Anti-abortion exhibit as sexual harassment?

[Leslie Goldstein]

I think Marty is basically right and any decision would depend on the
specific facts, but the key to all this is that the earliest cases arose
where employees were clearly trying to undermine Title VII by harassing
blacks or women into quitting their jobs.  If the harassment is severe
enough, there does get to be an equal opportunity problem.  An
occasional overheard joke should not qualify , in my view as harassment,
nor should sincere expressions of romantic interest that are not of a
sort that is pestering after a clear rebuff.  Why such pestering should
trigger equality of opportunity concerns is an interesting question but
I think that sometimes the environment can be genuinely rendered
intimidating.  I do tend to find some lower courts going overboard in
terms of the satndards that marty recited and with which I agree.
LFG

Michael McConnell wrote:
>
> I understand that speech can be "clearly hostile" to the point of being
> "upsetting to the normal person" and that "no one likes running a gauntlet
> of abuse in order to do their job." But I want to know what makes it
> *discriminatory*. People are nasty to one another for all kinds of reasons.
> On the assumption that the background rule is that people are free to
> express hostility and nastiness to one another (sticks and stones, etc.),
> does this become a Title VII problem because: (1) the speaker is motivated
> by animus against women (or whatever protected group we are talking about)?
> (2) the victim's reaction is connected to being female (or whatever the
> protected category is)? (3) the group to which the victim belongs is "vastly
> outnumbered at work and there are lots of hostile fellow workers making such
> remarks occasionally"? (4) the employer is selective in whom it protects
> against such nastiness? Something else? Please allow me to repeat that I am
> not making an argument, I am asking a question. I am not asking the
> normative question of what the law should be, or the constitutional question
> of how the free speech clause applies, but the positive question of what
> Title VII, as currently interpreted in actual practice, means.
>
> I am most interested in the situation in which workers are talking to one
> another for their own amusement (for example, telling sexual jokes), and a
> third party is offended, thinking that the jokes are sexist. Can that be a
> Title VII violation?
>
> In case Marty Lederman is thinking of reposting his Oncale quote again, let
> me assure him that I have read it, and think I understand it, but do not
> believe that it reflects actual Title VII practice. If the quotation from
> Oncale is controlling, then nasty speech is actionable only when it is
> directed to the victim on account of the victim's sex, race, etc. (my
> category (1) in the preceding paragraph). If taken seriously, that would
> very substantially reduce the number of successfull harassment complaints.
> Maybe that is right, but if so, the legal and employment world has yet to
> notice it.
>
> 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: Tuesday, March 20, 2001 12:30 PM
> 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