Tuesday Talk*: Damned If You Do, Sued If You Don’t?

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.

26 thoughts on “Tuesday Talk*: Damned If You Do, Sued If You Don’t?

  1. Rxc

    Bodycams for everyone, all day at work, and whenever 2 or more people who work together gather for any social function.

    It will stress those marriages where the spouses work together, but no price is too great to bear in the name of social justice.

    1. SHG Post author

      That will fix the “what happened problem” somewhat (after all, cams don’t show the electricity pulsing between people), but not the “was it rape” question when a woman feels as if a guy looked at her too long and “stare raped” her.

      1. ShootingHipster

        And bodycams will never catch the silent masters of fart rape. Besides, if a rose drops in the office and nobody hears it, did it really happen?

      2. Rxc

        But they will provide full employment for all the lawyers who will argue about every nuance of every interpersonal interaction that will be recorded.

  2. delurking

    I really like that Ron Biscardi guy. “The solution is easy! Just don’t be an asshole! Oh, and by the way, I’m canceling those after-conference open-bar events we used to have because the ratio of women:men at the company isn’t 50%:50%.”

    1. SHG Post author

      There are a lot of Ron Biscardi’s out there. Whether they are as woke in their conduct as they are when given the opportunity to get their name in the paper may be a fair question, but remember that the average IQ is 100, and half of all people are below that.

    2. jim ryan

      Yeah but, “The solution is easy! Just don’t be an asshole!” doesn’t work.
      Assholes don’t know they’re assholes. Kinda like Fish, who don’t know that they’re WET.

  3. Matthew Scott Wideman

    Women can’t have it both ways. When guys talk at the office….there is always a hushed undertone so that no female employee or collegue can hear. I suspect next year we will have to discuss our man talk with invisible ink and using edible paper.

    1. SHG Post author

      Not sure whether you’re referring to guys engaged in “locker room talk” (because women never talk about men or sexy stuff, or fart, but that’s really not relevant here) or guys talking about football and being misinterpreted about whether the tackle of the quarterback should have been called roughing.

  4. Hunting r


    I’m an old guy and apparently not woke.

    I read # as pound.

    I see #metoo and I see it as pound me too and wonder if there’s porn around.

    I doubt that I’m the only one.

  5. LocoYokel

    *Tuesday Talk rules apply, with the caveat the there be no discussion of guns, ammunition or deer hunting season.

    So, crossbows and elk?

  6. Hunting Guy

    How ‘bout pigs?

    Studio Killers. All Men Are Pigs lyrics.

    You are one of them
    Everything but femme
    I won’t be fooled again
    You’ve got the same kind of specs as the sex of men

    I believe in Simone de Beauvoir
    I believe that life’s a film noir
    I know the role that you play, so save your clichés
    I wasn’t born yesterday so don’t try to say:

    “I’m not typical, and Simone? You are just cynical!
    I am better than you think, let me buy you a drink
    Cha’mon, I’m not so typical at all”

    All men are pigs
    All men are pigs
    I’ve seen their tricks
    All men are pigs

    My logic will prevail
    So shut up, nightingale
    This is no fairytale
    Every single male that I’ve met ’til this day had a curly tail

    I believe it’s a poo poo world
    Men deceive, that means you too, girl!
    So zip it up Romeos, listen Juliets
    It’s a form of foreplay when you hear them say:

    “I’m not typical, and Simone? You are just cynical!
    I am better than you think, let me buy you a drink
    Cha’mon, I’m not so typical at all”

    All men are pigs
    All men are pigs
    All men are pigs
    I’ve seen their tricks
    They know their licks
    That get their chicks
    All men are pigs
    All men but me

    “I’m the swan that crashed on your lawn
    Yeah, I’m the boy that will heal you, fix you up”

    Because I’m not typical
    And Simone? You are just cynical!
    I am better than you think, let me buy you a drink
    Cha’mon, I’m not so typical at all

    All men are pigs
    All men are pigs
    All men are pigs
    I’ve seen their tricks
    They know their licks
    That get their chicks
    All men are pigs

    I am better than you think, let me buy you a drink
    Cha-mon, I’m not so typical at all

    All men are pigs
    All men but me

    1. SHG Post author

      Didn’t work out well for Judge Kopf, but then he has a sense of humor and the humorless prigs hate him for it.

  7. Anonymous Coward

    If I was a Wall Street big shot, I would be going full Pence, because the potential cost and damage of a sexual discrimination complaint is much lower than a sexual harassment accusation. Also in the current climate of immediately destroying any man accused of sexual harassment, one could claim a policy of strict separation is a business necessity to protect against accusation and destruction. The woke can howl all they want but this is the world they are creating.

  8. Morgan O.

    The real reason all the King’s horses and all the King’s men can’t put this together again is because PETA is blocking the stable doors, and the men are taking yet another mandatory class on discrimination.

  9. PseudonymousKid

    If it weren’t so damn draconian, there might be something to this #metoo thing. If women are insulted or assaulted or attacked or whatever, they should speak out. It’d would be great if that happened more often if it wasn’t happening before. However, there’s a broad spectrum of behavior that isn’t automatically worthy of the death penalty. In other words, fucking talk to each other and explain why the line should be where you think it should be.

    Yes, women can have it both ways if they want it, but they should stop murdering men if they want men to hang out with.

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