Barbara Howard: The "Me Too" movement is showing no signs of slowing down, with women coming out with allegations of sexual misconduct against prominent men from many walks of life. It seems like there's a new one each day. But could there be a backlash brewing? One former federal judge, a self-proclaimed feminist, Nancy Gertner, says that the ‘Me Too’ movement is running the risk of getting pushback. Judge Gertner is with me now in the studio to talk about it. Thanks for coming in.
Nancy Gertner: Good to be here.
Howard: What does ‘Me Too’ mean? Does that mean you were physically sexually assaulted? Does it mean you were raped? Does it mean somebody said something that you found offensive, but they didn't intend for it to be? How do we define what "Me Too” means?
Gertner: Well that's right, there's a continuum of conduct here, but what is challenging here is that even the most extreme sexual predation was kept under the rug. And so, I understand this reaction completely, but there is a range that goes from what Weinstein is accused of doing, on the one hand, to dirty jokes on the other.
Howard: And if a dirty joke can deep-six a man's career, there's going to be a backlash.
Gertner: Well what I worry about is that the further we get to that side of the continuum that the backlash here might be, 'Well maybe I don't want to hire women because these issues are going to come up.'
Howard: Is there a chance that conflating real bad stuff — the rapists — with an offensive remark made, that it somehow diminishes the really seriously bad stuff?
Gertner: Well it could immunize it. In other words, one of the things that, for example, President Trump said after the "Access Hollywood" tape, was that this was locker room talk, as if that was OK. And the more locker room talk from more prominent men that we surface, what I fear is it will immunize those who shouldn't have talked like that to begin with.
Howard: The vast majority of women in these situations, if they're lucky, they get to settle and nothing changes, is what I understand.
Gertner: And the settlements are confidential, so other women don't have access to them. Even those people have sued — the law has not been particularly helpful. Eighty percent of civil rights cases of all kinds fail in federal court. Many of the women in the Trump case and Weinstein case and Charlie Rose [case] actually had no other place to go. The statute of limitations will have run. These are not necessarily people who were employed, and the best setting for dealing with sexual harassment and sexual abuse is in an employment setting because we have rules about it. The campus situation has Title 9 protections for women students. So what's interesting about these accusations is that many of these women had no other place to go, but the front pages of the newspapers or CNN.
Howard: In recent days, there have been quite a few men who've been removed from their positions at work based on — nobody knows.
Gertner: How much of this is played out in the public is one thing, but you would hope that they would know the accusations against them. You would hope that before anything is announced, there is an investigation. And you would hope that if the investigation proves that these were unfounded, that they come back.
Howard: Some of the local cases — Leonard Lopate in New York City and others — it seems as though people were unaware of any kinds of problems until the institution made it public before an investigation.
Gertner: Right, that is problematic. That's very troubling, because it was certainly available for the institution to do their own investigation before someone is publicly shamed, which is really what this is.
Howard: So what happens, though, when the investigation concludes and the person who was accused is found in the clear — but their reputation, how did they get that back?
Gertner: Very difficult. Usually the accusers, oftentimes, the accusers’ identities are kept confidential. So how do you get cleared of something like this where one side is known and the other side is confidential?
Howard: Isn't there a right to face your accuser?
Gertner: We're dealing in a lawless zone here. We're dealing with naming and shaming. We're dealing with people who are making accusations in public and not in a court of law. So the obligation to fairness is the obligation that the companies may feel, but not necessarily anything that the law requires. I suppose there could be a counter suit if someone is exonerated for defamation or whatever, but one way of looking at this — and I'm ambivalent, I mean, you're hearing my ambivalent in my comments. One way of looking at this is it this is a swing to address really horrific kinds of abuse, namely Weinstein and even Charlie Rose, etc. And it's a swing in one direction and there are bound to be casualties when that happens. And the question now is how do we swing back so that we have a more appropriate response. That's what I think is going on. You have people being swept under this bus because for years, it has been kept quiet. So it's not an inappropriate reaction to that, but I wonder if there shouldn't be a corrective, too.
Howard: Thanks so much for coming in.
Gertner: Thank you.
Howard: That's retired federal judge Nancy Gertner.