Appropos of recent discussion of Hostile Environment Law
VOLOKH at law.ucla.edu
Thu Dec 8 13:40:34 PST 2005
Well, I take it that it depends on the state human rights
commission. In Jeff's own Montana, for instance, we have Dernovich v.
City of Great Falls, Mont. Hum. Rts. Comm'n No. 9401006004 (Nov. 28,
1995), in which the Montana Human Rights Commission has found a hostile
environment based just on off-color jokes and cartoons displayed in the
workplace. None of the jokes were said specifically to the complainant;
none referred to her; the cartoons were distributed by men and women
alike, apparently once or twice a month over several years; the cartoons
weren't even sexist or misogynistic.
The Commission, however, was not amused. It concluded that the
jokes "ha[d] no humorous value to a reasonable person," and "offended
[complainant] as a woman." The Commission ordered the city to pay
damages, to "not . . . permit, tolerate, or condone the sexual
harassment of any employee" (apparently including such humor), and to
"evaluate on an annual basis the performance of each department head on
the basis of the quality and success of their efforts to implement and
enforce the antidiscrimination policies." 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
I'm sure that some other states (or even some other commission
members in Montana; I don't want what the Montana Commission is like
today) might take a different view. But that's the point: Harassment
law's standard -- that the speech or conduct be severe or pervasive
enough to create a hostile, abusive, or offensive environment based on
race, religion, sex, etc. for the plaintiff and for a reasonable person
-- is so vague that it's hard to tell which way a judge, jury, or
commission member will go. And such vagueness, as the Court has
repeatedly pointed out in other First Amendment vagueness cases, tends
to lead cautious people to "steer far wider of the unlawful zone,"
precisely because they can't be sure how the speech restriction will be
As to one-incident cases, many states generally reject them,
especially when the incident is solely speech. Some courts and
commissions, though, take a different view. See Taylor v. Metzger, 152
N.J. 490 (single racial slur); MCAD v. Aramark Corp., 2003 WL 22849909,
*8 (Mass. Comm'n Against Disc. 2003) (same); MCAD v. Elite Protective
Servs., 2002 WL 31318604, *5 (Mass. Comm'n Against Disc. 2002) (same);
Reid v. O'Leary, No. CIV. A. 96-401, 1996 WL 411494 (D.D.C. July 15,
1996) (single epithet); Yabuki v. Department of the Army, EEOC Req. No.
05920778 (June 4, 1993) (single incident containing a personal abusive
statement and a negative comment concerning Japanese people); Nguyen v.
Runyon, EEOC Appeal No. 01963721, 1997 WL 40256 (Jan. 22, 1997) (single
incident of "supervisor [speaking to plaintiff] in a disrespectful
manner, ma[king] threatening gestures and insult[ing] him by using
racial slurs in front of co-workers"); Gamboa v. United States Postal
Service, EEOC Request No. 05890633 (Aug. 31, 1989) (single incident in
which hearing-disabled complainant asked a supervisor who was speaking
to move so she could read his lips, and the supervisor responded by
"harshly order[ing complainant] to move to another area" and then "told
her to move again," which led complainant to feel humiliated); Daniels
v. Essex Group, Inc., 937 F.2d 1264, 1274 n.4 (7th Cir. 1991) (stating
that a single instance of racial harassment can be "severe or pervasive"
enough). See also Maxine H. Neuhauser & Mark D. Lurie, Extending the
Scope of the Law Against Discrimination, N.J.L.J., June 7, 1999, at 32
("Even one angry outburst, ill-advised joke or insensitive comment holds
the potential for litigation liability [under New Jersey law]."). I
should say, by the way, that I have little First Amendment problem with
imposing single-incident liability based on one-to-one speech said
directly to the insulted person, so I think some of these decisions may
be constitutionally permissible; my point here is simply that things
vary from jurisdiction to jurisdiction.
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Jeff Renz
Sent: Thursday, December 08, 2005 12:20 PM
To: conlawprof at lists.ucla.edu
Subject: Appropos of recent discussion of Hostile Environment Law
Hank Chambers is right. I may be one of the few on the list to have
regularly represented plaintiffs in hostile environment cases. They are
not difficult to prove but it is difficult to persuade a fact-finder,
including especially the professional fact-finders one appears before in
state human rights commmissions. I would rarely take a one incident
case and then only when the incident was so egregious that it could not
be considered to be anything but an attempt to drive the worker away.
The strong plaintiffs' cases settle because the administrative process
is designed to encourage settlement. So it is no coincidence that many
reported cases sound frivolous.
Prof. Jeffrey T. Renz
School of Law
The University of Montana
Missoula, Montana 59812
jeff.renz at umontana.edu
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