[dalke]

Your statement "The review systems of private institutions..." is overly limiting as public institutions are the same. Sexual harassment, like racial discrimination, ADA violations, etc., fall under EEOC guidelines, and apply to both public and private institutions. (Note: as this case wasn't an employer/employee relationship, the EEOC doesn't apply, but you are making a very broad claim.)

For example of confidentially as part of the resolution process in a public organization, see the EEOC's own internal resolution guidelines at http://www.eeoc.gov/federal/adr/resolvehandbook.cfm .

You are right that the court decisions are nearly all public.

Bu to be clear, you want every investigation of a violation of internal policies to be public? Including things that aren't illegal, like plagiarism, or drinking on the job when internal guidelines prohibit it, or not following the dress code? Or is there something about this case which is special, and if so, what?

In the case of EEOC-related topics, your advice seems to be contrary to what's regarded as best practices.

You also seem to want an entire new level of government rules and oversight. For examples: What's the publication system for those decisions? Who can access them, and for how long are they made available to the public? Are they required to be in English? Can anyone start a internal proceeding or is it limited to managers? Or to the CEO? What about customers and students? In the courts, the plaintiff can be anonymous, as it was in Roe v. Wade. Does the same hold for publishing internal cases? In EEOC guidelines, invalid accusations made in good earnest are protected from retaliatory action, including requirements for management to prohibit retaliation from co-workers that find out about the issue. Does the same hold for the now-public internal investigations? Do other employees have a right to refuse to make a statement they know will be public, and who has the responsibility for preventing the use of this resolution system as a fishing expedition? Which government authority has oversight over the process? What are the penalties for an organization which refuses to publish their internal investigations?

Really, a requirement that all these proceedings be public seems open for a world of pain, and I don't see what the benefit is, given that it's ripe for abuse. If a hundred Global Warming Deniers send 5 complaints each about the corrupt practices of a climatologist, then is the employer (like the court) required to publish all of the false claims and make an investigation? Your proposal makes things less susceptible to public judgement because ... why?

[lmm]

> For example of confidentially as part of the resolution process in a public organization, see the EEOC's own internal resolution guidelines at http://www.eeoc.gov/federal/adr/resolvehandbook.cfm .

Interesting, I shall have to read more. But that document seems to be about negotiated resolution prior to a formal complaint, and explicitly disclaims any findings of right or wrong - if we're making analogy with the legal system it seems to correspond more closely to the settlement/plea bargaining stage (which is confidential).

> Bu to be clear, you want every investigation of a violation of internal policies to be public? Including things that aren't illegal, like plagiarism, or drinking on the job when internal guidelines prohibit it, or not following the dress code?

Sounds right to me. That would make it easy to e.g. explain to a subsequent employer that the reason you don't have a reference is only that you violated the dress code, or conversely if you really had been fired for major misconduct you couldn't bluff that away. Transparency is better for society.

> Or is there something about this case which is special, and if so, what?

I think the very public announcement from MIT changes things; in the "ancestral legal environment" someone who was fired for misconduct would, at worst, leave town and be able to continue their life elsewhere. But I think in the longer term that's where society is headed - once you can instantly look up even obscure bits of background of anyone you meet, maybe different legal standards are appropriate. (Alternately, elsewhere in the thread someone claimed that this announcement opened MIT up to a defamation lawsuit if a jury wouldn't agree that what he did constituted sexual harassment. Maybe that's an adequate check, and nothing needs to change.)

> You also seem to want an entire new level of government rules and oversight.

Yes I do. I think the angry public of the internet has become a powerful weapon that can destroy lives, and new regulation is appropriate.

> Really, a requirement that all these proceedings be public seems open for a world of pain, and I don't see what the benefit is, given that it's ripe for abuse. If a hundred Global Warming Deniers send 5 complaints each about the corrupt practices of a climatologist, then is the employer (like the court) required to publish all of the false claims and make an investigation?

We have those kind of issues already with e.g. FOIA requests. They don't seem to be insoluble.

[dalke]

What do you mean by "formal complaint"? Writing a letter to HR? Contacting the EEOC for advice? Having EEOC talk with your company? None of those need be public.

The goal for alternate dispute resolution methods is to avoid the full machinery of the courts, which is expensive and takes time. Nor do I agree with the "if we're making analogy with the legal system" .. courts like ADRs as well, for the same reason, and according to http://en.wikipedia.org/wiki/Alternative_dispute_resolution "some courts now require some parties to resort to ADR of some type, usually mediation, before permitting the parties' cases to be tried"

So if we're making the analogy with the legal system, then confidential mediation for workplace problems corresponds to confidential mediation in the court system. There's no need to compare it to settlement/plea bargaining.

There's no way a jury would be involved. The specific complaint is "MIT policy on sexual harassment was found to be violated." MIT's policy could be stricter than the bare minimum required by EEOC or Title IX. Do you really want external juries to decide what internal policies mean?

