In the interest of disclosure, I don’t particularly support or oppose Sen. Gillibrand’s bid for president. I don’t know enough about her to have an informed opinion of her (or a lot of the candidates) in the race. I’m writing this based on this one issue and the subsequent narratives that have arisen.
A Politico piece last week details a case in which an unnamed staffer (who I’ll refer to as Jane Doe) made a sexual harassment claim against another, more senior, coworker in Gillibrand’s office. There are some who are using this incident to justify calling Sen. Gillibrand a hypocrite on issues of sexual harassment, and to make the larger claim that she’s untrustworthy.
I think we need to be very careful when speaking about hypocrisy and trust concerning our women candidates — we should recognize that the portrayal of any woman seeking power as a dishonest broker with ulterior motives is a tried and true trope amongst misogynists. Therefore, I think as progressives we owe it to Sen. Gillibrand and ourselves to examine the case with reason and respect.
When we do so, as I do below, I think we will find that even if there’s room for some criticism of the way Sen. Gillibrand’s office responded to the allegations, her staff reacted appropriately, and that making broad allegations or comparisons to Gillibrand’s other actions, including the case of Sen. Franken, is illegitimate.
The case in question
The harassment allegation in Sen. Gillibrand’s office concerns a male staffer named Abbas Malik and a female staffer, Jane Doe. Malik was senior to Jane Doe, but not a supervisor. The allegation is that Malik engaged in repeated flirtatious commentary and unwanted advanced toward Jane Doe, both in person and through texts. The comments that have been reported are things like “if we had met in a bar, would it have happened for us,” as well as other comments that we can assume reflected Malik’s interest in pursuing a physical relationship with Jane Doe.
Jane Doe stated in her timeline that this behavior went on for a period of approximately two weeks, then she reported it to her superiors. Sen. Gillibrand’s Chief of Staff, Jess Fassler, and Deputy Chief, Anne Bradley, immediately launched an investigation, bringing in staff counsel Keith Castaldo.
It should be noted that Jane Doe was offered an investigatory process through the Senate Office of Compliance, which would have handled the allegations outside of Gillibrand’s office. Jane Doe visited the office, but decided that she did not want to file a claim through this channel.
We can also note that Jane Doe’s account is not in dispute. Sen. Gillibrand’s staff verified the texts and comments, and documented them. Malik downplayed them as innocuous, but didn’t dispute that he’d made them. The resulting outcome did not involve a significant disagreement over the facts.
After an internal investigation, it was determined that Malik had behaved inappropriately, and he was punished by being denied a promotion and raise. Jane Doe protested this punishment, requesting that Malik be terminated. The staff held multiple meetings with her where they discussed why the comments didn’t rise to the level of termination.
Over the next month, Jane Doe says that Malik was no longer speaking to her, and claims this as discriminatory. She complains several times about the investigation, eventually resigning because she feels it was unfair.
The office responded appropriately
Workplace sexual harassment claims are complex, and employers have legal obligations to both parties. The moment that Jane Doe filed this as a case of workplace harassment, the situation became governed by Title VII protections, and Sen. Gillibrand’s staff had a legal responsibility to examine the issue and take appropriate steps to remedy it.
In this case, we should acknowledge that there is no allegation of sexual assault, or any physical contact. The case entirely revolves around comments that Jane Doe felt were offensive and represented unwelcome advances.
An issue in this case is that workplace laws don’t protect someone from being offended. They don’t protect workers from being hit on, or from hearing sexual jokes or comments. They protect them from a toxic environment that is discriminatory. And employers aren’t tasked with “punishing” harassers, they are responsible for correcting the workplace environment and ensuring that everyone come in compliance with the rules.
In this case, this is what occurred.
Malik’s behavior was deemed to be inappropriate, and his punishment reflected an attempt to change this. This was a first strike in regard to gender discrimination for Malik, and a second strike on his overall record (he’d previously yelled at a male staffer.)
Having worked in HR myself, given the circumstances I would say that Malik was given a pretty significant punishment — the guidelines where I previously worked would have called for the employee to receive a warning, they’d likely have been put through harassment training again, and their file would have been cited. Malik was denied a promotion, which goes above what most HR departments would consider given the specifics of his behavior.
In the aftermath of the investigation, Jane Doe makes several claims about it having been unfair:
1. She complained that Malik should have been fired. This is not her call to make, and this punishment would have been outside typical Title VII compliance. Sen. Gillibrand’s staff met with her in private to discuss the findings, and why they opted for the punishment they did.
2. She complained that Malik “ignored” her following the complaint, and that this was discriminatory. On an offense like this, the employee would be told that they needed to leave the accuser alone, both in terms of further advances, and in terms of any negative remarks or commentary about the harassment claim. This is what occurred, and likely why Malik seemed distant following the claim. The office looked at this issue, and determined that Malik was behaving appropriately once he’d been reprimanded.
3. Jane Doe complains that her own behavior was scrutinized. In her discussions over why Malik wasn’t fired, some of her own violations of office policy that had been revealed in the investigation were discussed, namely that she had brought alcohol into the workplace environment against the rules. This was discussed in private in order to explain to Jane Doe why a warning might be utilized rather than termination. It is not unfair or discriminatory for her superiors to use Jane Doe’s own behavior to discuss why the opted for the punishment they did.
4. She complained that it was unfair that Sen. Gillibrand’s staff handled the investigation and sanctions. It’s not ideal for harassment claims to be handled internally. This is why Jane Doe was referred to the Senate Office of Compliance, but she refused that process as an option, which led to the second-best alternative, the internal review.
Overall, Jane Doe requested a fair hearing and got it. That her superiors used the law and guidelines in order to resolve the situation isn’t a strike agains them...they worked to ensure that all parties had a say and that the resolution fit the wrongdoing.
