A New #MeToo Result: Rejecting Notions of Romantic Consent with Executives
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With the growth of the #MeToo movement since October 2017, more than 200 prominent male executives have lost their jobs. Some pushback has occurred as many of these executives have asserted their behavior was not inappropriate because their acts were consensual. Essentially, this argument requires companies evaluating this behavior to find nothing wrong when executives use their vast power and influence to have romantic and sexual relationships with their subordinates who do not say no. Those suggesting that the #MeToo movement has gone too far believe it will result in unintended consequences where totally benign and even positive engagement between bosses and subordinates will be circumvented out of a fear of unfairly ending the careers of executives without any real culpability. Incidents of innocent flirting, harmless jokes, and even an initial overture seeking a romantic relationship could lead to total destruction of an otherwise productive executives career as #MeToo responses have demanded zero tolerance and immediate resignation or termination from executive positions. Critics of the #MeToo movement argue that businesses have responded wrongly by preempting the loyal, happy, and productive relationships occurring in many workplaces where employees have engaged in successful romantic relationships with co-workers and eventually married. To rebut the claims of disparagement aimed at #MeToo for stigmatizing alleged consenting relationships occurring in the workplace, this Article asserts that the enormous power differentials between corporate executives and their subordinates support a completely preventative measure aimed at making an executive pay for any liability or discord resulting from not only engaging in sexually offensive behavior with subordinates but also consensually romantic behavior. With the power to impact not only the subordinates immediate work situation, a truly influential executive also has the potential to affect the subordinates entire career. Because of these power differentials, a subordinate can never truly know that a response of no consent will be received in a positive manner by the executive as no means no. Subordinates will always likely fear retaliation for refusing the executive. Even if they acquiesce and begrudgingly or enthusiastically accept the executives overture, subordinates face being viewed as obtaining career advancements based on factors other than merit. Also, this type of executive behavior sends a broader and overall negative message to all subordinates that the way to advance in the organization will not be based upon merit but through acceding to romantic and sexual overtures. When an executive mistreats a subordinate by making romantic and sexual advances, retaliation claims and other forms of corporate liability represent concerns for the employer even if the underlying conduct by the executive was insufficient to warrant liability for harassment. Corporations have an incentive to avoid this liability risk even if some executives and subordinates might act responsibly and develop positive romantic relationships resulting in productive outcomes for the business. Given strong concerns about retaliation as well as a result of extreme power differentials, this Article seeks support for subordinates who face sexual misconduct in the workplace committed by executives. The Article also tackles the issue of consent by proposing that employers require that executives can never assert consent or rely on a failure to say no in defense of objections to their romantic overtures. An executive may still attempt to engage in flirting and joking and even pursue romantic relationships, but a subordinates consent or failure to say no would never be a justifiable defense for this behavior, if challenged. Potential liability and the need to protect against diminishing corporate value for this inappropriate executive behavior in this time of #MeToo provides cause for this response.