Anti-abortion exhibit as sexual harassment?

[Lynne Henderson]

Members of the list might be interested in a new empirical study of sexual
harassment cases in Cornell L. Rev. Ann Juliano & Stewart J. Schwab, *the
Sweep of Sexual Harassment Cases,* 86 Cornell L. rev. 548 (2001)the authors
studied 650 cases, district and appellate levels.  (there appears to be a
significant difference among circuits on plaintiff success/defendant success
on appeal)
      the authors note, "Quite simply, the horror stories are not true.  Our
findings do not support the claims that plaintiffs succeed on (sic) cases
alleging mere jokes or a single incident of allegedly harassing behavior.
Here we conclude that sucessful claims involve allegations of physical
harassment and verbal harassment of a sexual naturedirected at the
plaintiff.  the existence, or lack thereof, of a grievance program greatly
affects the employer's liability as does the employer's prior knowledge of
the harassment." p. 554.



Only one of 650 cases "involves allegations of pornography and graffiti in
the absence of othe rconduct, and the plaintiff lost. . . .When plaintiffs
allege pornography or graffiti in addition to other conduct, they are
successful a remarkable 80% of the time." (p. 589, discussing *robinson v.
Jacksonville Shipyards* briefly.)
Lynne

-----Original Message-----
From: Discussion list for con law professors
[mailto:CONLAWPROF at listserv.ucla.edu]On Behalf Of Leslie Goldstein
Sent: Tuesday, March 20, 2001 11:30 AM
To: CONLAWPROF at listserv.ucla.edu
Subject: Re: Anti-abortion exhibit as sexual harassment?


What the remarks (in the film) were is nasty in the sense of clearly
hostile to the point that hearing a lot of it would be upsetting to the
normal person.  No one likes running a gauntlet of abuse in order to do
their job.  A stray remark from the occasional jerk is no big deal, but
if one's own group is vastly outnumbered at work and there are lots of
hostile fellow workers making such remarks occasionally, it can add up,
I imagine, to something that feels like a gauntlet of abuse.  Of course
few employees are as clever as Nicholson's screenwriter in coming up
with something that is on the surface humor but underneath bitingly
hostile.  Most such cracks would just sound obviously hostile, I
imagine.  Not to hit one of your buttons (or to pretend to even) but I
am guessing that the kind of anti-gay ostensible humor AIMED DIRECTLY at
a listening gay person on the job might be the sort of "humor" that
really fits as (hostile)harassment.  I have in mind legislation that
identifies sexual orientation as protected, but of course the Sup. Ct.
seemed to include it as "on the basis of sex," in Oncale, right?
Leslie

Michael McConnell wrote:
>
> I did not mean to express an opinion, but to ask the question, which is
> genuine. Using the example of the film (or any other plausible example),
is
> it possible to express in legal doctrine what it was about the speech that
> made it discriminatory -- as opposed to nasty, oppressive, or
objectionable?
>
> Michael W. McConnell
> University of Utah College of Law
> 332 S. 1400 East Room 102
> Salt Lake City, UT 84112
>
> -----Original Message-----
> From: Leslie Goldstein [mailto:lesl at UDEL.EDU]
> Sent: Friday, March 16, 2001 9:43 AM
> To: CONLAWPROF at listserv.ucla.edu
> Subject: Re: Anti-abortion exhibit as sexual harassment?
>
> I reply to Mike,
> I used to think the same way until I saw the film with Jack Nicholson
> and (I think) Demi Moore.  I think it was "A FEW GOOD MEN"? In it he
> harshly harasses her in a could-be-interpreted-as-jocular way using
> sexaual innuendo.  It was a powerful scene for demonstrating how remarks
> simply put into a transcript out of context might look like lame humor
> but in context have a clearly hostile content.  If you have not seen the
> film I recommend you rent it just to see that scene.
> respectfully,
> Leslie Goldstein
>
> Michael McConnell wrote:
> >
> > 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?)
> >
> > Michael W. McConnell
> > University of Utah College of Law
> > 332 S. 1400 East Room 102
> > Salt Lake City, UT 84112