Hostile environment harassment law and blonde jokes
Michael MASINTER
masinter at nova.edu
Mon Dec 5 14:38:27 PST 2005
My crystal ball is in the shop today, so I'm poorly positioned to predict
the impact of the forthcoming decision in Lyle, but I would think the
grant of review bodes well for the employer. Ellison is virtually unique,
and as noted, involved targeted (and bizarre) speech. The cases the court
collects in Mendoza from many of the other circuits suggest that
untargeted risque speech claims are unlikely to survive summary judgment
under Title VII.
Almost all employee side lawyers operate on contingency fee agreements
backed by the hope of statutory fee awards; given the hostile environment
untargeted speech claims face under Title VII, there's no incentive to
bring them. That's not to say there is no risk for employers (e.g.,
Lyle), but it is to say that employers who wish to protect against sexual
harassment claims are better advised to spend their limited resources on
something other than the regulation of occasional off color jokes.
Michael R. Masinter 3305 College Avenue
Professor of Law Fort Lauderdale, FL 33314
Nova Southeastern University (954) 262-6151 (voice)
Shepard Broad Law Center (954) 262-3835 (fax)
masinter at nova.edu Chair, ACLU of Florida Legal Panel
On Mon, 5 Dec 2005, Volokh, Eugene wrote:
> What would you advise in California, given Lyle v. Warner Bros.,
> the Cal. Ct. App. "Friends" sexual harassment case, 117 Cal.App.4th 1164
> (1994) (many sexually themed jokes, almost entirely not directed at the
> listener), review grtanted, and given Ellison v. Brady, 924 F.2d 872
> (9th Cir. 1991) (which involve directed speech, but only a few
> incidents)?
>
> Naturally, I wouldn't be worried about the First Amendment and
> harassment law if hostile environment claims could only be based on
> unwelcome touching, which when I last checked is not protected by the
> First Amendment. I just don't think that this is the dominant
> understanding of the law as it stands now. Among other things, the
> vagueness of the terms "severe," "pervasive," and "offensive based on
> sex to a reasonable person" makes it likely that different jurisdictions
> would indeed interpret the rules differently.
>
> Eugene
>
> > -----Original Message-----
> > From: Michael MASINTER [mailto:masinter at nova.edu]
> > Sent: Monday, December 05, 2005 2:07 PM
> > To: Volokh, Eugene
> > Cc: conlawprof at lists.ucla.edu
> > Subject: RE: Hostile environment harassment law and blonde jokes
> >
> >
> > In answer to Eugene's question, I would advise an employer in
> > the Eleventh Circuit not to worry about speech based claims
> > of hostile environment / no tangible effects sexual
> > harassment. Mendoza v. Borden, Inc., 195 F.3d 1238 11th Cir.
> > 1999 (en banc), cert. denied, 529 U.S. 1068 (2000), and Gupta
> > v. Florida Board of Regents, 212 F.3d 571 (11th Cir. 2000),
> > cert. denied, 531 U.S. 1076 (2001) all but foreclose hostile
> > environment claims absent unwelcome touching; see also
> > Johnson v. Booker T. Washington Broadcasting Service, Inc.,
> > 234 F.3d 501 (11th Cir. 2000). The Florida courts are, if
> > anything, even more unsympathetic to claims of speech based
> > sexual harassment. Speedway SuperAmerica, LLC v. Dupont, ___
> > So.2d___, 2005 WL 1537247 (Fla. App. 2005).
> >
> > Michael R. Masinter 3305 College Avenue
> > Professor of Law Fort Lauderdale, FL 33314
> > Nova Southeastern University (954) 262-6151 (voice)
> > Shepard Broad Law Center (954) 262-3835 (fax)
> > masinter at nova.edu Chair, ACLU of Florida
> > Legal Panel
> >
> > On Mon, 5 Dec 2005, Volokh, Eugene wrote:
> >
> > > I hope Lynne is right that Bernstein is exaggerating.
> > But just to
> > > make it clear, for speech (or conduct) to be actionable sexual
> > > harassment, it has to be severe OR pervasive, not severe AND
> > > pervasive.
> > >
> > >
> > > Moreover, there is no independent requirement that the
> > speech alter
> > > the terms and conditions of employment. If the factfinder
> > concludes
> > > that the speech is severe OR pervasive enough to create a hostile,
> > > abusive, or offensive work environment for plaintiff or for a
> > > reasonable person, then this creation of the offensive work
> > > environment is seen as itself changing the terms and conditions of
> > > employment.
> > >
> > > Finally, the question is of course how a reasonable
> > employer is to
> > > deal with the risk of liability. The one thing that seems
> > clear, it
> > > seems to me, is that the employer can't just tell its
> > employees "Say
> > > what you like, so long as -- when aggregated with the
> > speech of other
> > > employees, speech that you might never know anything about it -- it
> > > isn't severe or pervasive enough to create a hostile, abusive, or
> > > offensive work environment for the plaintiff or for a reasonable
> > > person." If you were a lawyer advising a reasonably risk-averse
> > > employer about which speech it needs to restrict to
> > minimize the risk
> > > of hostile environment liability, what would you say?
