Hostile environment harassment law and blonde jokes

Volokh, Eugene VOLOKH at law.ucla.edu
Mon Dec 5 16:27:51 PST 2005


	Surely Frank is right -- just as many newspapers might well
adopt demanding rules for their columnists and op-ed writers restricting
profanity, personal attacks, intentional infliction of emotional
distress on public figures, revelation of rape victims' names, negligent
falsehoods about public figures, and the like.

	Yet I take it that we'd still worry that vague rules restricting
such speech might violate the First Amendment, because they might
involve government power being used to pressure newspapers to restrict
speech.  That a private entity is entitled to restrict speech on its
property doesn't mean that the government is entitled to pressure such
an entity to impose such restrictions.

	In fact, when the government is imposing liability on A
(employer, educator, place of public accommodation, landlord) for speech
by Bs (employees, students, patrons, tenants) that are under its
control, we should be *more* worried when the speech "is an area of
limited economic value to [A]."  Even a modest risk of liability would
then pressure such intermediary As to restrict speech by Bs -- the
expected cost of tolerance may be modest (substantial damages but
multiplied by modest risk), but the expected cost of suppression may be
smaller still.

	Eugene

> -----Original Message-----
> From: Frank Cross [mailto:crossf at mail.utexas.edu] 
> Sent: Monday, December 05, 2005 4:19 PM
> To: Janet C. Alexander; Douglas Laycock; Volokh, Eugene; 
> conlawprof at lists.ucla.edu
> Subject: RE: Hostile environment harassment law and blonde jokes
> 
> 
> 
> 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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> >>or wrongly) forward the messages to others.
> >
> >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
> >
> >Please note that messages sent to this large list cannot be viewed as
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> >posted; people can read the Web archives; and list members 
> can (rightly or 
> >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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