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

[Lynne Henderson]

RE: 1st Am and intent to create a offensive environment/Red herringsfirst,
Eugene's response is pretty much right on; note that  there's plenty of
district court decisions even if it is true that many settle or never get
litigated, and there are unreported cases that don't get picked up.  there
are also of course state court decisions under state antidiscrimnation laws.
But I wanted to make   a note on the continuing mixng up of sexual
harassment and hostile environment.  More and more, the distinction gets
blurred. Sexual harassment is a *subset* of sex discrimination and requires
sexualized content.  A hostile environment may or may not involve "sexual"
(eg, things having to do with biological sex or sex acts) harassment.  You
can have a work environment bristiling with hostility to women (or men) that
does not involve sexualized communications, lewd & lascvious remarks
(whatever that means--but pass that), etc.  It can be "women are stupid"
"women should not take jobs away from men" etc. stuff  wihtout pornography
for example.
Lynne
  -----Original Message-----
  From: Discussion list for con law professors
[mailto:CONLAWPROF at listserv.ucla.edu]On Behalf Of Volokh, Eugene
  Sent: Monday, March 19, 2001 3:07 PM
  To: CONLAWPROF at listserv.ucla.edu
  Subject: Re: 1st Am and intent to create a offensive environment/Red herri
ngs


          Marty speaks with great assurance about what he thinks harassment
law is -- he thinks the Court spoke "clearly" on this issue -- but I'm
afraid that I can't share his assurance.

          To begin with, the language that Marty says should reassure us --
the requirement of "discrimination . . . because of
[race/religion/sex/etc.]" -- is far from unambiguous and potentially pretty
broad.

          Marty himself thinks that it covers speech that is aimed at the
entire workplace/university/place of public accommodation but is said "for
the purpose of making [a racial/religious/gender group] feel uncomfortable
and unwanted" (I quote from a post of his in the earlier thread on the
allegedly racially themed display in a Boston bar).  Therefore, if a
factfinder could be persuaded that the anti-abortion display was put up with
the intention of making women students or faculty members feel unwanted,
then presumably even under Marty's analysis, the factfinder should find this
speech to be "harassing."  That seems to me to pose a very serious First
Amendment problem, for the reasons I gave in my response to David
Bernstein's question.

          But beyond this, Marty's interpretation of Oncale rests very
uneasily with what is now conventional wisdom -- uncontroverted by any
employment expert whose work I've read -- that pornography posted in the
workplace is (if "severe or pervasive" enough) sexually harassing, with no
requirement of intention to offend women.  If a man puts up some pinups
simply because he likes looking at pictures of naked or scantily clad women
(and may have had such pictures up since long before women started working
at his job site), that's widely accepted to be sexual harassment.  See,
e.g., among many sources, Hostetler v. Quality Dining, 218 F.3d 798, 807
(7th Cir. 2000) (mentioning this offhandedly, as a settled matter); O'Rourke
v. City of Providence, 235 F.3d 713 (1st Cir. 2000) (likewise treating it as
an accepted principle); White v. N.H. Dep't of Corrections, 221 F.3d 254
(1st Cir. 2000) (discussing coworkers' viewing of pornography as part of the
plaintiffs' case, without any hint that such viewing was actionable only if
it was intended to cause offense to women).

          I'm not saying whether it should be or it shouldn't be, and I'm
certainly not saying that such an application of the law passes 1st Am
muster; all I'm saying is that this is the broad understanding of employment
experts, both before Oncale and after.  Such speech is not covered under
Marty's definition, but it sure seems to be covered under the definitions
that people who practice in the field assume apply.  More broadly, I've seen
no evidence that employment law experts interpret the law the way Marty
does, or treat Oncale (a case that's seen as focused on whether same-sex
harassment qualifies as sexual harassment) as deciding whether sexually
themed pinups, sexually themed jokes, racially offensive statements,
religious proselytizing, and so on are covered by workplace harassment law.

          Marty:  Are you in fact saying that posted pornography can't be
sexually harassing unless it's *intended* to be offensive to women?  If you
are, and you were an employment lawyer in private practice, would you really
make any such assurance to an employer?

          Three short responses to some other points that Marty raised:

          1.  Our discussion of harassment cases involves a lot of
non-court-of-appeals cases because the overwhelming majority of all
harassment cases get settled before the appeal -- or never get filed in ther
first place, because harassment law pressures the employer to restrict the
speech in order to prevent the litigation.  There are of course obvious
financial reasons for this.  (Consider the Boston bar case, which involved a
complaint brought by a state administrative agency, and which was settled
for a few thousand dollars; how many bar owners would have litigated that to
a court of appeals?)  When we deal with abortion or affirmative action, for
instance, we generally deal with cases where the litigants have nonfinancial
motivations, and want to set a precedent; not so with harassment law cases.
That's why focusing exclusively on the tiny fraction of all cases that make
their way to the court of appeals is a mistake.