> > >
> > > Eugene
> > >
> > > > -----Original Message-----
> > > > From: Lynne Henderson [mailto:hendersl at ix.netcom.com]
> > > > Sent: Monday, December 05, 2005 1:23 PM
> > > > To: Volokh, Eugene
> > > > Cc: conlawprof at lists.ucla.edu
> > > > Subject: Re: Hostile environment harassment law and blonde jokes
> > > >
> > > >
> > > > As quoted by Nevius, Lee Bernsein is exaggerating or
> > quoted out
> > > > of
> > > > context. Additonally, I suppose, if you are a trainer, you
> > > > want people
> > > > to err on the side of caution and to "keep it simple,
> > stupid". Also,
> > > > of course, you want to create a demand for your
> > "training" business
> > > > services.
> > > >
> > > > You do not need to fret about the constitution or First
> > > > Amendment based
> > > > on this article, however. Isolated or occasional "dumb male"
> > > > or george
> > > > Bush jokes do not a hostile environment make: it has to
> > be sever AND
> > > > pervasive AND alter the conditions of employment/"make it
> > > > harder to do
> > > > the job." Also, almost every hostile environment case at
> > whatever
> > > > level always points out that the "over-" of "hypersensitive"
> > > > plaintiff
> > > > reacting to the occasional "offensive remark", joke, etc.
> > hasn't a
> > > > chance of getting past summary judgment (or in federal
> > cases, getting
> > > > the right to sue letter and then getting past summary judgment)
> > > >
> > > > What *is* different in California from federal law is
> > that employers
> > > > are strictly liable for "hostile environment"
> > > > sexual/racial/religious/etc. harassment. Simply having a
> > reasonable
> > > > policy in place and showing the plaintiff was not
> > reasonable in not
> > > > using the employer's grievance process is not a defense,
> > as it would
> > > > be under *Ellerth*-*Farragher*-*Suders*. So one would
> > > > probably want to
> > > > stress that while marketing one's services or providing
> > legal advice
> > > > about making sure employers attend to the issue of hostile
> > > > environment. Best Lynne
> > > >
> > > > Prof. Lynne Henderson
> > > > On Dec 5, 2005, at 11:09 AM, Volokh, Eugene wrote:
> > > >
> > > > > Any thoughts on this story? Is Lee Bernstein just plain
> > > > wrong on the
> > > > > law, and reasonable employers don't need to prohibit employees'
> > > > > telling "dumb blonde" jokes, Monica Lewinsky jokes, etc.
> > > > (regardless
> > > > > of whether the listeners seem offended)? Or if it is
> > > > really the case
> > > > > that workplace harassment law practically requires
> > > > employers to impose
> > > > > such prohibitions, if they want to avoid lawsuits from
> > > > people who are
> > > > > offended by jokes that they overhear, is that constitutional?
> > > > >
> > > > > I raise this because in past discussions, some people
> > > > suggested that
> > > > > harassment law doesn't impose any such restrictions on
> > > > speech from one
> > > > > willing speaker to another, and only restricts speech that
> > > > is said to
> > > > > a particular person because of her sex, race, etc. Ms.
> > Bernstein
> > > > > seems to say otherwise; is she mistaken?
> > > > >
> > > > > Eugene
> > > > >
> > > > >
> > > > >
> > > > > THE SAN FRANCISCO CHRONICLE (California)
> > > > > December 3, 2005 Saturday
> > > > > HEADLINE: Blonde jokes? Not this season
> > > > > BYLINE: C.W. Nevius
> > > > >
> > > > > . . .
> > > > >
> > > > > Gov. Arnold Schwarzenegger signed AB1825, the workplace
> > harassment
> > > > > bill, in September 2004. The law requires California companies
> > > > "who employ 50
> > > > > or more persons to provide all California-based
> > supervisors with
> > > > > two hours of sexual harassment training every two years.'' (The
> > > > irony that
> > > > > Schwarzenegger experienced his own allegations of improper
> > > > > behavior before he was elected only reinforces the
> > point that it
> > > > > can
> > > > happen at
> > > > > any level.) . . .
> > > > >
> > > > > As a rule [Lee Bernstein, founder of PeoplePlus, a
> > Martinez-based
> > > > > consulting and training company] has [managers'] attention
> > > > by the time
> > > > > she's finished [with her training]. First, she tells
> > managers that
> > > > > they may have to pay some damages out of their own pockets
> > > > -- in some
> > > > > cases the courts do not allow the company to pay. And
> > > > second, she lays
> > > > > out the liability.
> > > > >
> > > >
> > > >
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> >
> >
> >
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