The Ethicist: Why Does a Creepy Co-Worker Keep Getting a Pass?

June 17, 2018 by Joshua
in Ethicist

My series answering the New York Times’ Ethicist column with an active, leadership approach instead of an analytical, philosophical perspective continues with “Why Does a Creepy Co-Worker Keep Getting a Pass?”.

I’ve been at my job for about a year. The company I work for has grown recently, so there are many new staff members, a majority of whom are young women in their mid-20s, like me. One of my co-workers is a middle-aged man who has been at the company for more than 10 years. He is very socially awkward and can also be difficult to work with.

Many colleagues who have been at the company longer than I have say they think he might be on the autism spectrum, and that allowances need to be made for his behavior. I don’t know whether this diagnosis is accurate, but in the past few months I have noticed an upsetting pattern in his behavior. This co-worker tends to be very friendly to new staff members, especially young women. This happened with me when I first started and another colleague in my department shortly after. He approaches your cubicle and stands in the entrance and will talk for quite a while, and it is often difficult to escape these conversations. At first I felt bad, as he is clearly kind of a lonely older man and doesn’t have a lot of social interaction outside the office. However, he often says things in conversation that feel a little too personal or are crossing a line in some way. Eventually I started to cut off these conversations by being more assertive and letting him know that I had work to do or making up excuses to have to leave my desk. But his work space is near mine, and he has a habit of taking personal and medical phone calls about intimate issues on his office phone in an open office layout. I spoke to H.R. after one that made me very uncomfortable, and the H.R. employee said she had warned him about not taking personal calls before and would do so again.

Since then, he has continued taking calls at his desk, and I have also heard from several young women in other departments about his behavior toward them. He once took the train with one of them who lives in his neighborhood, and later commented that he would think of her when he walked past her apartment. She spoke to H.R., and he was reprimanded and left her alone.

Recently, we learned that he has been spending time talking to the interns and asked one of them on a date. She told him no, but that maybe they could hang out at an office happy hour, because she didn’t want to be mean. He then sent her an email with his cellphone number and another invitation to hang out. She laughed it off, but this pattern of behavior is really disturbing to many of us. He is 30-plus years this intern’s senior, not to mention a supervisor. He is given a ton of leeway in his work and personal behavior by managers and H.R., but I and others have been affected by his actions. I go back and forth about whether I should feel sympathy for him, but it seems absurd that someone should be given free rein to make an unsafe workplace for others, even if they are on the spectrum. In this era of #MeToo and #TimesUp, it feels as if we as young women should be empowered to speak up about this behavior, but I’m not sure what actions can be taken. Name Withheld

My response: We’ve all experienced trying to help someone only to find what we meant to help got the other person angry, frustrated, or the like. We’ve also all experienced someone trying to help us who only made things worse.

I usually respond to letters with no questions by saying something like, “Thank you for sharing your story,” and not giving advice or commenting much more. Not commenting may sound like an easy way out of more thoughtful and helpful writing, but I’ve learned many times in coaching, teaching, and friendships that helping people who haven’t asked for it is a recipe for disaster.

My starting point for why is that what different people consider “helping” depends on their values, views, goals, and other factors that you, giving unasked advice, don’t know. For example, offering potential solutions to someone who just wants to be heard often leads to exasperation, frustration, and feeling devalued. But just listening to someone who wants advice can lead to impatience, frustration, and other emotions neither party wants.

However obvious you consider your interpretation of what the letter-writer wants, dozens of other interpretations exist, any of which the writer may have meant, or not. Acting on unchecked assumptions risks imposing your values on others, which usually provokes responses you wish you hadn’t from others.

I’ve found the best policy to keep neutral until the person clarifies what they want so I know what “help” means to them in that situation.

This column’s headline asks a question, but it comes from the headline writer, not the letter writer. I’ve already noted the insidious, nefarious skills of this column’s headline writers. They consistently pack the headline with the intellectual and mental equivalent of junk food—“should I . . .” “Is it okay to . . .” “Is it right/wrong to . . .” I don’t know what to call it. It’s not click-bait. It’s addictive mental junk food.

The New York Times response:

People with autism-spectrum disorder can struggle to understand social clues and to infer norms of behavior. Once the rules have been carefully explained, however, it’s infantilizing to use the condition as an excuse for harmful behavior. It isn’t hard to understand a rule that, say, forbids a supervisor from making sexual or romantic overtures to junior staff members. An adult man on the autism spectrum is an adult man; the spectrum isn’t a certificate of sainthood.

