op-ed

For The Average Joe, #MeToo Is Still There

Steve Wynn’s sudden resignation as CEO of Wynn Resorts amid allegations of sexual misconduct is the latest in a long line of famous men who have lost their jobs as a result of the #MeToo Movement. The world is a better place without Wynn, movie producer Harvey Weinstein, Today Show host Matt Lauer, TV chef Mario Batali, music mogul Russell Simmons, Congressman John Conyers, and their ilk abusing their power to prey upon vulnerable women for sexual favors.

But what about victims whose sexual predators aren’t famous men whose misdeeds are exposed by major media outlets? Steve Wynn’s downfall, for example, traces to an investigative report by the Wall Street Journal that detailed numerous allegations against him. Unfortunately, women who are victimized by powerful men who aren’t “newsworthy” must depend on the government for help. I say “unfortunately” because government workers responsible for protecting employees from sexual misconduct in the workplace almost never do their jobs.

A recent incident from Ohio will illustrate how serious the problem has become. On January 9, 2017, a complainant filed a Title IX charge with the Cleveland Office of the Office of Civil Rights of the U.S. Department of Education (OCR) involving sexual misconduct at a university. In this case, a dean engaged in sexual misconduct with a student and an associate dean simultaneously engaged in sexual misconduct with a subordinate. The complainant had first tried to work through university channels but, as happens all too often, the university’s leadership was more interested in covering up the problem than addressing it.

On March 13, 2017, OCR transferred the case to the Cincinnati Area Office of the EEOC because of the employment retaliation component of the complainant’s Title IX charge. Significantly, the complainant also had reported to OCR that the university’s internal Title IX process was corrupted by conflicts of interest designed to cover-up the sexual misconduct. On June 29, 2017, the Director of the Cleveland Office of OCR assured the complainant that “With respect to the substance of your concerns below, we did in fact send the whole of your . . . complaint to the EEOC.”

The Cincinnati Area Office of the EEOC never addressed any of the Title IX concerns. If that weren’t bad enough, the Cincinnati Area Office addressed only one of the complainant’s multiple retaliation allegations, mishandled the one retaliation allegation that it addressed, and failed to learn about the existence of the EEOC Policy Statement that served as the basis for the non-retaliation component of the complainant’s Title VII charge.

Moreover, the EEOC Investigator’s November 8, 2017 preliminary findings letter to the complainant merely copied and pasted the university’s implausible position statement. It was devoid of any reference to the additional information the complainant had provided on September 28, 2017 and ignored the Title IX issue entirely (as did the university).

On November 20, 2017 the EEOC Investigator set up a November 29, 2017 telephone call with the Director of the Cincinnati Area Office to discuss the complainant’s case. Importantly, on November 19, 2017 the complainant had submitted a 15-page rebuttal to the university’s position statement that included 20 exhibits and 5 short audio clips. The Director of the Cincinnati Area Office admitted during the November 29, 2017 telephone call that she had not read the complainant’s rebuttal and pressured the complainant to “summarize” it for her. The complainant insisted that she read it. It was also clear to the complainant during that November 29, 2017 telephone call that neither the Director of the Cincinnati Area Office nor the Investigator assigned to the case knew that the dispositive EEOC Policy Statement existed.

The Director of the Cincinnati Area Office and the complainant spoke again on December 11, 2017, and it was again clear to the complainant that the Director didn’t know the facts of the complainant’s case, nor the law. Both the Director and the Investigator also harassed the complainant about submitting an amended charge that the complainant intended to file, even though the complainant told them (1) the complainant was dealing with a family crisis involving the death of the complainant’s father and (2) the complainant had 300 days to submit it. When the complainant eventually capitulated to the pressure to submit the amendment well prior to the deadline, the Director immediately informed the complainant that the Cincinnati Area Office was dismissing the complainant’s entire case after that office served the university with the amended charge. The complainant asked the Director why she was bothering to serve the amended charge if she was simply going to dismiss it. The Director failed to answer the question.

Revealingly, the complainant told the Director although the complainant sympathized, as the Director put it on December 11, with her office as having “a lot of cases and not a lot of people,” the Cincinnati Area Office still needed to do its job. Obviously, that office is not allowed to ignore facts and law simply because doing so will allow it to try to rationalize dismissing a complaint. Sadly, the goal of federal civil rights enforcement agencies seems to be to dismiss as many complaints as possible with as little effort as possible – the facts and the law be damned. Indeed, the Cincinnati Area Office failed to address the very retaliation issues for which OCR referred the complainant’s case to the Cincinnati Area Office in the first place and the Cincinnati Area Office also failed to deal with the Title IX delegation from OCR at all.

What makes this incident particularly troubling is how common it is, something that the Director of the Cincinnati Area Office essentially conceded. As a result, female workers who are preyed upon for sex by bosses who aren’t celebrities can only hope that Congress does what President Trump asked it to do in his recent State of the Union address: “Empower every Cabinet Secretary with the authority … to remove Federal employees who undermine the public trust or fail the American people.”

Scott Douglas Gerber is a law professor at Ohio Northern University and an associated scholar at Brown University’s Political Theory Project.


The views and opinions expressed in this commentary are those of the author and do not reflect the official position of The Daily Caller.