You have a very romantic and false view of what the old days were like. Blacklists have been used since at least the late 1800s to fight unionization, and the Hollywood blacklist prevented people who were believed to be sympathetic to communistic causes from working. This was all pre-internet, and pretty much at the start of the time when people could 'leave town and be able to continue their life elsewhere'.

As a specific example, my g'grandfather left his wife in the US and got remarried in Canada - without divorcing his first wife. Eventually work got around that he was a bigamist, and he was arrested and jailed.

(And woe be a German speaking member of the Amish in New York in the 1700s, or a black slave in the south, or a serf in feudal society! Really, your 'move to another town' view of our ancestors was until recently only really possible for the privileged few.)

You assert that "Transparency is better for society". You have no evidence for your beliefs. While I have evidence against it. A transparent society can't work when there's a power imbalance. The list of mining company owners is public, but the unionizing workers had no power over them. Publishing the blacklist wouldn't change anything. In NAACP v. Alabama, the employee list of the state of Alabama was public, but the membership list of the NAACP was not. The courts wrote:

> "Immunity from state scrutiny of petitioner's membership lists is here so related to the right of petitioner's members to pursue their lawful private interests privately and to associate freely with others in doing so as to come within the protection of the Fourteenth Amendment"

Making that membership list public would certainly have lead to retaliation against the members. Your call for a transparent society is, quite literally, un-Constitutional and would break that "ancestral legal environment" that you praise elsewhere. Plus, you want to abolish medical privacy and other laws we already have, like the Video Privacy Protection Act put into place after Bork's video tape rental history was published for the world to see.

You mention FOIA requests. You do realize that FOIA requests can take years to resolve, right? If someone is violating workplace rules (let's say a ban on drinking caffeine at work), do you really think that a multi-year process, with recourse to the equivalent of a defense attorney, is appropriate before being able to carry out any corrective action?

Also, FOIA requests are not made public, and don't contain accusations. You propose that every single claim be made public, yet somehow believe that won't be used to bring the "powerful weapon" of the internet to bear on innocent people?

Could you at least try to answer my questions? Since I feel like all I'm getting from you is unsubstantiated belief, with no understanding of the difficulties, or the historical realities. It comes across like you are from a privileged position in life, eg, as a member of a majority ethnic, religious, etc. group which has never had to worry about how public knowledge of who you are can lead to social ostracism or physical punishment.

[lmm]

> "some courts now require some parties to resort to ADR of some type, usually mediation, before permitting the parties' cases to be tried"

Yes, and I think that represents a great threat to justice, for the same reasons. If courts are too slow and expensive, let's address those problems directly, not throw out the whole court system.

> Do you really want external juries to decide what internal policies mean?

Maybe. A jury of ordinary people provides an important sanity-check on the law. If the policy relies on some abstruse definition of sexual harassment that goes against the common-sense meaning of the term, maybe it's a bad policy.

> Really, your 'move to another town' view of our ancestors was until recently only really possible for the privileged few

Do you argue that electoral fraud doesn't matter because until recently the vote was only granted to a privileged few? The right response to privileges is to extend them to everyone, not to weaken them.

> Making that membership list public would certainly have lead to retaliation against the members. Your call for a transparent society is, quite literally, un-Constitutional and would break that "ancestral legal environment" that you praise elsewhere. Plus, you want to abolish medical privacy and other laws we already have, like the Video Privacy Protection Act put into place after Bork's video tape rental history was published for the world to see.

You're putting words in my mouth. Yes, there are counterpressures, specific cases where opacity is necessary to society. But secret laws and secret courts are among the deepest horrors of totalitarianism.

> You mention FOIA requests. You do realize that FOIA requests can take years to resolve, right? If someone is violating workplace rules (let's say a ban on drinking caffeine at work), do you really think that a multi-year process, with recourse to the equivalent of a defense attorney, is appropriate before being able to carry out any corrective action?

There were times when we said things like "better a thousand guilty go free than a single innocent be wrongly convicted". When you're talking about "corrective action" with the kind of impact on someone's life that this public firing will have, yes, I do think that the basic rights to due process, legal representation, and one's day in public court are appropriate. If you can't provide that without a multi-year process, the problems are with your process, not the responsibility of the accused.

> You propose that every single claim be made public, yet somehow believe that won't be used to bring the "powerful weapon" of the internet to bear on innocent people?

Not at all. I just want to know the actual judgement of facts. I think that's vital to the public interest.

> Could you at least try to answer my questions? Since I feel like all I'm getting from you is unsubstantiated belief, with no understanding of the difficulties, or the historical realities. It comes across like you are from a privileged position in life, eg, as a member of a majority ethnic, religious, etc. group which has never had to worry about how public knowledge of who you are can lead to social ostracism or physical punishment.

Oh, come off it; I'm engaging, you're just dismissing the opinion of anyone you disagree with. Did you copy-paste that?