          2.  When an employer or a university sets up a speech code that's
phrased almost literally in the terms set forth by the law -- or when
employment experts urge employers to set up such codes -- it's a pretty fair
inference that the law is at least in large part responsible for the speech
suppression.  Of course there are other reasons for the suppression, such as
good business or morality; but it seems to me absolutely clear that the
coercive pressure of the law is playing a big role here.  In the
pre-NYT-v.-Sullivan era, there were plenty of business and moral reasons for
publishers not to say potentially false (or even true but seemingly unfair)
things about public figures; but the Court was correct in acknowledging that
the improper chilling effect of libel law added to the quite proper chilling
effect of good sense, good journalistic judgment, and good ethics.  The
evidence of the chilling effect is at least as strong and in my view
considerably stronger as to harassment law.

          3.  Finally, for whatever reason, there are plenty of specific
cases -- including court of appeals cases -- involving speech codes and
harassing speech allegations at educational institutions, the very issue
that triggered this thread.  See, as to speech codes generally, Doe v. Univ.
of Mich (ED Mich); Iota Xi (4th Cir); as to harassment-based student speech
codes, UWM Post (WD Wis); Dambrot (6th Cir); Saxe (3rd Cir., applicable to
K-12 schools as well as colleges and universities); as to allegedly
harassing speech by the instructor in the classroom, Silva v. UNH (DNH);
Cohen (9th Cir.); Dambrot; in a tangential context, the recent Bonnell (6th
Cir.); and other cases.

  Marty Lederman writes:

    -----Original Message-----
    From:   Lederman, Marty [SMTP:Marty.Lederman at USDOJ.GOV]
    Sent:   Friday, March 16, 2001 9:11 AM
    To:     CONLAWPROF at listserv.ucla.edu
    Subject:        Re: 1st Am and intent to create a offensive
environment/Red herrings

    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 discriminat!

    ion 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 work!

    place. 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 n!

    ot 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:   LoAndEd at AOL.COM [SMTP:LoAndEd at AOL.COM]
    Sent:   Thursday, March 15, 2001 6:40 AM
    To:     CONLAWPROF at listserv.ucla.edu
    Subject:        Re: Anti-abortion exhibit as sexual harassment?

    I did not mean to suggest that this is an uninteresting topic, or one
that is
    not listworthy -- merely that we've written the same things over and
over
    again and it appears we have nothing new to say.  As Eugene knows, what
I
    find most interesting is not the "merits," but the fact that the topic
    appears to generate so much sustained outrage and concern, even
though --
    *unlike* sovereign immunity, abortion and affirmative action -- there is
    virtually *no* real issue in the courts that should give anyone any
concern.
    This, too, I'm afraid I've debated with Eugene time and again.  For
those who
    have managed to miss it, a very cursory summary of my argument is as
follows:
     The Court has been clear, most recently in Oncale, that disparate
treatment
    is necessary for T7 liability and that the question is whether the
employer
    conduct would have been the same if the employee's race/sex/etc. had
been
    different.  Courts do not sustain title VII (or title II public
    accommodations) liability on the basis of the sort of "public" speech of
    which Eugene is concerned, nor reject any legitimate First Amendment
defense.
     Indeed, respectable attorneys simply do not bring T7 or T2 claims that
are
    dependent upon the sorts of "public speech" that concerns Eugene (as
opposed
    to speech directed at employees or customers *because of* their
    race/sex/etc.).  In this respect it is telling, I think, that when we on
the
    List debate sovereign immunity, abortion, affirmative action, etc., we
    ordinarily discuss Supreme Court and court of appeals opinions -- i.e.,
we
    debate topics that generate actual disagreement in the courts
themselves.
    But when it comes to the supposed tension between antidiscrimination law
and
    the First Amendment, the "specific cases" that are trotted out are
usually
    anecdotes culled from newspaper articles (in which there is no serious
    question of federal statutory liability), or (as in Eugene's cite of
Cardin
    the other day) old trial court (or state administrative) cases that are
    reported only on WESTLAW or LEXIS, in which the "speech" in question is
    trivial compared to the extensive allegations of outrageously disparate
    treatment of employees on the basis of sex/race/etc.

    Are employers/schools/etc. attempting more and more these days to ensure
that
    their workplaces/classrooms/etc. are more civil and less "hostile"?  Of
    course they are.  Are they attempting to eradicate the sorts of ethnic
and
    racial slurs that not-so-long-ago were ubiquitous in white-male
dominated
    environments?  You bet.  Are they attempting to discourage speech that
is
    very disturbing to many in the workplace/classroom?  Indeed.  But -- and
this
    is the important point for CONLAWPROF purposes -- this trend is
principally
    motivated by simple decency and civility (as well as by a
profit-motivated
    "good business" rationale).  It is not compelled by federal (or, I
suspect,
    state) antidiscrimination laws.  And where the workplace or classroom is
    public, the First Amendment ensures extensive protection for employees
and
    students to speak -- or at least, it used to until courts of appeals
began to
    eviscerate Tinker and Pickering.  (Now *there's* a topic worthy of
serious
    debate!)

    Marty Lederman (in my personal capacity)



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