Hostile environment harassment law and blonde jokes

Frank Cross crossf at mail.utexas.edu
Mon Dec 5 16:18:34 PST 2005


Well, there's some truth to Janet Alexander's point but it has to be 
caveated.  Many business do go right up to the line, or even past 
it.  Presumably because they reap some benefit from risk-taking about legality.

Having a workplace containing sexual jokes, though, is an area of limited 
economic value to business.  Consequently, they are unlikely to want to 
push the boundary of the law here.  Indeed, many businesses might well 
adopt comparably strict sexual harassment policies today, absent the law, 
for HR department reasons.


At 06:06 PM 12/5/2005, Janet C. Alexander wrote:
>         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 lists.ucla.edu
>>[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Volokh, Eugene
>>Sent: Monday, December 05, 2005 5:25 PM
>>To: conlawprof at lists.ucla.edu
>>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
>650.723.2892
>_______________________________________________
>To post, send message to Conlawprof at lists.ucla.edu
>To subscribe, unsubscribe, change options, or get password, see 
>http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
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>Please note that messages sent to this large list cannot be viewed as 
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>wrongly) forward the messages to others.

**********************************************************

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



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