Don’t Harass, And The Ficus Rule

About five years ago, a mind-numbingly moronic “response” was written to one of my posts about questioning the untethering of the word “rape” from any cognizable definition with the simplistic admonition that if one didn’t want to be accused of rape, “don’t rape.”

It was written by a young lawyer. Not a bright one, but a lawyer. The subtext was quite surprising to me, as it was hard for me to fathom any lawyer being so vacuous as to not be capable of grasping that not doing something required that something to be objectively defined. I was so naive back then.

I suppose there were plenty of lawyers who shared this depth of intellectual incapacity, but they were pressured by norms of intelligence to keep it to themselves and not reveal to the world they were, well, dumb. For the sake of law students, remember that they all passed the bar exam, which conclusively proves anyone can pass the bar exam and it’s not worth stressing over. It’s not hard.

With this in mind, a survey came across my radar confirming, yet again, the obvious and natural offshoot of the #MeToo hysteria.

Our latest research shows that men—particularly those in senior roles—are pulling back from interacting with women at work, depriving them of the formal and informal mentorship that can aid in networking, securing new opportunities, and promotions.  To learn more, we asked over 5,000 people about how their employer addresses sexual harassment and how safe they feel at work.

Last year, we partnered with LeanIn.Org to research worker’s comfort interacting with other genders in the workplace and create a benchmark for future change. This year, we replicated the study to see how attitudes might have evolved. The short answer? Men are more hesitant to work one-on-one with women than ever.

That partner piece is interesting, as it reflects the non sequitur that prances on rainbows:

Mentoring women is not only the right thing to do, but it’s also sound business sense. More women in power will create better employee policies, better business results and less sexual harassment.

Of course it’s the right thing to do, but that’s no more useful than “don’t rape,” and that it comes from Sheryl Sandberg protege and Survey Monkey CEO Zander Lurie, I suspect it’s nothing more than empty virtue signalling, because it’s hard to imagine he’s that shallow. Then again, I’m naive, so I could be wrong.

But this survey didn’t involve rape, but “harassment,” which has become the ubiquitous word to refer to conduct a male should not do to a female. The only problem is that nowhere in the post about the survey is the word defined. As an aside, when the judiciary was writing up its new rules to soothe the fevered brow of the unduly passionate former law clerks, I kept looking for a footnote providing the definition of “harassment,” and found none.

Note that I keep putting the word in scare quotes. The reason is that the word is scary. It’s scary because it’s a really bad thing that can do enormous damage. It’s scary because no one can state what the hell it is.

Does this limit or inhibit job growth for women? Of course it does. And of course it’s wrong. Whether it rises to the level of employment discrimination is another matter, as no one is entitled to “interaction outside of work” with colleagues, although if it happens, but only for male employees, it may very well be a Title VII violation. If you don’t want to violate Title VII, or risk a violation, then the choice is plain: don’t engage with anyone, male or female, outside of work. It’s a bad solution for a manager, that does nothing to help others, but it’s the safe answer.

Accepting the premise that mentoring others is a good and important thing, and it is, to refuse to do so is counterproductive, selfish and defensive. But it still fails to provide any guidance to men or limits to women. Not long ago, a federal judge informed counsel during oral argument not to use the word “hysterical” because it was sexist, as the judge just learned from his law clerk. Before that, I was admonished never to call a woman “unhinged” because it was oppressive. It’s not that women can’t be unhinged, but that you can’t say so.

Was this the bar for harassment? If we never use the word “hysterical” and never call an unhinged woman “unhinged,” then there will be no reason to fear that some entirely not unhinged woman will accuse a guy of harassment? Or is it what Ken White says, all about the ficus?

It’s like all of a sudden I’m expected just to KNOW, LIKE MAGIC, whether it’s okay to whack off into a ficus during a performance review. Feminists have destroyed the American workplace.

In fairness, I have made the decision not to let any of this alter my course of mentoring young lawyers without regard to sex. It’s not because of my ability to resist the allure of the ficus, but that I have no concerns about anyone dropping a #MeToo dime, as I have no one to answer to save myself. Or to be blunt, I’ve been accused of everything under the sun already, and just don’t give a damn. But then again, I pick the lawyers with whom I work carefully, as I’m disinterested in squandering my time on fools.

To the extent there is any meaning in the word “harassment,” it’s don’t do anything that makes a woman feel uncomfortable. it’s impossible for people who work in an organization, where fear of accusations of harassment drive career decisions from above, to be certain that their best efforts and best intentions will not, for reasons they may never quite know or understand, make some woman feel offended or unsafe.

