Pondering the Harassment High Road

Al Franken is gone from the Senate, or at least will be soon (but not soon enough), after the worst "I remember it differently but I'm leaving anyway" speech we will ever have to hear.  If you had to listen to it, you heard the words of someone who was made a sacrificial lamb by his own party, cleared out of the way against his will, and unwilling to admit that he did anything wrong.

John Conyers is gone from the House, after having been accused of harassing female associates for a long time.  He was 88 and, to look at him, one wonders if he even knew what he was doing, which should make the citizens of his former district in Detroit about as ashamed as possible that he was whom they chose to represent them.

More will be accused, and more will resign.  And we will be left sorting through the detritus of the "me, too" movement, which will include those who lost their positions because of harassing women, and more to the point, those who will be hurt as a result but are completely innocent.  And by "those", I am referring to women.

You heard it here first, or at least early in the process.

Do you remember when the first job discrimination suits were filed by black applicants for positions who sued to claim that they had been rejected because they were black?  I know this dates back to at least the mid-1970s, because I was part of one of those suits, and received a settlement for having been rejected.  Granted, I was "black" only in definition #31 of the dictionary, and the company I applied to never met me and so had no idea of my race, had they asked, but it still happened.

At the same time, and more importantly, black employees who were laid off or fired started suing ex-employers for having dismissed them because of their race.  That was a real problem with enormous unintended consequences.  I mean, you can pass all the laws you want, but the outcome of legislation and the outcome of legal and judicial precedent moves people's actions in ways not always desirable.

In this case, employers ended up looking at more black candidates, sure, but with a filter that said "Is this guy or lady more likely to sue me if I have to fire them for cause?"  In other words, they had to apply a more stringent set of criteria for black applicants, because the lawsuit movement had applied an additional cost risk to hiring black applicants.  Was it worth it?  Probably not.

So we know that "me, too" is going to have its own set of unintended consequences, with the victims being not (just) the actual victims of the Al Frankens and Harvey Weinsteins of the world.  Employers have already shown how they respond to an analogous situation 40 years ago, and they will do the same here.

In other words, I would not want to be an attractive female job applicant right now.  I mean I really would not.  You see, the logical unintended consequence of "me, too" is going to map directly to what happened in the '70s (and since, of course), because basic behavior doesn't really change.  Except that it will have a spin that will be hard to deal with.

It is illegal to discriminate based on race, sex, age and a few other things.  It is not illegal to discriminate based on competence, experience ... and attractiveness.  We know from studies that attractive females are markedly more likely to be hired than unattractive ones.  We don't even have to guess why; people gravitate toward more attractive associates of either sex.

It is pretty bad to be accused of racial hiring or firing bias; it is miserable and illegal to be deemed guilty of sexual harassment.  No employer worth his salt would voluntarily put himself in that situation if there were any alternative, and the alternative is to remove the temptation by hiring the less attractive candidate.

So what does the unsuccessful applicant do?  I mean, both my wife and I have been subject to age discrimination in hiring, but we only recognized it after we saw a pattern of multiple interview treatments, that did not match treatment we had experienced in the past, when younger.  What happens now when attractive applicants start to see a pattern of being "me, tooed" out of getting hired?  You see, they can't exactly sue, because not only is "attractiveness" subjective, but using it as a criterion is perfectly legal!

What happens when attractive unsuccessful job applicants band together with lawyers?  Whom do they go after in court?  Employers?  Harvey Weinstein?  Al Franken?  Their makeup artist?  Time magazine? There aren't really any deep pockets who are responsible; responsibility rests with a movement that is virtuous on its surface and in its intent, and which I have no problem with.

We know that the Democrats are trying to clear out their male abusers, so that they can claim the high road in the movement and try to paint the Republicans as anti-women.  I mean, we know that, and God help any male Democrat who wants to run in 2020, however pure, against a female Democrat in a primary.

But there is three years' time before the election, and a lot of things can happen.  For one, if the pernicious unintended consequences of "me, too" become a major topic in a few months, we won't be talking about who is on the side of attractive women, right?  We'll be having some very weird conversations, and they won't be about Republicans.

Let us keep our eyes on hiring practices going forward, shall we?  I'm here to tell you that people act based on incentives and disincentives, and when you hike the disincentives to include the risk of accusations of harassment, you're going to see changes and see them quick.  And we will hear about them.

And I expect to write about them.

Copyright 2017 by Robert Sutton
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