1st Am and intent to create a offensive environment/Red herrings

[Lederman, Marty]

As far as federal law is concerned, I think Eugene's and Michael McConnell's inquiries and concerns are directly addressed and put to rest, at least in the title VII context, by the Court's opinion in Oncale, 523 U.S. at 80-81:

"Respondents and their amici contend that recognizing liability for same-sex harassment will transform Title VII into a general civility code for the American workplace. But that risk is no greater for same-sex than for opposite-sex harassment, and is adequately met by careful attention to the requirements of the statute. Title VII does not prohibit all verbal or physical harassment in the workplace; it is directed only at 'discriminat [ion] ... because of ... sex.' We have never held that workplace harassment, even harassment between men and women, is automatically discrimination because of sex merely because the words used have sexual content or connotations. 'The critical issue, Title VII's text indicates, is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed.' Harris, supra, at 25, 114 S.Ct., at 372 (GINSBURG, J., concurring). Courts and juries have found the inference of discrimination easy to draw in most male-female sexual harassment situations, because the challenged conduct typically involves explicit or implicit proposals of sexual activity; it is reasonable to assume those proposals would not have been made to someone of the same sex. The same chain of inference would be available to a plaintiff alleging same-sex harassment, if there were credible evidence that the harasser was homosexual. But harassing conduct need not be motivated by sexual desire to support an inference of discrimination on the basis of sex. A trier of fact might reasonably find such discrimination, for example, if a female victim is harassed in such sex- specific and derogatory terms by another woman as to make it clear that the harasser is motivated by general hostility to the presence of women in the workplace. A same-sex harassment plaintiff may also, of course, offer direct comparative evidence about how the alleged harasser treated members of both sexes in a mixed-sex workplace. Whatever evidentiary route the plaintiff chooses to follow,
nduct at issue was not merely tinged with offensive sexual connotations, but actually constituted 'discrimina[tion] ... because of ... sex.'"

Accordingly, I think it fair to say that the following propositions are well-established and uncontroversial in the caselaw, no matter how frequently they may be questioned on this list:

1.  Neither T7 nor any other federal antidiscrimination law establishes a "general civility code for the American workplace."

2.  The pertinent threshhold question in a federal "hostiel environment" suit is whether the conduct (whether speech or not) was inflicted on employees/students/patrons/etc. "because of" their race/sex/etc.

3.  The sexual content or connotations of words used can be evidence that is relevant to the question of whether the defendant's treatment was discriminatory; but there is no prohibition against sexual expression, as such.

4.  In cases where the disparate treatment is manifest - where there is "direct comparative evidence" -- the trier of fact typically need not inquire into the defendant's intent.  However, in cases where the "comparative evidence" is absent and/or the intent to discriminate is not obvious (as in Oncale -- there was no female population of employees to which a comparison could be made), it is necessary and proper for the trier of fact to make reasonable inferences about whether the defendant would have engaged in the conduct, or speech, in the absence of blacks/women/etc., or whether the defendant was "motivated by general hostility to the presence of women[/blacks/etc.]"  And, I might add, there is nothing remotely constitutionally problematic about inquiries concerning whether a defendant acted in a discriminatory manner, as long as speech is not being singled out for more restrictive treatment than other forms of discriminatory conduct that cause the same harms -- which is not the case in federal antidiscrimiantion law.  (We've previously been through that discussion at great length, too.)

5.  "Whatever evidentiary route the plaintiff chooses to follow, he or she must always prove that the conduct at issue was not merely tinged with offensive sexual connotations, but actually constituted "discrimina[tion] ... because of ... sex[/race/etc.]"

6.  I might add -- although arguably this was only implicit in Oncale -- that it is not sufficient for federal "hostile environment" liability to show that certain allegedly "harassing" speech would, in general, have a "disparate impact" on one sex, or race, based on the notion that persons of one sex or one race have different "responses" to specific kinds of speech (e.g., sexually explicit speech).  And I'm not aware of any court holding otherwise.  Of course, the foreseeable effect of conduct or speech on a particular audience (e.g., the effect on African-Americans of racist statements or depictions) can be evidence that goes to the question of the defendant's intent to discriminate.  But it does not determine liability vel non.

Marty Lederman (in my personal capacity)



-----Original Message-----
From: Michael McConnell [mailto:mcconnellm at LAW.UTAH.EDU]
Sent: Thursday, March 15, 2001 12:11 PM
To: CONLAWPROF at listserv.ucla.edu@inetgw
Subject: RMichael McConnell [mcconnellm at LAW.UTAH.EDU]e: Anti-abortion
exhibit as sexual harassment?


Thanks to Lynne Henderson for her informative post. But I still find it
difficult to understand the connection between being offended, being
offended on the basis of gender, and being offended discriminatorily.

