Sexual harassment, as discussed on The Bob Zadek Show, is treated less as a workplace or campus harm in itself than as a legal and administrative problem: how the wrong of one individual is imputed to an institution, what procedures govern its adjudication, and what happens when federal agencies use funding conditions rather than formal rules to dictate those procedures.
Employment: Title VII and the imputation of liability
Richard Epstein began with the statutory framework. He identified two agencies: the EEOC, which enforces Title VII on employment, and the Office of Civil Rights, which enforces Title IX on discrimination in universities and schools. He noted that the school part cannot be ignored because issues arise with high school students as well. An Intellectual Discussion of Sexual Harassment with Richard Epstein (2018)
Epstein described the doctrinal development that followed decisions holding that sexual harassment could make a firm accountable. The question became under what circumstances the wrong of one employee against another is imputed to the firm or university that hired them. He said one could make a credible argument that harassment is sometimes prohibited and unauthorized by an employer who is horrified by the result, because bad employees ruin the business for their own private advantage. An Intellectual Discussion of Sexual Harassment with Richard Epstein (2018)
The notion became prevalent that liability could be mitigated if the employer had a program designed to detect and correct sexual harassment before it occurred. With two administrative agencies in place, Epstein said, what used to be a mitigating event or circumstance in an individual case became a requirement. An Intellectual Discussion of Sexual Harassment with Richard Epstein (2018)
On the employment side, Epstein described the dynamics as complicated but different from the university setting. It is widely understood, though not widely stated, that when a woman who is an active part of her career makes a strong claim of sex discrimination, the case typically arises after she has been fired or demoted, and it is extremely difficult to get another job because no firm wants to hire a lawsuit. Many such cases are brought only after somebody has retired. He cited the Lilly Ledbetter case as raising the question whether a statute of limitations could be brought against a case charged twenty years earlier; the case held it had to be brought when it accrued, and new statutes give a very long time horizon, making defense difficult. An Intellectual Discussion of Sexual Harassment with Richard Epstein (2018)
Epstein also described sexual harassment claims being added into sex discrimination cases, and said that conduct at a Christmas party where alcohol is served can come back to haunt everyone in the transaction should there be a promotion or dismissal. He concluded that in the three to seven years since the Obama letter of 2011, the issue had become much larger in both contexts. An Intellectual Discussion of Sexual Harassment with Richard Epstein (2018)
The 2011 “Dear Colleague” letter and campus procedures
Epstein called the 2011 “Dear Colleague” letter from the Obama administration the most conspicuous version of agency requirements. He said it required, by way of administrative guidance, that universities follow a detailed protocol put together by the Office of Civil Rights. It would require that people not be cross-examined when they make allegations, and that the burden of proof be not clear and convincing evidence but only a bare preponderance of the evidence. He said the guidance had been suspended, but that in the interim vast establishments to deal with the situation had come up. An Intellectual Discussion of Sexual Harassment with Richard Epstein (2018)
Bob Zadek emphasized the letter’s form. He said it was simply a letter, not a rule, sent to colleges and universities receiving federal funds, and that by its terms it could not compel anything. But when the agency dispensing “oodles of money” sends a letter, it gets more attention than a flyer advertising a new product, so the letter de facto had the force of law and universities changed their behavior profoundly. He described an air of compulsion: universities were told that unless they did the following, their federal grants might be in question. An Intellectual Discussion of Sexual Harassment with Richard Epstein (2018)
Epstein agreed and placed the development in the history of administrative law. Guidance has formal and informal uses, and nobody doubts its use to reduce uncertainty—telling businesses which form to file, which headings and sections to use, which office to file in. Businesses like guidance that reduces uncertainty without imposing additional obligations. But starting around 1995, first with the Food and Drug Administration and then carried over to this area, guidance took on a different tone: grants might be in danger unless universities set up administrative tribunals following specified rules. Because it is not a law, there is no notice and comment, and the thing is done by administrators without political constraint. The threat to pull a grant is much more powerful than the threat to sue, because a university with a couple hundred million dollars in grants in its biological and medical science division cannot risk losing the whole thing. An Intellectual Discussion of Sexual Harassment with Richard Epstein (2018)
Zadek connected this to a broader theme, saying that at the root of many shows over his eleven years on the air is the federal government using its strong economic power and the withholding of federal dollars to impose its will on universities, employers, states and localities. He drew a dotted line back to the income tax and the 16th Amendment, saying that without the power to collect all this money, the “Dear Colleague” letter would not have had the power it had. An Intellectual Discussion of Sexual Harassment with Richard Epstein (2018)
Quasi-criminal proceedings and due process
Epstein described most universities before the guidance letter as having an amalgam procedure somewhere between civil and criminal procedure. The reason is that a finding of harassment brands a person for life: expulsion can follow, the ability to reestablish a career elsewhere becomes impossible, and professional licenses or the ability to practice medicine or law may be lost. But the person is not going to jail, so universities split the difference, which is why they used the clear and convincing evidence standard—less than beyond a reasonable doubt and more than a preponderance. The guidance changed this to a bare preponderance. An Intellectual Discussion of Sexual Harassment with Richard Epstein (2018)
