Unlike Title IX, employment discrimination under Title VII of the Civil Rights Act of 1964 has a far more affirmative reach than merely post-hoc punishment. It provides:
It shall be an unlawful employment practice for an employer –
(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin;
Proof of discrimination can be shown by actual animus or disparate impact, but with limitations.
An unlawful employment practice based on disparate impact is established under this subchapter only if-
(i) a complaining party demonstrates that a respondent uses a particular employment practice that causes a disparate impact on the basis of race, color, religion, sex, or national origin and the respondent fails to demonstrate that the challenged practice is job related for the position in question and consistent with business necessity
What constitutes “business necessity” has been the subject of much litigation, and cultural shifts over the years. It appears that it may be about to enter a new era.
No more dinners with female colleagues. Don’t sit next to them on flights. Book hotel rooms on different floors. Avoid one-on-one meetings.
In fact, as a wealth adviser put it, just hiring a woman these days is “an unknown risk.” What if she took something he said the wrong way?
Across Wall Street, men are adopting controversial strategies for the #MeToo era and, in the process, making life even harder for women.
Guess where this is going, despite the obviousness of its happening?
Call it the Pence Effect, after U.S. Vice President Mike Pence, who has said he avoids dining alone with any woman other than his wife. In finance, the overarching impact can be, in essence, gender segregation.
The stunning bias and shallowness of this Bloomberg post aside (why not call it the “Aziz Effect“?), women are coming to realize what should have been clear to them at the outset.
Now, more than a year into the #MeToo movement — with its devastating revelations of harassment and abuse in Hollywood, Silicon Valley and beyond — Wall Street risks becoming more of a boy’s club, rather than less of one.
“Women are grasping for ideas on how to deal with it, because it is affecting our careers,” said Karen Elinski, president of the Financial Women’s Association and a senior vice president at Wells Fargo & Co. “It’s a real loss.”
Of course it’s a “real loss,” And there was never any question but that the culture on Wall Street was outrageously sexist, as was made clear well before the social media hashtag crowd went viral. Now that the sexual assault, harassment and “misconduct,” to the extent any of the words have any meaning anymore, is determined based on the feelings of women after the fact, what are men to do about it?
“If men avoid working or traveling with women alone, or stop mentoring women for fear of being accused of sexual harassment,” he said, “those men are going to back out of a sexual harassment complaint and right into a sex discrimination complaint.”
The post provides the Menckian solution to this problem.
Finally, he landed on the solution: “Just try not to be an asshole.”
That’s pretty much the bottom line, said Ron Biscardi, chief executive officer of Context Capital Partners. “It’s really not that hard.”
Seems simple, right? Solutions to straw men tend to be that way, simple, except they tend also to be utterly useless as they fail to address the actual problem. It’s one thing for a man to abuse his position and physically force himself sexually on a woman against her will. But then, what’s wrong with leaving the door of a private office open so that all can see that there is no sexual activity happening within?
The problem from the simpleton’s perspective is that men should stop doing whatever it is that a woman, each one of whom gets to decide for herself what conduct they find acceptable, and get to revisit their decision the next day, week or year, decides is improper. Should a new hire decide that a word or phrase used by the person who manages her is not to her liking, say he uses the word “hysterical,” she can accuse him of sexual harassment and subject the corporation to Title VII liability. Whether she wins or loses the case is irrelevant, as there may be a trial in the court of public opinion and there is no place for him to get his reputation back.
Is there a business necessity for male employees to do everything within their power to eliminate any possibility of false accusations of sexual assault or harassment? The “don’t be an asshole” rule may present a bit of a problem for managerial and judicial interpretation, even though it’s consistent with the depth of thought and expression preferred by the young and woke. How does a business function when any woman, no matter what her level of sensitivity, can claim she’s been sexually harassed because she feels that way?
Women have created a minefield for men, who unsurprisingly don’t want to be blown up. In the real world, what is a guy to do to avoid an accusation of impropriety as well as an accusation of discrimination against women for not inviting them for drinks after work? Can women have it both ways?
*Tuesday Talk rules apply, with the caveat the there be no discussion of guns, ammunition or deer hunting season.