The #MeToo cascade has now claimed a federal judge. Alex Kozinski, a colorful and influential libertarian jurist on the Ninth U.S. Circuit Court of Appeals, has stepped down amid allegations that he showed female clerks pornography, made workplace comments about having sex and on some occasions groped female colleagues.
In his resignation statement, Kozinski blamed his “broad sense of humor” and said he “may not have been mindful enough of the special challenges and pressures that women face in the workplace.”
It’s certainly possible that Kozinski, a well-known eccentric and no Harvey Weinstein, didn’t mean to intimidate or discomfit his clerks. But his alleged behavior violated a widely accepted norm for workplace interactions, particularly with subordinates. (I have known Kozinski and his wife, Marcy Tiffany, professionally since the 1990s, when I was editor of Reason magazine and they were frequent guests and occasional emcees at Reason events.)
Whether codified or implicit, norms create boundaries. They honor some preferences and shun others, support some individuals and discourage others. Norms define cultures, in organizations as well as society at large.
If going out for drinks after work is the norm in a particular workplace, people who don’t imbibe or would rather spend evenings at home suffer. “Merry Christmas” excludes non-Christians, while “Happy Holidays” strikes some as overly secular. A dog-friendly workplace welcomes pet owners and repels those who are allergic or dislike dogs. Workplace profanity seems expressive to some and unprofessional to others.
Similarly, a hang-loose norm that tolerates pornography, bawdy talk and sexual propositions bespeaks playfulness and freedom to some. It makes others — not all of them female — feel excluded or threatened. As long as the dissidents are too nice or too cowed to object, such a norm can stay in place even if most employees don’t like it.
What we’re seeing in the current cascade is a critical mass of women rebelling against that norm, as well as against more serious offenses.
Make no mistake, however. Whatever new norms emerge will also exclude people, and not all of those cast out will be bullies, predators or, for that matter, men. All norms draw lines. Norms that police speech and attitudes, as opposed to physical actions, are particularly likely to snare violators whose deviance is unconscious or benign.
In a provocative essay in the Chronicle of Higher Education, evolutionary psychologist Geoffrey Miller argues that campus speech codes penalize people with Asperger’s syndrome, who have trouble reading social cues yet are often brilliant researchers for whom the university has traditionally been a tolerant haven. “The more ‘respectful’ campuses became to the neurotypical, the more alienating they became to the neurodivergent,” Miller writes.
“Speech codes and norms are created by ‘normal’ brains, for ‘normal’ brains to obey and enforce. They assume that everyone is equally capable, 100 percent of the time, of using their verbal intelligence and cultural background to understand guidelines that are vague, overbroad, and euphemistic, to discern who’s actually allowed to say what, in which contexts, using which words.”
Even neurotypical people can, of course, inadvertently be caught by rules against such vague and arbitrary offenses as “unwelcome jokes about a protected characteristic,” to take an example from the University of New Mexico, where Miller works. Disparate impact isn’t the only factor that makes speech codes a bad idea.
But Miller is making a deeper point about norms and exclusion. Strict standards inevitably shut out valuable deviants. “Eccentricity is a precious resource, easily wasted,” he writes.
“John Stuart Mill warned that ‘the tyranny of the majority’ tends to marginalize the insights of those outside the norm: ‘The amount of eccentricity in a society has generally been proportional to the amount of genius, mental vigor, and moral courage which it contained. That so few now dare to be eccentric, marks the chief danger of the time.’ ”
The “tyranny of the neurotypical may be the chief danger of our own time,” Miller adds.
A culture that marginalizes no one — a culture without norms — is neither realistic nor desirable. The question is how to best accommodate the diversity of human personalities and goals while respecting the dignity of individuals.
One approach is to adopt absolutist rules. In a post that went viral on Medium, Anne Victoria Clark gave men a surefire way to avoid charges of sexual harassment: “Treat all women like you would treat Dwayne ‘The Rock’ Johnson.” (Johnson later endorsed the idea.) It’s a funny, insightful essay, but that “all women” is a fatal flaw. We don’t really want a world in which men never relate sexually to women.
Even limited to the workplace, absolute rules go too far. “The project of eradicating physical affection from the workplace is cruel to men and women alike,” warns Claire Berlinski in a nuanced essay on the risk of overshooting, “and if it is successful, we will all go nuts.” Some vulgar humor may be meant to intimidate, but, she observes, much of it has the opposite purpose: it “says, ‘We’re among friends, we may speak frankly.’ ”
One woman’s feminist workplace can be another’s sterile corporate hell.
A better approach, which Miller hints at, is to consider the context and purpose of specific institutions and to allow different institutions to have different norms rather than expecting all of society to conform to a single standard.
The norms appropriate to a research university devoted to advancing knowledge aren’t necessarily the same as those for a teaching college nurturing undergraduates. We shouldn’t demand that cutting-edge researchers all be socially adept, but maybe we should keep some of them away from 20-year-old students. Not every workplace needs to welcome pets or expect after-hours socializing, but that doesn’t mean none should — even if the dog haters and teetotalers feel left out.
We don’t demand propriety in a stand-up comedian. But we do expect it in a judge.