Hostile environment harassment law and blonde jokes

Frank Cross crossf at mail.utexas.edu
Mon Dec 5 15:51:31 PST 2005


 From the cases I see, this is a vast overstatement.
Which makes sense, given the incentives.  Anyone who is advising a 
business, especially the government, has a strong incentive to exaggerate 
the law's prohibitions.  They suffer nothing from overprotective 
advice.  But they could have a problem if they tell a company you can do 
something that later proves illegal.

There are a lot of sexual harassment cases brought, and quite a few 
decisions.  Many for defendants.  I've read a fair number and come across 
nothing resembling liability for telling blonde jokes.


At 05:25 PM 12/5/2005, Volokh, Eugene wrote:
>         From your lips to God's ears, Michael, as to Lyle.  But is it
>really the case that was seems like conventional wisdom among employment
>lawyers -- buttressed by the statements of various government agencies
>-- about the scope of sexual harassment law is simply wrong?  Here's
>what a California Department of Fair Employment and Housing publication
>has to say (http://www.dfeh.ca.gov/Publications/DFEH%20185.pdf):
>
>The Facts About Sexual Harassment
>
>The Fair Employment and Housing Act (FEHA)
>defines sexual harassment as harassment
>based on sex or of a sexual nature; gender
>harassment; and harassment based on pregnancy,
>childbirth, or related medical conditions.
>The definition of sexual harassment
>includes many forms of offensive behavior,
>including harassment of a person of the
>same gender as the harasser. The following is
>a partial list of types of sexual harassment:
>* Unwanted sexual advances
>* Offering employment benefits in
>exchange for sexual favors
>* Actual or threatened retaliation
>* Leering; making sexual gestures; or
>displaying sexually suggestive objects,
>pictures, cartoons, or posters
>* Making or using derogatory comments,
>epithets, slurs, or jokes
>* Sexual comments including graphic
>comments about an individual's body;
>sexually degrading words used to
>describe an individual; or suggestive or
>obscene letters, notes, or invitations
>* Physical touching or assault, as well as
>impeding or blocking movements
>
>         Is it just wrong, for instance about "displaying sexually
>suggestive objects, pictures, cartoons, or posters"?  Or even about
>"making or using derogatory comments, epithets, slurs, or jokes," at
>least if they aren't targeted at a particular person (something that the
>definition never requires)?
>
>         Eugene
>
> > -----Original Message-----
> > From: Michael MASINTER [mailto:masinter at nova.edu]
> > Sent: Monday, December 05, 2005 2:38 PM
> > To: Volokh, Eugene
> > Cc: conlawprof at lists.ucla.edu
> > Subject: RE: Hostile environment harassment law and blonde jokes
> >
> >
> > 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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**********************************************************

Frank Cross
McCombs School of Business
The University of Texas at Austin
1 University Station B6000
Austin, TX 78712-1178
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