He's apologized, sort of, in a way that leaves you wondering whether it bothers him much at all. Not surprising, that's not good enough for those whom he has offended. They want specifics. But in public, that's water that both sides would be wise to tred gently.
This sticky, difficult road is walked by millions every day. Sex, after all, is what lends energy to many situations, even ones where no one wants to admit it. Nuances beckon. Some men and women are very good at observation, some men and women are rather offensive. (Don't stereotype.) So, too, with certain forms of commentary and tones of voice.
We need venues to hash these things out, largely because people become uncomfortable, especially at work. Surprisingly, the federal court system is attempting to create one.
What's that, you say? Well, yes. The courts are filled with (mostly) old white men who hire clerks to help them. Some of these clerks are women. Some of them are very attractive and dress so. Many are young and unmarried. Much of that is ripe for fantasy that, if not called out, can lead to disaster or, at the very least, embarrassing misunderstandings. They're as human as anyone else.
A person can feel bullied if she or he doesn't respond in a way that's expected, knowing that there are certain things that will go unmentioned, but shouldn't. The best interests of justice are thus not served, ironically, in a place where justice is supposed to take top priority.
But that's all in a vacuum. Clerks are aware of who hired them, and they want to please. They might tolerate comments and actions (e.g. ogling) that would otherwise evoke a deserved response, largely because they have goals and aspirations that might easily be dismantled by a bad recommendation or even a tepid one. In a perfect world, that wouldn't matter.
So how can someone deal with approaches that she/he feels, or knows, is inappropriate without going too far or flat-out embarrassing herself or someone else? Any accusations also unleash rumors within denials. It lights up a whole office sometimes, and serves as a lasting, halting distraction.
The Brennan Center for Justice held a Zoom conversation last month to discuss this very phenomenon. It can serve as a guide for other governmental situations and larger corporate venues. Certainly, it will have to involve more places for more discussions and more spending, because more personnel or more hours will be necessary. But as in nearly all things, spending upfront in terms of time and energy, not to mention money, usually results in much lesser spending down the road.
Margaret McKeown, an appellate justice in the 9th District, is on a committee gathered by none other than Chief Justice John Roberts to investigate these above situations in the federal court system. She spelled out a process that's been recently begun, starting with the Office of Judicial Integrity, which was created to deal with possible harassment claims.
McKeown said that a three-tiered system has been established to stem what she called "abusive and bullying behavior." She also, upon investigation, found that clerks prefer that someone "within the system" be involved in getting to the bottom of cases. She outlined three levels of reporting:
- Informal--just having a conversation off the record and anonymous, "someone to talk to;"
- Assisted resolution with a trained mediator; and
- Formal complaints, with a hearing and/or trial
That system is to be buttressed by training with staff and judges, especially new judges, to draw lines that should be strictly observed thus heading off problems before they develop. This is assuming, of course, that
- No previously established relationship exists between the two; and
- Any suggested relationship would be rejected, clearly and permanently.
I like the approach. The person who receives the informal complaint can ask whether he/she should report the conversation, again anonymously, to the judge (presumably) who's being accused of improper conduct (What if it's the other way around? Possible? Hmmmm.). It seems to me that if there are misunderstandings or incorrect assumptions made by either side, they can get clarified without embarrassing anyone.
It's still largely (I know, I know) a man's world out there, and some male judges have wives at home, or perhaps no one at home, who might not, because of accepted habit, bring them up short. Such a private conversation might take care of that, especially if the accuser accepts that her comments won't be directly quoted. And sometimes she/he just needs someone to listen. Any way you look at it, no harm, no foul. A subtle, pointed, quiet report might just head off a growing problem.
But it might not work, which is why the second level exists. That represents a big leap in attention; someone must be pretty angry by that time. Then people will have to sit in separate rooms while a mediator goes between them (this is the way it works; I've done training) and names are named and people know.
That will cause some embarrassment, so the accused has to be sure, probably must have done some documentation (which the informal meeting will probably engender. The facilitator might easily suggest that; in my work in union grievances, I always advised to "document, document, document"), and needs a promise to discontinue some practices in writing (which is also the result in mediation, if only between the parties).
The third step is applied in case of a real mess, the open, press-covered hearing in which nobody wins. I would think that the two previous stages represent reasonable options to avoid the third, but you never know. And that's exactly the point: Maybe these things can be reasonably resolved without going to that extreme, where lawyers are utilized openly and accusations are flung and reputations smeared forever.
This is just getting started, so no reports are in on success. But creating a structure for exploration of issues usually draws needed attention. I hope the Brennan Center has a follow-up of results.
I'm betting Andrew Cuomo would have welcomed such an approach. It's too late now, of course: He's now being vetted for impeachment. Whether it happens or not, the process has been messy and rife with posturing. People deserve more dignity than that.
Maybe New York State, too, can come up with a methodology to deal with these accusations better than it has. No matter where it happens, the taxpayers have a right to expect it.
Be well. Be careful. Wear a mask. With some luck, I'll see you down the road.
Mister Mark
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