Awkwardness of other kinds — unrelated to sexual harassment or the creation of a hostile environment — is something that we have to learn to handle. But whether or not your colleague is indeed on the spectrum, or, for that matter, is suffering from a diagnosable psychiatric disorder, what you’re describing is over the line. Your employers are, I assume, trying to balance their concern to accommodate someone who may have a disability against the rights of female employees. Given the nature and scale of the complaints, they seem to have underweighted the rights of the women in the office. This letter should have gone to the H.R. department of your firm.

Academic publishing in law may be unique in that nearly all scholarly journals are edited by second- and third-year law students, rather than professors or lawyers. Decisions about which articles merit publication are made by students who may be 23 years old and whose only relevant legal experience may consist of having studied law for 20 months or so. Nevertheless, these decisions can affect the way the article and its author are viewed. For example, many law schools brag about their faculty’s prestigious article placements, and such placements can also affect hiring, tenure and salary decisions at law schools.

In recent years, a practice has developed in which authors send their manuscripts to friends on other law faculties and ask them to recommend their paper for publication to the editors of their school’s law journal. Law students understandably feel pressure to defer to the professors who give them grades and who are far more experienced.

I don’t know how common the practice is, though I suspect that many authors who submit to law reviews are unaware of it. On the positive side, the practice means that a professor vets the article. And it is no different from the common practice of using your connections to get ahead.

On the negative side, it can undermine the goal of having prestigious journals publish the best articles in multiple ways. First, it confers a significant advantage on those who both know of the practice and have friends at the right law schools, consequently making it harder for those who don’t have that knowledge to secure top placements. Second, professors who receive such requests probably feel eager to accommodate friends who may someday be able to do them a favor in turn, and this incentivizes them to suggest publication of articles wholly apart from the merits of the pieces. Because the professors may recommend articles without reading other submissions, they will not usually know how the recommended article compares with the other articles submitted to the journal. The practice also contrasts with the blind peer evaluations common in other disciplines, in which referees don’t know whose paper they are evaluating.

In short, to the extent law-review placements are thought to be a statement about the quality of the article — a view that, despite what I say above, I find hard to shake in myself — a result of this practice is that placements may send a misleading signal about the article. That has not stopped me from engaging in it once or twice. Did I behave unethically? Is it relevant that students are involved? Name Withheld

My response: You asked what’s ethical. There is no book in the sky or other measure of absolute right, wrong, good, bad, or evil that 7.6 billion people will agree to. If there were, you would have consulted it, gotten your answer and wouldn’t have had to write here. There isn’t, so you did.

I find it sad that people prefer to ask for judgment more than help. I tend to look at our educational system for promoting compliance and analysis over examining our values and developing the social and emotional skills to act on them.

I would categorize this situation as a problem-solving, not an ethics, issue. Abstract questions of philosophy won’t resolve this issue as effectively as adopting a problem-solving approach: what will you do next time?

As with most of life, each potential action has results and you want to find an outcome most acceptable to the most number of people. What helps solve problems? In this case, probably talking to people with experience, developing social and emotional skills to communicate with the people affected, empathy for how potential results will affect different people. I would start with those things before writing a newspaper ethics columnist.

The New York Times response:

In recent years, law reviews have attracted a fair amount of criticism, in part owing to the peculiarities you touch on. There are more law reviews than ever but fewer subscribers. Even the ones with the largest circulations, like The Harvard Law Review, have a fraction of the subscribers they had a few decades ago. (Electronic databases play a role here.) Their editors are typically inexpert and, given the apprentice system, are subject to the sort of influences you worry about.

As you’ve made clear, the practice of faculty recommendation puts pressures on law-review editors that may involve the abuse of power, temptations to toady and a host of other unfortunate effects. A study of nearly 200 nonspecialized law reviews by the University of Toronto law professor Albert H. Yoon found favoritism toward faculty from their home institutions. But traditions can be hard to undo, and the use of student editors has some advantages. Most notable, it can provide them with valuable experience in sorting through complex legal arguments.

Still, some meliorative steps can be taken. Law reviews could adopt an explicit policy that they will not consider articles sent to them via the faculty of their own institution. Indeed, they could simply circulate a letter to their own faculty asking them not to do this. That would permit them to decline the requests of their no doubt highly talented friends to put their thumbs on the scales of journal justice.

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