Amidst the many allegations of workplace harassment that have come to light in the past few months, the saga of former judge Alex Kozinski may be of particular interest to lawyers. In the case of Kozinski, the allegations stretch back over decades, an “open secret” never explicitly aired. What should dispute resolution professionals take away from this?
In this post I’d like to consider whether the attitudes promoting group solidarity that we social animals generally value contribute to complicity in patterns of bad behavior in two related ways: by characterizing those who raise disputes as troublemakers and dismissing their concerns, and by making it harder for individuals to consider bad behaviors as constituting “disputes” (whether through a rational calculation of the costs and benefits of doing so, or through an internalization of the message that such behaviors do not qualify to be “disputes”).
Consider agreeableness and conscientiousness, two of the “Big Five” personality traits identified by psychologists as being generally correlated with prosocial behavior. A recent study building on the famous Milgram experiment argued that agreeableness and conscientiousness predict higher obedience to authority, which, in the context of the Milgram experiment, meant agreeing to inflict pain upon others. Disagreeable and less conscientious personalities, by contrast, tended to inflict less pain. Explanations for this are not hard to fathom. In the five-factor personality model, agreeableness is related to conformity to social norms and expectations, and to a reluctance to upset others; disagreeableness involves less concern for the opinions of others. In the same model, conscientiousness is associated with a sense of duty and self-discipline, decreased flexibility, and obedience to authority; a lack of conscientiousness involves less discipline and greater disobedience in the face of a seemingly legitimate authority. Agreeableness and conscientiousness can seemingly encourage people to participate in unethical behavior in the context of the experiment. The disagreeable and less conscientious personalities had fewer compunctions against disobeying the authority figure in order to make the choice to stop inflicting pain. Two variations on the experiment are particularly noteworthy: in one variation, two additional confederates of the experimenter also applied shocks to the victim and chided the test subject when he wavered—which increased the test subject’s level of compliance; in another variation, two authority figures argued between themselves in front of the test subject about the need to engage in punishment—which significantly decreased the test subject’s level of compliance.
Of course, we must be cautious about identifying implications from this. The Milgram experiment and other experiments demonstrating the power of authority and group norms are obviously very different from the contexts of harassment in the legal profession. And yet there are two implications that seem important for understanding the decades of silence around Kozinski. First, the experiments suggest that social norms can powerfully influence other members of the community to condone or participate in bad behavior. Unless group norms promote the airing of disputes, it seems likely that the community response would be to characterize complaints as troublesome and individual complainants as troublemakers. The hierarchical nature of the judiciary and its culture of omertà create the perfect conditions for a community to treat the articulation of disputes as violations of the social order, and to close ranks against individual complainants—thereby giving cover to perpetrators.
Second, even as the test subjects were presented with a tension between competing demands from a peer “victim,” asking the test subject to stop delivering shocks, and the psychologist authority figure, asking the test subject to continue administering shocks, the test subjects were not formally asked to resolve this tension. In the variation where the test subject had to resolve a dispute between two authority figures, compliance fell significantly. Presumably the results of the original experiment might also have been different if the test subjects perceived their role to be that of resolving a conflict between the victim and the psychologist. What do we do when we are not presented with a clear dispute but observe or experience something that tests the limits of what we believe to be ethical, or when we feel discomfort with no effective way of stopping it? The danger in the language of “dispute resolution” is that it suggests that disputes are binary: they are called into being by a complainant and then they are resolved and disappear. Even broader concepts of “dispute” generally require that we be able to name the issue. The “dispute” terminology poorly captures situations in which we perceive that something is wrong but struggle—out of a calculation of the costs and benefits or out of an inability to describe the situation as creating a “valid” dispute—to articulate what or why or what outcome we desire. This may be particularly challenging for bystanders who are unsure what kinds of interventions are appropriate. These situations are only made more difficult by social conditions that treat disputes as violations of the social order. This is where I worry that our tools fail us, and where we depend upon the more disputatious among us to do the hard and unpleasant (but necessary) work of articulating disputes in spite of the consequences.
As the news about Judge Kozinski shows, even lawyers charged with upholding rights and with exercising independent judgment in the face of adversity could rationalize failing to speak up against serial harassment, as Dahlia Lithwick eloquently describes. Even though this behavior was an “open secret,” good manners and calculations of career consequences protected the status quo. The sense that nothing would change became a self-fulfilling prophecy—until now. The revelations of recent months show that this is hardly a unique example. Many of us have been complicit in patterns of harassment by those in power—failing to speak up or to hold our ground, and seeking to remain in the good graces of those with authority over us due to their formal positions or due to their esteemed social standing.
Even setting aside the gendered dimensions of workplace harassment—which, of course, we can’t—there are very real pressures that encourage tolerating discomfort, falling in line and respecting authority, not rocking the boat, and not raising the issue. To the extent that the “agreeable” response to harassment is to empathize with a victim without confronting a perpetrator, it is clearly inadequate. To the extent that the “conscientious” response is to brush evidence of harassment aside to get back to work, it is also clearly inadequate. We know, as practitioners of dispute resolution, that accommodation and avoidance are often not the most effective strategies to deal with a dispute. On the individual level, the challenge is to break the silence by acknowledging to ourselves and to others that a wrong has been committed and to move from that miasmatic discomfort to the articulation of a “dispute.” This is not always easy. We know intellectually that it can be important and valuable to air conflict, even though doing so can push against the deeply-felt instincts that encourage agreeableness and conscientiousness, which otherwise do such important work in protecting the health our communities. Sometimes it is important to be disagreeable, unconscientious, or even “nasty” in order to break open a culture of silence lasting decades.
But individual empowerment must be supported by a cultural shift to treat disputes—and systems to proactively manage disputes—as desirable components of social life. In the few instances where individuals have successfully raised awareness of long-standing patterns of harassment, this has been due to the prominence of the perpetrators (principally in the media and in government) and due to the presence of a critical mass of individuals raising their disputes—shifting the community’s sense for what constitutes prosocial behavior in these very particular contexts. But these successes have been limited to a few small sectors of society, and our existing institutions are clearly inadequate for the task of wisely handling these disputes. Our shared challenge is to effect these changes on a wider scale.