People can also be very manipulative. Following down this path (i.e. "believing that the accuser is right even before the investigation starts") will only lead to less women being hired for relevant positions.

Here's a relevant scenario: I'm a man, I hold a managerial position and I have to choose between hiring another man or a woman as a one of my direct-reports. Let's say both contenders have the same qualifications, they're both equally fit for the job, but then, I, as a manager, start thinking that if I hire the woman she will then possibly think of filing a sexual harassment complaint down the line in order to take my job. Remember the "believe" part, which means that the sexual complaint doesn't even need to be backed by anything real, because most of the times after the complaint has been made public the damage is already done for me, as a male manager, no matter what the investigation finds (if it manages to find anything). So I choose the man over the woman as my direct-report.

So what you're saying is, in your "relevant" scenario, you would discriminate based on gender for a hiring decision.

I think it would be more fair to say he would discriminate based on perceived risk to himself. In this case, that risk is based on the sex of the person involved, but his argument can also include, for example, hiring someone with lesser qualifications, who is less likely to be promoted past him, over a more experienced candidate.

The more general point would be, be aware of the second order effects of changes you promote. For example, revocation of innocent-until-proven-guilty would almost certainly reduce the chances of people who have blown the whistle of being hired again, as they would present a much higher risk to prospective companies, regardless of whether their claims were true. The fact that they would blow the whistle at all would serve as a huge red flag.

Of course, I don't actually know the incidence of sexual harassment at workplaces, and have no idea whether false reports are even an issue. I strongly doubt they are, but I can somewhat understand male managers fear of them, given that they can ruin careers and marriages. As much as sexual harassment is a problem, I don't think assumption of guilt is an appropriate or long-term effective solution.

When you introduce irrational events into a mostly rational world (i.e. when you introduce "believe before investigation" into a world run by financial compensation) then you're bound to have irrational responses, such as discrimination, yes.

Assuming other people aren't psychopaths is irrational optimism, while desperate defensive strategies like not hiring high-risk people are perfectly rational.

In a world where no evidence is required before firing, then that would be the sane thing to do. Always hire the sex you are not attracted to and make your sexual preference very clear.

Im sorry, but if you extrapolate that kind of paranoia and self-servedness everything has difficult repercusions. Maybe companies shouldnt have an HR department at all because people might decide the risk of someone complaining about them is so big that they stop hiring anyone.

Or maybe we just promote more women and gay men to managerial positions :)

I've never understood this position. We take a risk too by following innocent until proven guilty in criminal trials, but hundreds of years of the opposite (e.g. "A witch!" -> kill the 'offender', "A child molester!" -> kill the 'offender') have shown us that the risks of a fair trial are better than the risks of ruining peoples life over accusations. Why should this be any different in the work place?

There's a middle ground between innocent until proven guilty and condemned by accusation and we've been using it in a courts of law for many, many years. Sexual harassment is primarily a civil issue, not a criminal one. And civil issues are resolved based on the preponderance of the evidence, not innocent until proven guilty.

Anyone accused of sexual harassment should have a chance to give their side of the story and an investigation should be performed, but the company should act based on what HR believes happened, not just what HR can prove happened. Neither the accuser nor the accused has the presumption of being right or the burden of proof.

Even when the burden of proof is a preponderance of the evidence, the accuser still has the burden the proof. The general rule seems to be more than 50% probability or "more probable than not." This is not a minor issue...if all you have as evidence are the testimonies of the accuser and and accused and no way to impeach either one of them, deference should still be given to the accused.

Also note that it is in general impossible to prove that something did not happen, as opposed to proving it did, as things that did not happen have no evidence of their occurrence by definition...

> "Civil issues are resolved based on the preponderance of the evidence, not innocent until proven guilty." ... "Neither the accuser nor the accused has the presumption of being right or the burden of proof."

This is incorrect. "Innocent until proven guilty" and "preponderance of evidence" are not two levels on one scale. They are distinct legal principles which can be applied at the same time or separately. Both, however, relate to the burden of proof and differ between criminal and civil trials, which is probably the source of the confusion.

Crudely: one standard is about what happens without sufficient evidence, the other is about how much evidence is sufficient.

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The burden of proof is a general concept of which party in a trial must prove their claims, and to what standard. "Presumption of innocence" is one possible answer to "which party", while "preponderance of evidence" is a possible answer to "what standard".

The party bearing the burden of proof for an issue is the party which must provide evidence. Simply: if everyone at the trial rests without offering any evidence, whoever bears the burden of proof loses. In criminal trials, this is the presumption of innocence you mention. In civil trials, the matter is more complicated, but in effect the plaintiff bears the (initial) burden. In asset forfeiture cases, infamously, the government bears the burden in the initial trial (against the asset), but the owner bears the burden of proof as a third-party claimant if they want their property back.

(It's emphatically not true that neither side has the burden of proof in civil trials. There is always a burden of proof when a claim is being made, to determine what happens if no evidence is provided. However, civil cases frequently involve affirmative defenses, in which each party bears the burden of proof for the claims made by that party. Both, not neither.)

The standard of proof, meanwhile, is the hurdle which must be cleared by whoever bears the burden of proof. It's how convincing their claim must be to be accepted. In civil cases, yes, this is a "preponderance of evidence", interpreted as the claim being more likely than not. In criminal cases, this is "beyond a reasonable doubt" - that's on the same scale as preponderance. Other standards exist outside of trial settings: in various contexts US law employs standards like "some evidence" and "reasonable suspicion".

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I'm not (just) being pedantic here. If we're talking about borrowing a legal standard for deciding against someone in a dispute, I think it's very important that we're clear on what we mean.

It's possible to vary both the size and placement of the burden. We could believe the accuser (burden on the accused), but hold the accused to a mere "some credible evidence" standard for their defense. We could believe the accused and demand evidence "beyond a reasonable doubt", or lower that to "preponderance of evidence", or even further. Or we could even use some standard not borrowed from the courts.

But right now, almost no one clarifies what they mean. The results of moving the burden will be very different from the results of lessening the burden, and it's important to understand what we're proposing.

a. Because a false positive may result in moving someone to a different division, not burning them at the stake.

b. Because the costs of a false negative is forcing someone to continue working for/with someone they clearly feel uncomfortable around.

(compare to crimes, where it's much easier to protect the victim even without any sanctions against the accused)

Preponderance of the evidence is the standard that companies should be following because that is the standard that will be followed in any civil suit that follows the company's resolution of the issue, either from the accused or the accuser.

Innocent until proven guilty is the standard for depriving someone of their freedom, not their job. If the harassment rises to the level of sexual assault, it's the standard the prosecutor will use. Otherwise, it's irrelevant in the context of sexual harassment.

The problem is with these "difficult" issues the first thing anyone who is trained to work in this area (even on the employee side) as I am - will tell you is you have to verify what you are being told.

on the flip side of this, at-will employment is a reason a company could take immediate action without having to investigate.