If the bar involves ficus trees, then we need only rid the workplace of flora (assuming, in an over-abundance of caution, that any tree will do). But maybe Ken was being overly optimistic, just as I tend to be overly naive in my belief that lawyers aren’t quite as dumb as to believe saying “don’t harass” solves the problem.

20 thoughts on “Don’t Harass, And The Ficus Rule

  1. Bear

    I suppose artificial plants could pose a problem making the “ficus rule” or “flora rule” untenable.

  2. Guitardave

    ” More women in power will create better employee policies, better business results and less sexual harassment.”

    Vapid myopic sexist bullshit. Every bit as full of shit as replacing the word women with men. ( but of course, we KNOW that men in power doesn’t work…. just look at this mess!)
    How many more times do these simpletons have to change the curtains before they realize that ALL humans are flawed? … And that there’s a distinct possibility that tilting the table in favor of women (or any other exterior decoration), could lead to something equally as bad, or Goddess forbid, worse, as the bad, bad men have done? They just don’t……blah, blah….sigh…( too many ‘when the fuck are you gonna wake up’ songs…u pick one..)
    PS: Jeez…i think i’m channeling you this morning..

    1. SHG Post author

      I’ve never known a defendant to feel better about being sentenced to life in prison by a woman judge than a man judge, even though they’re far more empathetic and would make the world much better if only they were in control rather than us shitlords.

  3. Richard Kopf


    Harassment is like obscenity, I know it when I see it. For a free consultation about the use of the ficus as seminal receptacle during interactions in the workplace or any other potential workplace harassment issue feel free to drop me a line. I will consult my obscenity detector which I have now reconfigured to detect harassment also. It is actually now known as the Harassment-O-Matic 1000, patent pending.

    All the best.


    PS This comment has nothing do with Law Clerks for Workplace Accountability in particular or law clerks more generally, absolutely nothing. Not one damn thing. Are we clear?

      1. Richard Kopf


        My guild will not allow me to answer.

        However, I can tell you that I mourn the absence of spittoons. It has been suggested that they are a symbol of the patriarchy. I don’t understand that untrue slur. Women chew too. At least some do out here in cowboy country.

        All the best.


        1. SHG Post author

          After smoking was banned in courtrooms, a judge in Manhattan used to stand in the doorway to his chambers from the courtroom rather than sit on the bench and smoke. I always wonder who would stop him if he just sat on the bench and smoked.

          1. Richard Kopf


            Don’t rat me out. I still smoke my pipe in my office. GSA leaves me alone. My robe has hole in it from a stray bit of burning ash.

            I railed against prohibiting jurors from smoking in the courthouse. We had a room where they could indulge with an air scrubber that worked reasonably well so that the others in the courthouse would not have to smell smoke (at least very much) That wasn’t good enough because a few complained, falsely in my view, that they could still sense the nasty odor and even those few molecules made them sickly. BS. Cowboy up was was my view. We ought to be easy going enough to accomodate jurors who smoke and are hailed into court upon pain of jail.

            Those who smoke are harrassed. But I doubt that harrassment prohibitions apply to those few who still violate the sensitivities of those who claim all sorts of imaginary maladies from the stain of smokers.

            Yes, I, sorta, deny climate change too. But that’s another rabbit hole into which I should not now dive.

            All the best.


            1. SHG Post author

              Last week, while walking down the street in Seattle with my wife and son, we passed a young man smoking weed from a bong. Thankfully, he would avoid arrest because it wasn’t tobacco. Progress.

  4. Hunting Guy

    Seems to me that the #metoo folks didn’t learn much in Sunday School.

    Galatians 6:7

    For whatsoever a man soweth, that shall he also reap.

      1. Hunting Guy

        That’s why I chose that version instead of one of the non-gendered quotes.

        I’m a shitlord in my own way.

        1. SHG Post author

          Which makes me wonder whether other readers here appreciate the ironic use of the word “guy” in your commenting handle.

  5. Steve Brecher


    It is not intuitive, but “non sequitur” is a (Latin) phrasal noun that is not hyphenated.

  6. L. Phillips

    So now we are supposed to genuflect before something called Survey Monkey? Which brings to mind a deadpan comment made by a friend, who was also our county coroner, at a leadership conference we were both forced to participate in.

    He stood and prefaced his presentation with, “First, you should know that 47.9% of all statistics are made up on the spot.”

  7. B. McLeod

    This could explain why so many people prefer ficus plants to the candidates offered by the established political “parties.”

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