in a place where necessarily you would have an overarching community that can make decision about freedom of association and kick you out. So, if you’re talking about sexual harassment, you know, on a bulletin board, then I think a responsible community might make decisions that we’re going to tolerate this sort of behavior, and we’ll kick you off the board. If you’re talking about, you know, within the, um, the blog of something like a skeptics network or any other community, I think you could encourage those people to make decisions like that, and to have their own policies.

Once you get into the broader internet, then you’re now dealing with using, in effect, state coercion to achieve what you want to achieve. So, you know, that gets into a lot stickier area of what the First Amendment permits or what it doesn’t permit; also into the general legal protections for websites for what their commenters say.

So, to put it very simply, under the current system of law, it’s fairly difficult to go after anyone for anything that’s not a true threat, that is, a threat that a reasonable person would find is a real threat of harm, or a pretty extreme course of conduct. I think that… there are certainly movements out there to change that. I would honestly disclose that I think those movements are very problematical, because I think that it’s very different once you get into involving the government in doing this for you, to draw that line.

Miri Mogilevsky: Do you think it’s a better idea to involve, um, the actual companies that host, you know, these platforms, like Twitter or Facebook?

Ken White: I think people have had very mixed experience with that. And those mixed experiences include everything from Twitter or Facebook being extremely unresponsive to things that, you know, could normally be called harassment, to situations where Twitter and Facebook will use accusations of harassment… allow them to be used as a tool to silence what’s not harassment, but dissent.

You know, I saw just today on Twitter people pointing out someone… a homeopath, who promotes homeopathic medicine, who was encouraging her followers to use Twitter’s Report Harassment function, not to report sexual harassment, but really to report people making fun of homeopathy or criticizing people talking about it. And to me that’s why it’s… again, anytime you have to rely on another organization, rather than your own, then you run into a host of problems. And I realize that sounds like the Libertarian in me coming out, and maybe it is. But, um, Twitter and Facebook, I think, you can try, but you’re rarely going to get anything other than mixed success.

Until you’re going to someone you have a relationship with, or somebody that’s small enough to care about how this impacts their reputation, you’re going to have at best mixed results. But if you’re getting something that’s genuinely threatening, or a pervasive course of harassment, then by all means, educate yourself about the reporting from a particular platform, and use it.

Miri Mogilevsky: Okay. That’s all the time and questions that we have. Thank you so much, Ken, and thank you to everyone who’s been watching.

Ken White: Thank you for the opportunity.

FtBCon2: Sexual Harassment Law and You, with full transcript! #ftbcon

2 thoughts on “FtBCon2: Sexual Harassment Law and You, with full transcript! #ftbcon

  1. 1

    That was a really good – and exhaustively accurate, from what I know – discussion. It’s always nice to hear from a “real lawyer” about this stuff, since the internet is full of uninformed opinions stated as fact.

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