Hostile environment harassment law and blonde jokes

Frank Cross crossf at mail.utexas.edu
Mon Dec 5 16:35:50 PST 2005


Well, I wonder about the provenance or use of this list.  I looked up only 
the Slayton case, and it involved much more bad behavior than the list 
suggested, including inmates stripping to show the plaintiff erect penises, 
and her supervisor telling her to check on an inmate who was 
masturbating.  And the verbal harassment sounded awfully pervasive and 
significant.  "Relying in part" should have read "referencing in extremely 
small part."

But it's the law, there are going to be outliers.  As I said earlier, if an 
employer gets no material benefit from sexual jokes, its going to play it 
safe.  That doesn't seem too objectionable.


At 06:15 PM 12/5/2005, Volokh, Eugene wrote:
>         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
>
>-----Original Message-----
>From: Frank Cross [mailto:crossf at mail.utexas.edu]
>Sent: Monday, December 05, 2005 3:52 PM
>To: Volokh, Eugene; conlawprof at lists.ucla.edu
>Subject: RE: Hostile environment harassment law and blonde jokes
>
>
>
> >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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>_______________________________________________
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>**********************************************************
>
>Frank Cross
>McCombs School of Business
>The University of Texas at Austin
>1 University Station B6000
>Austin, TX 78712-1178
>_______________________________________________
>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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**********************************************************

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



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