Sexual Harassment and Due Process

Harasser may not be due ‘due process’

Is an elected official who  allegedly “sexually harassed” more than a dozen women entitled to job protection?

That seems to be the ludicrous debate in San Diego right now. A group of supporters  are demanding due process for Mayor Bob Filner, who admits engaging in “intimidating contact” toward women over a period of years.

Filner was scheduled to return to work at City Hall on Monday after undergoing two weeks of “behavioral therapy.”   He didn’t show and is said to be  negotiating the terms of his departure with city leaders.

Normally, one thinks of due process in a criminal context.   For example, criminal defendants are entitled to a hearing on bail and to have  an attorney appointed to represent them under certain circumstances.

Due process is not an automatic right in the employment context, unless the worker is protected by a  contract or a union agreement.  The American concept of “at will” employment holds that a worker can be fired for any reason as long as it is not an illegal reason (e.g., sex or race discrimination).

Filner, 70, has not been charged with a crime –  though maybe he should have been.

If the allegations against him are true, his conduct could  arguably rise to the level of  an  assault and battery or an aggravated assault with respect to at least three of his victims.

According to The Los Angeles Times,  Filner allegedly forcibly kissed two women and groped a female staffer.

America treats sexual harassment as a civil rights violation, rather than a crime.  The victim’s  redress  normally Is limited to filing a lawsuit seeking monetary damages against the harasser.  But many of the behaviors that constitute sexual harassment – especially the part that involves physical contact –  also fall within the realm of criminal statutes.

If  you don’t think that sexual harassment should be a crime – imagine having a person who is  more powerful than you are  forcibly jamming his tongue down your throat or pinning  you against a wall to lick your face.

Attorney Marco Gonzalez  said women who worked for Filner coined the phrases “the Filner headlock” and “the Filner dance” to describe how he isolates women and then makes unwanted advances.

A  recall effort is underway to oust Filner from the Mayor’s office though it is not a sure thing. Recall advocates have 39 days to collect 101,597 signatures from registered city voters.

I suspect the framers of the U.S. Constitution did not have someone like Mayor Bob in mind when they adopted the concept of  due process.

The Due Process Clause in the Fifth Amendment applies only to the federal government so  the pro-Filner folks must be thinking about the  Due Process Clause of the Fourteenth Amendment, which was adopted after the Civil War to protect the rights freed slaves.

Ratified in 1868, the Fourteenth Amendment declares,”[N]or shall any State deprive any person of life, liberty, or property, without due process of law” (§ 1).

Of course, Filner’s victims also have a due process claim – no  citizen or employee should be subject to “intimidating contact”  by the  Mayor of San Diego.

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