The #MeToo movement has been instrumental in bringing attention to the pervasiveness of sexual harassment and sexual assault (collectively, sexual misconduct1) in all walks of life and in all environments, including at work, school, home, and out in public. But the movement has also brought with it a great deal of confusion about how we define sexual misconduct and whether and when legal liability attaches. Part of the confusion can be blamed on the fact that at least three discrete areas of law can possibly apply to sexual misconduct—criminal law, Title VII (when the sexual misconduct takes place in the workplace), and Title IX (when the sexual misconduct takes place in schools and universities). Adding to that confusion, there are several inconsistencies between how these three areas of the law address issues surrounding sexual misconduct. The most prominent of these inconsistencies is the varied due process protections that apply depending on where the sexual misconduct takes place. This Article will discuss these inconsistencies and will address the issue of whether these differences can be justified. In the end, this Article concludes that the increased due process protection for Title IX cases (compared to Title VII cases) cannot be justified. Thus, it proposes a compromise response to answer the question—how much process is due?
a. Distinguished University Professor and Professor of Law, University of Toledo College of Law. I would like to thank participants at a conference sponsored by Texas A&M University School of Law in April 2019, including Michael Green, Charlotte Alexander, Henry Chambers, Ruben Garcia, Elizabeth Tippett, and Jamillah Williams; and participants at the 14th Annual Colloquium on Scholarship of Employment and Labor Law, at the William S. Boyd School of Law, UNLV in October 2019, including Ann McGinley, Joseph Slater, and Stephanie Bornstein. My apologies to those friends who gave me feedback but whose names I forgot to write down. I would also like to thank William Haynes, who provided valuable research assistance while I was visiting at the University of Iowa College of Law in the Fall 2019, and the University of Toledo College of Law for valuable summer research support. Finally, thanks to Bryan Lammon for providing the title of this article, and as always, for everything else.
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