Hostile environment harassment law and blonde jokes

Janet C. Alexander jca at
Mon Dec 5 16:06:40 PST 2005

         Doug's post is an interesting illustration of the proposition that 
in many areas "the law" is not what courts decide, or even lawyers' or 
professors' best prediction of what courts will decide, but what law firms 
(reinforced through CLE programs, etc.) advise their clients to do.  (I say 
"law firms" advisedly, because it is large law firms, not solo 
practitioners, that set this kind of industry standard.)
         Corporations are not interested, usually, in determining the 
farthest they can go in permitting behavior that might be considered 
harassment.  They are interested in not being sued.  Their lawyers will 
advise them to stop short of the cliff, and their policy manuals will 
reflect that advice.  It's only after somebody goes up to or over the edge 
and gets sued that they argue aggressively to extend the line.  So looking 
to litigated cases may not give an accurate picture of what "the law" is on 
the ground.
         Janet Alexander

At 03:51 PM 12/5/2005, Douglas Laycock wrote:
>         I don't follow this stuff closely.  But it is not surprising
>that enforcement agencies and movement lawyers would state the most
>aggressive view of the law, and that defense lawyers and employment
>consultants would state the most risk-averse view of the law, so that
>both might be giving advice that is inconsistent with actual results in
>court.  Unless those results are unanimous, and the lines drawn are
>unusually clear, the enforcers don't have to give up being aggressive
>and the defense lawyers don't have to give up being risk averse.
>Douglas Laycock
>University of Texas Law School
>727 E. Dean Keeton St.
>Austin, TX  78705
>    512-232-1341 (phone)
>    512-471-6988 (fax)
>-----Original Message-----
>From: conlawprof-bounces at
>[mailto:conlawprof-bounces at] On Behalf Of Volokh, Eugene
>Sent: Monday, December 05, 2005 5:25 PM
>To: conlawprof at
>Subject: RE: Hostile environment harassment law and blonde jokes
>         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?
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Janet Cooper Alexander
Frederick I. Richman Professor of Law
Stanford Law School
559 Nathan Abbott Way
Stanford, California 94305-8610

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