Lawmakers should debate expelling Baumgardner

There seems to be some confusion by politicians and pundits on the issue of due process. Let’s clear that up first. An individual accused of sexual harassment in the workplace is not entitled to due process. You can be fired for grabbing an employee’s butt. In fact, you should be.

Due process applies when the government seeks to deprive an individual of his rights. The Fifth Amendment to the Constitution states that “No person shall …be deprived of life, liberty, or property, without due process of law.” The Fourteenth Amendment applies this legal principle to the states. Thus the government must follow formal proceedings according to established rules in order to condemn land, confiscate firearms under an Extreme Risk Protection Order, incarcerate or involuntary commit an individual to a mental institution, expel a student from a public school, terminate a parent’s custody rights, or restrict a business through a zoning decision.

If the government takes a person’s job by revoking his license to practice without the proper proceedings, that would be a violation of due process. A business or government agency, however, can investigate, accuse, reprimand, discipline, and/or fire an employee for sexual harassment. Sometimes innocent people are unjustly accused and let go. Unfair, to be sure, but it’s not a violation of due process.

In order to retain good employees and promote a safe, productive work environment, businesses and government agencies should have fair and equitable procedures for judging sexual harassment claims and for determining appropriate responses. The punishment should fit the offense. An unwelcome attempt at flirtation by a coworker is not the same as an aggressive demand for sex. Lecherous physical contact is worse than an ogling look or lewd comment.

Sexual harassment by a supervisor is a more egregious offense than harassment from a coworker. Multiple offenses are worse than a one-time infraction. Sometimes a reprimand or demotion is appropriate. Sometimes the only just response is termination of employment.

The #MeToo movement has brought about a long overdue change in workplace expectations. Fifteen years ago, a D.C. lobbyist my father’s age slapped my butt while we were walking by the U.S. House of Representatives. I was mortified and never spoke to him again. Luckily, I didn’t work closely with him and avoiding him did not impact my daily work or career trajectory.

If this happened today I would call his employer and complain. A butt slap or grab by a boss or business associate isn’t just a sexual violation, it’s a misogynist power play. It says “you’re an object of my enjoyment and I’m entitled to touch you there whenever I please.” While it does not rise to the level of sexual assault, a jailable offense, it should not be tolerated in a workplace. It is a fireable offense, and due process is not required.

Last week, the Colorado House of Representatives did the right thing by expelling former Thornton Democrat Steve Lebsock following multiple, credible sexual harassment complaints. That kind of behavior would have gotten him fired from a convenience store.

The Colorado Senate should take up a resolution to expel Randy Baumgardner, R-Hot Sulphur Springs. An investigation determined that “it was more likely than not” that he slapped and grabbed his aide’s bottom multiple times. Is the loss of a committee chairmanship and a promise to attend sensitivity training sufficient consequence for that behavior? That’s a question that should be debated on the Senate floor.

The decision to expel a lawmaker is a serious matter given that it was the will of the voters who put him there. Lawmakers should not make a habit of contravening the voters’ will. On the other hand, should the Senate allow a lawmaker to remain whose behavior would have gotten him fired in the private sector?