Hostile environment harassment law and blonde jokes

[DavidEBernstein at aol.com]

The fact that many of the examples Eugene cites are from enforcement agencies 
and not courts, especially state enforcement agencies, shows something that's 
often overlooked: agencies enforcing antidiscrimination laws often enforce 
them far more broadly than courts would be inclined to, or indeed would allow 
constitutionally.  Recall that HUD for years during the Clinton Administration 
tried to prosecute homeowners who lobbied against various social service homes 
(halfway houses, homes for the mentally ill, etc), only to be eventually 
slammed down by the 9th Circuit.  Two points on this: (1) state law is often far 
broader than federal law; New Jersey law, for example, states that one racial 
epithet is enough to create a hostile environment; (2) administrative agencies 
tend to be a lot less concerned about constitutional niceties than are courts.  
This makes sense: judges have the role of enforcing the law fairly and also 
enforcing the constitution; agency employees think their role is to fulfill 
whatever mission they have, as best they can.  Indeed, California apparently 
prohibits state agencies from even considering whether their actions are 
unconstitutional (a rule that I think is itself unconstitutional).  
When folks argue that hostile environment law is "no big deal" 
First-Amendment wise because FEDERAL COURTS are interpreting the law narrowly, they are miss
ing a big part of the action.

In a message dated 12/5/2005 7:16:11 PM Eastern Standard Time, 
VOLOKH at law.ucla.edu writes:
    Frank is right that sexual harassment claims aren't easy for
plaintiffs to win.  But the law can have a deterrent effect even if the
risk of loss is comparatively low.  (Recall, among other things, that
many harassment claims are brought together with discrimination claims
and other employment claims after the employee has been fired; it costs
comparatively little for the plaintiff's lawyer to throw in those
claims, if there's some plausible claim on which they rest.)  Plus I
take it that the law would have an especially substantial deterrent
effect if the government agency in charge of enforcing the law is
stressing that it may well cover sexually themed pictures, jokes, and
the like, no?  Would a prudent employer simply say "Nah, DFEH is talking
through its hat, go ahead and say what you like, we'll win at trial"?

    For some cases in which sexually themed jokes, pictures, and the
like seem to have formed a substantial part of the basis for liability,
see Dernovich v. City of Great Falls, Mont. Hum. Rts. Comm'n No.
9401006004 (Nov. 28, 1995) (relying entirely on sexually themed jokes);
Cardin v. Via Tropical Fruits, Inc., No. 88-14201, 1993 U.S. Dist. LEXIS
16302, at *24-25 & n.4 (S.D. Fla. July 9, 1993) (relying in considerable
part though not entirely on such jokes); Slayton v. Ohio Dep't of Youth
Services, 206 F.3d 669 (6th Cir. 2000) (upholding a $125,000 damages
award based in part on a coworker's playing "misogynistic rap music" and
displaying "music videos depict[ing] an array of sexually provocative
conduct"); Hwu v. Chai Kosher, 1992 WL 814983, complaint no. EM01798
(N.Y.C. Comm'n Hum. Rts. July 12) ("The male workers and owners'
sexually explicit comments about oral sex may not have originated with
the intent to offend women in the workplace, but clearly had a
disproportionately demeaning impact on Hwu -- particularly since Hwu was
the only female working in the back room"); Huffman v. City of Prairie
Village, 980 F. Supp. 1192 (D. Kan. 1997) ("Finally we turn to the jokes
and sexual comments.  It is well settled that verbal harassment alone
can produce a sexually hostile environment."; concluding that enough
evidence was presented to go to the jury);  Garber v. City of
Minneapolis, No. MDCR-91262-EM-7, at 1, 4, 19 (Minneapolis Comm'n on
Civ. Rts. July 31, 1996) (finding a hostile environment based in large
part -- though not entirely -- on a supervisor's telling "dirty jokes"
in complainant's presence and making "sexist and degrading remarks about
Complainant and other women in her presence," including referring to his
wife as a "fat bitch" and a "fat broad" in telephone conversations);
Marr v. Widnall, Appeal No. 01941344, 1996 WL 375789, *8 (E.E.O.C. June
27, 1996) (finding a hostile environment based on a "continuous barrage
of patently offensive sexist, racist, and sexual verbal jokes, slurs,
comments and physical gestures");  Rippey v. Danzig, Appeal no.
01983065, 1999 WL 302415, *2 (E.E.O.C. Apr. 27) (concluding that
concluded that an employee's allegation that she was "sexually harassed
by offensive jokes-of-the-day circulated to her and her co-workers, and
by the Supervisor's praise [in a department meeting] of the co-worker
circulating the jokes" was sufficient to state a claim under Title
VII");  Hackman v. Henderson, 2000 WL 310641 (E.E.O.C. Mar. 16) (finding
a hostile environment based on a variety of sexually themed jokes,
banter, and innuendo, even though "the offensive language and conduct
was not directed at complainant," on the grounds that "it is sufficient
if the complainant demonstrates that the environment is offensive");
Spaulding v. West, 1998 WL 745717 (EEOC Oct. 16) (describing harassment
claim brought based on three statements, including a blond joke;
concluding that three statements in five years isn't enough for a
harassment claim, but stressing that the employer "took immediate action
to prevent the reoccur[e]nce of and to mitigate the impact of the
alleged incidents," and that the EEOC "does not condone the several
incidents cited by appellant"); see also Mont. Hum. Rts. Comm'n, Model
Equal Employment Opportunity Policy: A Guide for Employers (no date)
("Examples of prohibited sexual harassment include, but are not limited
to: . . .  Repeated sexual jokes, innuendos, or comments . . . .
Displays of magazines, books, or pictures with a sexual connotation");
Iowa Civil Rights Commission, Sexual Harassment in the Workplace: It's
Against the Law (giving "jokes of a sexual nature" and "cartoons,
drawings, or caricatures of a sexual nature" as examples of a
potentially harassing action).

    Again, if you were an employment lawyer advising an employer,
would you say "Don't worry!  If your employees make sexually themed
jokes, or make sexist remarks -- even ones that aren't targeted to
particular people -- you don't face any material risk of liability.  A
jury or a judge surely won't take the view that these courts and
government agencies seem to have taken."?

    Eugene

David E. Bernstein
Visiting Professor
University of Michigan School of Law
Professor
George Mason University School of Law
http://mason.gmu.edu/~dbernste
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