Hostile environment harassment law and blonde jokes

Volokh, Eugene VOLOKH at law.ucla.edu
Tue Dec 6 15:52:13 PST 2005


	I'm not sure prosecutorial overreach is quite right:  Here, the
law is vague and can be interpreted in various ways.  Some courts, some
agencies acting as prosecutors, some agencies acting as adjudicators,
and some private plaintiffs interpret it broadly, to the point that it's
unconstitutional.

	The solution, I think, is for courts to impose a narrowing and
clarifying construction.  Michael, if you think that Robinson is wrong
-- a matter on which I agree with you, but on which I suspect many other
lawprofs on this list disagree -- then the answer is for courts to make
clear that posted pornography, even if it's offensive and misogynistic,
is not legally punishable unless it's targeted to a particular person.
That will help diminish the deterrent effect, by making it clearer to
employers what speech they may tolerate.

	Eugene

> -----Original Message-----
> From: Michael MASINTER [mailto:masinter at nova.edu] 
> Sent: Monday, December 05, 2005 6:59 PM
> To: DavidEBernstein at aol.com
> Cc: Volokh, Eugene; conlawprof at lists.ucla.edu
> Subject: Re: Hostile environment harassment law and blonde jokes
> 
> 
> It should come as no surprise that prosecutors, here 
> administrative enforcement authorities, sometimes overreach.  
> The question is what lesson should be drawn?  Prosecutorial 
> overreach does not generally call into question the 
> constitutionality of a statute; why should it here?
> 
> Enforcement of antidiscrimination statutes can and 
> occasionally has run afoul of the first amendment.  Robinson 
> v. Jacksonville Shipyards remains one of the better examples; 
> that is why the Florida ACLU filed an amicus on behalf of the 
> employer in its appeal to the Eleventh Circuit.  But we 
> argued that the Robinson injunction violated the first 
> amendment, and that the Robinson judgment, tainted as it was 
> by its reliance upon findings of constitutionally protected 
> untargeted speech, should be vacated and remanded for 
> reconsideration and new findings to determine whether based 
> on conduct and targeted speech the employer subjected women 
> to a hostile work environment, not that Title VII could not 
> constitutionally be construed to prohibit sexual harassment.  
> Although the Court of Appeals stayed and eventually dismissed 
> the appeal in Robinson in the wake of the employer's 
> bankruptcy, its later decisions foreclose any real conflict 
> between the statute and the first amendment.
> 
> In short, the cure for prosectuorial overreach under 
> antidiscrimination statutes is no different from the cure for 
> prosecutorial overreach generally.  If Lyle was wrongly 
> decided below, isn't the remedy to reverse the court of 
> appeals rather than to declare California's statute 
> unconstitutional?  Or should the Ninth Circuit have held the 
> Fair Housing Act's prohibition against interference, coercion 
> or intimidation violated the first amendment because HUD 
> (mis)construed its reach?
> 
> 
> 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 DavidEBernstein at aol.com wrote:
> 
> > 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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