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Can a Sexual Harasser Be "Too Big To Fail"?

(Sexual Harassment by Nick Youngson CC BY-SA 3.0 Alpha Stock Images)

Disturbing allegations were raised this week in a lawsuit filed against the University of California Board of Regents and Prof. Sujit Choudhry, Dean of the UC Berkeley Law School (Boalt Hall). The claims are that he sexually harassed a law school employee over a significant period of time, and that he sexually harassed at least one other female employee as well.

That a trained lawyer -- and law school Dean -- could engage in such behavior is disturbing enough, but the allegations go even further. According to the lawsuit, after Prof. Choudhry admitted the misconduct and Berkeley found he had violated its sexual harassment policies, instead of terminating him Berkeley implemented a soft course of discipline because it was concerned that terminating Prof. Choudhry "would ruin the Dean’s career, that is, destroy his future chances for higher appointment.”

Yes, you read that right. The concern wasn't that he would become unemployable and unable to feed his family. The concern was that he couldn't move up even further in his field.

According to a Washington Post article, Prof. Choudhry is “an internationally recognized authority on comparative constitutional law and comparative constitutional development” who previously served as a consultant to the World Bank Institute, a professor at NYU School of Law, and a faculty chair at the University of Toronto. He is a member of the United Nations Mediation Roster and, in 2010, received the Trudeau Fellowship (Canadian equivalent of the MacArthur awards). He holds law degrees from Oxford, Toronto and Harvard, was a Rhodes Scholar, and served as law clerk to Chief Justice Antonio Lamer of the Supreme Court of Canada.

Prof. Chaudhry's credentials are top notch, he is preeminent in his field, and was (until this lawsuit surfaced) Dean of a top-tier law school. But was the negative impact on his future career advancement an appropriate consideration in deciding not to terminate him?

At this early stage of the lawsuit it's not clear whether the reasonableness of Berkeley's failure to terminate Prof. Chaudhry will be central to the plaintiff's claims (such as if he continued to harass the plaintiff, or others, after Berkeley decided to keep him on). But if a judge or jury is ever called upon to decide this question, it will be difficult for the defense to explain how Prof. Chaudhry's potential future advancement could somehow outweigh the safety of women in the workplace.