Lynne writes: The "oversensitive woman" notion--or the humorless
feminist--has been used
by many courts to suggest that *all* or *most* women have to be offended,
and that "ribaldry" in the work place is just something women have to put up
with.  See Susan Estrich *Sex at Work* 43 (?) Stan. L .Rev.  The 9th Circuit
OTOH in an opinion by Koszinski suggests the "reasonable woman"
standard--would the reasonable woman" feel threatened or discriminated
against in a hostile environment case.  *Ellison v. Brady*

Why is "ribaldry in the workplace" something that "women have to put up
with" rather than something -- like unpleasant odors or summer heat -- that
*everyone* has to put up with? Why is "ribaldry" thought to be a
gender-based problem? Is this an empirical observation: that more women than
men object to ribaldry? (If so, this would seem to be a disparate impact
issue.) Or is ribald speech illegal only when the speaker chooses his (or
her) targets on the basis of sex, or perhaps chooses his (or her) subject
matter for the purpose of making people of one particular gender
uncomfortable? (If so, this would seem to be a disparate treatment issue.)
Or is the problem based on the  view (which is controversial, and maybe
wrong) that the subject matter of ribaldry -- sex -- is somehow hostile to
women? (If so, what kind of discrimination theory is this?)

-----Original Message-----
From: Volokh, Eugene [mailto:VOLOKH at mail.law.ucla.edu]
Sent: Friday, March 16, 2001 10:47 AM
To: CONLAWPROF at listserv.ucla.edu@inetgw
Subject: 1st Am and intent to create a offensive environment


   David posts an excellent question; and I agree that speech that is
intended to offend, or intended to create a hostile or offensive
environment, or for that matter intended to lead to illegal conduct, seems
intuitively to be more problematic than speech that is well-intentioned and
merely has some unfortunate side effects.

   Nonetheless, I think that it would be quite dangerous to interpret the
1st Am as allowing such speech to be punished, largely (though not entirely)
because intent is so hard to figure out, and so hard to distinguish from
mere *knowledge* that the speech will offend or will lead some listeners to
behave badly.

   One clear example is the Schenck/Debs/Abrams line of cases -- the problem
there wasn't just that the speech should probably have been protected even
if it was intended to lead to illegal conduct, but rather that it's not
clear that the speakers had such an intent (the Holmes dissent in Abrams of
course makes this point).  Intent is generally hard to determine, but this
difficulty is exacerbated by the human tendency to think the worst of people
with whom you disagree as a substantive matter.  When judges and juries in
the 1910s and 1920s saw those awful
Socialists/Communists/anarchists/pacifists, of course they were willing to
assume that their intentions were the worst.  Add to that the sensible
presumption that people may be assumed to intend the natural consequence of
their actions, and the line between intent and knowledge or even
recklessness become extremely unadministrable.  And though Brandenburg still
maintains the intent requirement, it's the imminence prong that provides the
safe harbor which usually prevents these problems for manifesting themselves
-- without the imminence prong, there'd be far too little protection for
speech that some jury might find to be ill-intentioned.

   Likewise, I think the Court was correct in Garrison v. Louisiana to
reject the knowledge that ill intentions could substitute for a showing of
"actual malice" or even for a showing of falsehood (recall that libel law
used to make truth a defense only when said "with good motives and for
justifiable ends").  First, even ill-intentioned speech may be valuable for
public debate; but beyond that, the line between speech that's motivated by
hatred and speech that's motivated by a genuine desire to inform but that is
coupled with disapproval of the target is very hard to draw.  And I think
one can say the same about Hustler v. Falwell.

   Finally, this very incident -- anti-abortion speech at UT -- illustrates
all these problems:  Whether the speakers intend to create a hostile
environment for women depends on who's doing the mind-reading.  Those who
believe that anti-abortion speech is inherently sexist or misogynistic (I
cited some before) will probably assume this; likewise for those who take
the more modest view that anti-abortion speakers are generally sexist or
generally opposed to the advancement of women or their presence in
universities, the professions, and the workforce.  Those who think
anti-abortion speech is correct on the merits will take the opposite view.
The bottom line will thus have little to do with the speakers' true
intentions, and a lot to do with the political prejudices of the
factfinders.

   Eugene



David Bernstein writes:

I wonder, as a general matter, what the role of intent should be in
these
cases.  Let's assume, counterfactually, that the anti-abortion exhibit
was
*intended* to create a hostile environment for women.  Would this change
the
result?  To take a more likely example, I would generally protect the
right
of male construction workers to post pictures of nude women in their
lockers
(if their employer didn't object).  But let's say a group of all-male
construction workers did not have pictures of nude women in their
lockers,
but started putting them up when the first woman workers is hired,
precisely
with the intent to make her feel unwelcome.  The employer is aware that
the
pictures are being put up for this reason, and fails to order them taken
down.  Can this, consistent with the First Amendment, be used as
evidence in
a hostile environment case?  Does this come within Eugene's definition
of
speech directed at the particular employee?  If so, what if three (or
ten)
women were hired at once, to be greeted with the nude pictures.  (I
don't
want the answer to hang on how bad you think nude pictures are, so feel
free
to substitute, for example, workers starting to show up to work with
t-shirts
with crude anti-woman slogans).

David Bernstein