Epstein explained the practical consequence. In most campus sexual harassment cases, the matter is a “he said, she said” operation: he says there was consent, she says there was not, it is done afterwards, and there may have been a conversation with a roommate. Under clear and convincing evidence, the case dies; under a bare preponderance, it is anybody’s guess. He noted that sex is always in the background beforehand—a couple may have had relations at a previous time, she may have initiated it this time and then said to stop—and the older view was that if a case is that difficult, it should not be used as an expulsion device; instead, the students would be talked to, separately or together, to smooth over a difficult patch, with incremental adjustments to university rules. Once the Civil Rights Office came in, the balance of power shifted. An Intellectual Discussion of Sexual Harassment with Richard Epstein (2018)
Epstein recalled a panel where defenders of the current rule argued that a woman whose claim is wrongly rejected suffers grievous harm just as the wrongly convicted suffer grievous psychological harm, and that since the harms are about equal, only a preponderance standard should apply. He said this misses the enormous uncertainty brought into the system. He described having worked on such cases: a finding can mean suspension for a year or expulsion, and a foreign student may lose a visa and have to go home. The collateral consequences are administratively and publicly enforced. He also said that sometimes administrators impose penalties even the victim did not request, taking a case one step further after the parties thought it was worked out. An Intellectual Discussion of Sexual Harassment with Richard Epstein (2018)
Epstein said the inability to cross-examine an accuser is systematically denied in these provisions, even though confrontation is generally regarded as a constitutional right in ordinary proceedings, and that a student could not have a lawyer hired to speak for that student, though somebody might be in the room. He raised the composition of panels, which tend to be ad hoc and are not confirmed like federal judges; some universities assemble fair and dispassionate panels, others the opposite, and quality differs widely. He noted that universities, having to put elaborate programs into effect, tend to hire many people formerly associated with the OCR or the EEOC to run them, and these people have a built-in incentive to keep the structure alive. Many universities kept their procedures even after the 2011 letter was no longer the guidance document. An Intellectual Discussion of Sexual Harassment with Richard Epstein (2018)
Epstein called these quasi-criminal offenses and said the need to keep standard protections against Star Chamber procedures is very much in play. He described being tasked at the University of Chicago thirty years earlier to organize the handling of allegations of academic fraud, where ad hoc adjustments by deans and department heads had produced serious miscarriages of justice. The system they built resembled a slimmed-down criminal trial: notice, charge, opportunity to speak, careful appointment of panels, careful administration of sanctions. He said he would like to see the same protections in sexual harassment cases. He also said the constant insistence on a judicial right has made it harder to have informal adjustments, and that once procedures are available and somebody can unilaterally avail themselves of them, informal mechanisms of social control are harder to put in place. An Intellectual Discussion of Sexual Harassment with Richard Epstein (2018)
Private resolution and the market
Asked to put on his economics hat, Epstein distinguished two kinds of markets. The reputational market is very erratic, particularly now where an allegation, even if unverified, can produce dramatic results. But once firms and universities are aware of the problem and do not have the federal club over them, they could develop internal procedures that handle these things pretty well. He said he favors private resolution processes over the alternative, as he does for labor disputes on unionization, salary and similar issues. That approach is heavily foreclosed so long as there is a strong civil rights law in the area, and universities trying to get the right balance can be sued if they do something that does not meet federal standards, so they lack the flexibility they need. He welcomed the recent decision by the Attorney General to cut back on the use of guidance documents for enforcement purposes as a first step, and said what is needed is not broad reputational sanctions but quasi-adjudicative processes that work better than the ones now in place. An Intellectual Discussion of Sexual Harassment with Richard Epstein (2018)
Across episodes
The topic appears in two episodes, the 2018 discussion with Richard Epstein and a 2022 conversation between Bob Zadek and Joe Cohn. The 2022 excerpt is a summary rather than a transcript: it states that the two discuss the erosion of due process rights on college campuses regarding sexual harassment and Title IX allegations, and that they trace the history from the 2011 “Dear Colleague” letter to formal rulemaking under the Trump administration and subsequent rollbacks proposed by the Biden administration, highlighting the dangers of the “single investigator” model and the lowering of evidentiary standards. Do you know your rights? (2022) Because the excerpt supplies no statements by Cohn and no development beyond this summary, the excerpts do not show a substantive arc between the two treatments.
What the sources do not cover
The excerpts do not state the outcome of the Lilly Ledbetter case beyond the statute of limitations point Epstein attributes to it, nor the name of any bill or the amendment on which any case turned. They do not give the founding date or principle of FIRE, Joe Cohn’s title or field, or any statement by Cohn himself. The 2022 excerpt ends as a summary, so the specifics of the Trump-era rulemaking and the Biden rollbacks it mentions are not available here.