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

Glenn Reynolds Reynolds at LIBRA.LAW.UTK.EDU
Sun Mar 18 14:52:07 PST 2001

I think it would be very useful if DOJ or EEOC issued a statement
setting forth an interpretation like Marty's.

Date sent:              Fri, 16 Mar 2001 13:11:08 -0400
Send reply to:          Discussion list for con law professors              <CONLAWPROF at LISTSERV.UCLA.EDU>
From:                   "Lederman, Marty" <Marty.Lederman at USDOJ.GOV>
Subject:                Re: 1st Am and intent to create a offensive environment/Red
To:                     CONLAWPROF at LISTSERV.UCLA.EDU

> 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.C
> 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
> 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 consti
tuted "discrimina[tion] ... because of ... sex[/race/etc.]"
> 6.  I might add -- although arguably this was only implicit in Oncale -- that it is not sufficien
t for federal "hostile environment" liability to show that certain allegedly "harassing" speech wou
ld, 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 stateme
nts or depictions) can be evidence that goes to the question of the defendant's intent to discrimin
ate.  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

Prof. Glenn Harlan Reynolds
College of Law, University of Tennessee
1505 W. Cumberland Ave., Knoxville, TN  37996-1810

Attempt no more good than the people can bear.  --Thomas Jefferson

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