No Shame

 Even if you're not a huge sports fan, it's hard to ignore the stories about college football teams' reckonings with mistakes and sometimes atrocities alleged to have been committed by their leadership and membership. Of course, the most notable, horrendous and unspeakable has been the Penn State scandal and the number of school officials and administrators who no longer have jobs because of their role in or knowledge of what is alleged to have gone on there. Even as fans have protested the firings of some of their most beloved figures, others have called for even harsher measures--the abolition of the entire program, for example, which would make each player suffer for crimes alleged to have been committed against children when they, themselves, were just children.

And on the other end of the spectrum, in he midst of allegations that couldn't be much further factually or in gravity from what was alleged at Penn State (the improper activities of a "booster"), in my own city of Miami, the University of Miami has self-imposed a ban from bowl-game contention on its team. It does this to the obvious disappointment of its players and coaches, most of whom had nothing to do with the alleged scandal. It's another example of group and institutional accountability for the actions (and inactions) of a few. The institution of the football program, and by extension, the university community, is held, or holds itself out as accountable, anxious to remove the taint of the scandal and to absolve itself of any imputed guilt and place itself back on the right track. Whether this accountability is self-imposed or coerced by outside pressures (consequences, legal and otherwise, public shaming/opinion, etc.), it is still becoming part of the culture of college sports, and I wouldn't be surprised if we saw more of the same in the future.

While these two scenarios cannot be compared in terms of the gravity of what is alleged to have gone on in each, they are both emblematic of the end of an era in which college athletes, football programs, and even football cultures are set forth as godlike, untouchable forces that must be protected at all costs. As an employment discrimination scholar, I can't help but contrast this attitude with that of employers whose high level employees are accused of sexual harassment, or worse, assault. Beyond paying a settlement offer or (rarely) a court-ordered judgment, there is not typically any public or large-scale action or stance taken by an enterprise that has appointed a high level employee who proves to be a recidivist harasser. In fact, with the affirmative defense to sexual harassment, the law's insistence on analyzing each incident in a veritable vacuum with no real heed paid to workplace culture or permissiveness/opportunity extended to serial offenders, and the lack of a negligent hiring/negligent retention claim that has any real traction as applied in most of these scenarios, it is quite easy, legally, for an employer to either evade liability for what it knows that a harasser has done, or at least to retain him (if he's with it), transfer him away from his victim, and provide him with the opportunity to strike again.

But beyond the frequent lack of legal liability, there also has not developed around the law of sexual harassment--even when that harassment has crossed over into criminal activity--a culture of responsibility or accountability around the offending organization that hires, promotes, and defiantly retains the offender. Think about how many cases that make the news--national or local-- that involve multiple claims over years against the same offender (often escalating). Think about stories that you might have heard through your own employment experience about harassment allegations and how often the accused offender was merely transferred to another division of the company, slapped on the wrist, or ordered to attend "sensitivity training" with no sense of collective culpability forming around or within the organization that houses the incidents. Why is there public outcry against the University of Miami for its alleged role in the booster scandal, public outcry against Herman Cain for all that he has allegedly done, but no one seeking to hold the Restaurant Association accountable (even morally) for retaining an alleged harasser for as long as it did?

If we really are ushering in an era of accountability in which organizations take responsibility for what goes on within their walls, wouldn't it be nice if employers paid heed and engaged in a little bit more recognition and decrying of what they might be permitting, facilitating, or even willfully ignoring?