Clark County vs. Breedon

[Michael McConnell]

Aside from the fact that this involved a single incident, why should it be
considered sex discrimination? This is nothing other than sexually themed
humor, right? I understand why the conversation might have been offensive,
but it did not treat the plaintiff differently on the basis of her sex, or
imply any hostility to her presence, as a female, in the workplace. Thus,
even if there had been a dozen such occurrences, I am curious why it would
be considered a Title VII problem.

Indeed, the only sex discrimination appears to lie in the statement: "Well,
I'll tell you later," which in context probably meant: "I will explain the
joke when no women are present." Was that discriminatory? Ironically, sexual
harassment law as popularly understood seems to be a new version of the old
gentlemanly norm that sexually themed humor should be reserved to single-sex
company. Query: could a female worker bring a Title VII suit on the basis of
repeated situations in which the males refrain from sexually themed humor in
mixed company, and tell the jokes when only men are present?


Michael W. McConnell
University of Utah College of Law
332 S. 1400 East Room 102
Salt Lake City, UT 84112

-----Original Message-----
From: Volokh, Eugene [mailto:VOLOKH at MAIL.LAW.UCLA.EDU]
Sent: Monday, April 23, 2001 12:43 PM
To: CONLAWPROF at listserv.ucla.edu
Subject: Re: Clark County vs. Breedon



        I was delighted to see this decision; but I stand by the assertions
that I've long made in this area, including:

        (1)  Under some state harassment laws, a single remark may indeed be
actionable harassment, see, e.g., Taylor v. Metzger (N.J.).

        (2)  More improtantly, even when a single remark is by itself not
actionable, a prudent employer trying to avoid liability will have to
suppress even individual remarks, for reasons that I have canvassed at
length at http://www.law.ucla.edu/faculty/volokh/harass/breadth.htm
<http://www.law.ucla.edu/faculty/volokh/harass/breadth.htm>  .

        Eugene



        -----Original Message-----
From:   Lynne Henderson [SMTP:hendersl at IX.NETCOM.COM]
Sent:   Monday, April 23, 2001 11:21 AM
To:     CONLAWPROF at listserv.ucla.edu
Subject:        Clark County vs. Breedon

        Eugene--for all those who worried about a single remark being sexual

harassment. . . .
Lynne

        Mnday, April 23, 2001

        Top Court Rules on Crude Remarks
By THE ASSOCIATED PRESS

         Filed at 10:57 a.m. ET

        WASHINGTON (AP) -- The Supreme Court ruled Monday that a
supervisor's crude
remark fell far short of sexual harassment under federal civil rights laws,
and threw out a Nevada school employee's lawsuit.

        The court issued an unanimous, unsigned decision in the case of
Shirley A.
Breeden, who sued the Clark County school district over a 1994 incident with

her supervisor and a co-worker. Both are men.

        Citing the reasoning in previous Supreme Court cases, the justices
wrote
that
those who believe themselves victims of sexual harassment may sue under the
Civil Rights Act of 1964 only if the alleged harassment ``is so severe or
pervasive as to alter the conditions of the victim's employment and create
an
abusive working environment.''

        Breeden was an administrator for the Clark County school district
when she
attended a meeting to discuss applicants for school police officer
positions.
Also attending the meeting were her supervisor and one of her subordinates.

        A report on one applicant showed that he admitted saying to a
co-worker at a
previous job, ``Making love to you is like making love to the Grand
Canyon.''

        Breeden said her supervisor read the statement out loud, looked at
her,
shrugged his shoulders and said he didn't know what it meant. Her
subordinate
said, ``Well, I'll tell you later,'' and both men laughed.

        Breeden said she later told her supervisor that she was offended.
After
that,
she said, he treated her harshly, and a month later she was transferred to a

job with substantially less supervisory authority.

        In 1997, Breeden filed a harassment lawsuit against the school
district.
Breeden contends that 10 days later she was transferred to a largely
clerical
job in a trailer several miles from the main office.

        A federal judge dismissed her retaliation claim, but the 9th U.S.
Circuit
Court of Appeals reinstated it. Although the supervisor's remark would not
support a sexual harassment claim, it was reasonable for Breeden to think it

was unlawful harassment, the court said.

        The Supreme Court reversed that decision, and said the first federal
judge
was
correct to throw out the claim.

        ``No reasonable person could have believed that the single incident
recounted
above violated Title VII's standard,'' the justices wrote, referring to the
relevant section of the Civil Rights Act.

        The court decided the case without hearing oral arguments or
reviewing
extensive paperwork from both sides.

        The school district had appealed to the high court, arguing that the
9th
Circuit's ruling allows employees to file retaliation claims over an
``inconsequential act.'' After Breeden was reassigned, she had the same
salary
and still had significant administrative responsibilities, the district's
lawyers added.

        Breeden's lawyers argued that if her reassignments did not count as
retaliation, it would send the message to employees, ``complain at your own
risk.''

        The case is Clark County School District v. Breeden, 00-866.

        ^

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