Malik was later fired
Within the last month (with the Jane Doe investigation occurring last summer), Politico identified another staffer who reported inappropriate comments made by Malik. In this case, they were not sexual advances, but derogatory insults. These comments had never been reported to Sen. Gillibrand’s staff, and were previously unknown.
Sen. Gillibrand’s office opened an investigation, and determined that these comments were also inappropriate. Along with the advances made to Jane Doe and the verbal abuse toward a male staffer, they considered them a “third strike” and terminated Malik for cause.
This is also pretty consistent with my experiences on issues like these. Malik exhibited a variety of unacceptable behavior, and while any one incident didn’t rise to being a terminable event, together they gave the office reason to fire him.
Jane Doe complains that the other insulted staffer was never contacted during her investigation. This complaint falls into something of a gray area. An employer won’t necessarily go looking for other complaints based on third-hand accounts, and that’s appropriate. If an employer puts out “feelers” looking for abuses that haven’t been reported, this could expose them to a claim of wrongdoing by the accused. It would have been inappropriate for the supervisors to begin interrogating other staff based on unsubstantiated claims.
This all seems like the appropriate sequence of events
We should be careful about conflating the Jane Doe case with cases of sexual assault. This was a case of workplace harassment, which received immediate due attention and reaction.
Women deserve — and are entitled under the law — to a workplace environment that in no way hinders their career or advancement. If the environment strays from this objective, they are entitled to the necessary adjustments so that the workplace is free from discrimination.
Jane Doe wanted relief that extended well beyond adjusting the workplace, and while her standpoint is understandable, her complaints about the outcome and process are largely invalid. She’s not entitled to judge behavior herself and decide on the appropriate remedy, and when past bad behavior is punished and stops she’s not entitled to a workplace free of the offending person.
In this case, the system worked. The offending employee was reprimanded and punished, which was the appropriate step in adjusting the environment. Unfortunately, Jane Doe wasn’t satisfied with what was fair and later quit her job, and Malik’s behavior continued so he lost his.
Jane Doe and Abbas Malik both faced different consequences over their distinct actions and decisions, and the good and bad of that is ultimately their individual responsibilities.
The Franken case IS NOT comparable
Some are using this story in a case against Sen. Gillibrand, suggesting that her reaction to the Jane Doe allegation in conjunction with her history on the Al Franken allegations makes her hypocritical.
I find that argument to be woefully weak, to the point of being childish.
If we’re not willing to acknowledge and discuss the distinctions between the Jane Doe case and the Franken case, then the discussion isn’t really about gender discrimination and we aren’t doing a service to those problems in our society. Some of the differences we must consider are:
1. Sen. Franken was in an elected leadership position where Malik was not. We place higher standards on those who represent the voters and the party. We sometimes use these standards to deny them a position in a way we wouldn’t for other jobs.
2. Sen. Franken’s case involved a completely different form of behavior that involved unwanted physical contact, allegations of groping, and flippant behavior about sexual assault.
3. Sen. Franken’s case involved multiple accusers who alleged the same type of behavior, while Malik’s wrongdoing did not. There were multiple problematic incidents, but of different types.
4. As a public figure, Sen. Franken did not have the same expectation to privacy that Malik did. Sen. Gillibrand’s staff had a responsibility to protect Malik from rumors or public disclosure in a way that doesn’t exist for a Senator.
5. The Franken case involved accusations for which there is no solidly defined process. The ethics committee could have looked into the matter, and his accusers could have filed a legal complaint, but those aren’t ideal for examining past behavior outside his elected office. On the other hand, the Jane Doe case has a very defined legal process under Title VII law by which employers and employees are held accountable, and whether this process is perfect or not, that’s what was followed.
6. Sen. Gillibrand might accept responsibility for the process in her office, but not the Franken case, in which the majority of the Democratic Senate Caucus worked together to decide what action to take. If we have problems with the way that worked out, those seem like a party issue, not an issue with the Senator herself.
Overall, the Jane Doe case is so different from the Franken case — including the very nature of the offending behavior, that I don’t think we should be comparing the two.
In either case, Sen. Gillibrand herself acted accordingly with her stated values on this issue. In the Jane Doe case, her staff responded immediately with sincerity and due diligence, and landed on a resolution that punished the offending behavior. In the Franken case, Sen. Gillibrand spoke out about a completely different sort of behavior, and expressed a different solution owing to the distinct nature of the case and the distinct nature of the position in questions.
Both cases illustrate the Senator working to put an end to unacceptable and harassing behaviors.
Therefore...
Sexual harassment and sexual assault issues are complex. The correct resolution is sometimes hard to determine. The case being made in the press seems to be that Sen. Gillibrand went too hard on Sen. Franken, while she was too easy on her own employee. However, as I’ve discussed:
1. The cases are not similar, therefore her reaction shouldn’t necessarily be.
2. In either case, Sen. Gillibrand wasn’t a decision-maker. Her co-Senators decided together how to approach Franken, while her staff resolved the Jane Doe case in accordance with the law.
I therefore don’t find anything particularly inconsistent in her actions or values between these two cases. This won’t affect my view of her at all, and that’s what I’d recommend for anyone who wants to treat these issues with the respect they deserve.
And I do feel that those who would make this into a larger issue aren’t really examining this logically, but are rather using these two incidents to construct a very weak case against Sen. Gillibrand, which is all about politics and not gender discrimination.
The bottom line for me is that the Senator played a role in discouraging toxic male behavior in both cases, and some are using this to justify calling her duplicitous, two-faced, dishonest or hypocritical. Because these representations of women in power play into longstanding misogynistic views and tropes, I think the reaction is far more problematic than Sen. Gillibrand’s views or actions in the two cited incidents.