Manliness is Too Often Blamed for What Lawyers Have Done

Blaming men for being men gives a big pass to the legal system, as right now the prevalence of forced-arbitration agreements is smothering this #MeToo movement.

Forced-arbitration agreements have been deemed legal under contract law by many courts, as they are seen as employment contracts. To invalidate a forced-arbitration agreement someone must prove in court that one such agreement fails an arbitrary “unconscionable conduct” test—no easy thing to do.

Still, forced arbitration agreements are very common.

“Among private sector nonunion employees, 56.2 percent are subject to mandatory employment arbitration procedures,” reports Workplace Fairness, a nonprofit organization. “Looking at the size of the American workforce, this means that more than 60 million employees no longer have access to the courts in the event they have a workplace related issue.”

These legal agreements between corporations and employees keep a lot of complaints out of the newspapers and off cable television. Forced-arbitration agreements have thereby suffocated a possible public debate, a debate that would help us understand and address this important issue.

“The institutional answer [to this problem] is to abolish human resources,” said S.E. Cupp, a CNN host. “When the system for reporting workplace harassment involves informing the entity whose job it is to protect the company, victims lose. Independent and external boards are the only way to ensure victims’ safety and continued employment.”

Certainly, the first concern of a company’s human resources department is to protect the company. This is why so many use forced-arbitration agreements to stop employees from going to the legal system for a remedy. The trouble is this can put employees dealing with a bad CEO or other person in a senior leadership position at a disadvantage, which is a big reason why so many actors and CEOs, who might have been preying on the people they employed, were able to get away with all they allegedly did for so long.

Congress has also used administrative procedures to hush up staffers who’ve accused members of Congress of sexual harassment. Members of Congress even used a slush fund (taxpayer money) to pay victims for silence. Clearly, the bureaucracy and the legal tools used by corporations today are part of the reason why so many #MeToo complaints were silenced in America.

This legalistic climate has made not acting by far the safer option in almost every case. Action today is often punished. Even courageous government whistleblowers often get destroyed by the bureaucracy they speak up to cleanse. Not acting, in contrast, is rarely punished. You almost have to be an eye-witness to a rape who walked away without saying anything to realize consequences later. Even then in today’s legal climate you could get off by simply saying you were too traumatized to act. In these ways our legalistic society has created disincentives to be manly, to be men of action who do what’s right despite the potential costs.