"Posting rude sex jokes about women on his Facebook 'wall'"

[William Funk]

A potential employee posts on his Facebook page that he likes to refer to
women as "cunts" and "bitches" in their presence because it puts them off
their game and puts him in control.  Presumably this is protected speech --
government cannot sanction him for having this view, expressing this view,
or even for using these terms to refer to  women (at least in a public
forum).  Can the government prohibit an employer from maintaining a
workplace in which male supervisors or co-workers refer to women employees
on the job as cunts and bitches?  I think so.  And I think it should be so.
Would it be improper for an employer not to hire someone whose Facebook page
indicated this predisposition?  I don't think so.  
The problem, I believe, is not in the employer taking rational action to
avoid hiring employees likely to subject the employer to legal liability, it
is in what will subject the employer to legal liability in fact.  Therefore,
again I believe, the issue we should focus on is what constitutes a hostile
working environment and what the employer's duty is to avoid it.  Thus, I
don't think an employer should be liable because someone tells a dirty joke
at the water fountain, and certainly not if the employee has not first
complained to the employer regarding what the employee believes is a hostile
environment.  
Bill Funk 

-----Original Message-----
From: Kemper, Mark [mailto:MKemper at bridgew.edu] 
Sent: Saturday, March 06, 2010 10:44 AM
To: William Funk; conlawprof at lists.ucla.edu
Subject: RE: "Posting rude sex jokes about women on his Facebook 'wall'"

I disagree with the last line of Bill's comment below. It disturbs me since
the government is the elephant in the room of workplace regulations, and the
First Amendment is designed to limit the power of the state, not that of
private actors.  I believe that workplace harassment laws of the hostile
environment variety do pose real problems to liberty if they radiate out and
have significant chilling effects on expressive behavior outside of the
workplace (whether they do have significant chilling effects is an empirical
question to which I don't know the answer). It may be a necessary evil, but
it is still something that should trouble us in a free society.

Mark
________________________________________
From: conlawprof-bounces at lists.ucla.edu [conlawprof-bounces at lists.ucla.edu]
On Behalf Of William Funk [funk at lclark.edu]
Sent: Friday, March 05, 2010 4:27 PM
To: conlawprof at lists.ucla.edu
Subject: RE: "Posting rude sex jokes about women on his Facebook 'wall'"

Neither the article nor Eugene's hypo involving jokes about fundamentalist
Christians bothers me.  I start with not being bothered by an employment law
that protects a person from a hostile working environment (although I think
I might be closer to Eugene in what I would actually consider a hostile
working environment).  The employer in choosing whom to employ looks at past
history of the person to make predictions about the future.  If a person has
shown a tendency to harass other employees in the past, we would not be
surprised that the employer might be reluctant to hire the person.  If the
other person has only engaged in rude, off-color, and/or offensive jokes not
directed at the butt of those jokes, the person might be less likely to
create the hostile work environment than the serial harasser, but the
employer (given other equally qualified applicants for the job) might well
view the tendency to tell these jokes without sensitivity to the potential
audience as an unnecessary risk.   In life many of us self-censor because
others may judge us on the basis of what we say.  It does not disturb me
that here the employer's concern stems from potential liability from
government action, as opposed to stemming from the employer's concerns
regarding other employees' or customers' reactions.
Bill Funk

From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Friday, March 05, 2010 10:43 AM
To: 'conlawprof at lists.ucla.edu'
Subject: "Posting rude sex jokes about women on his Facebook 'wall'"

Any thoughts about this advice - given sincerely, I think, with someone who
has no axe to grind - in a New York Post article about the dangers of
posting things on the Web?  "As an employer, you're taking a chance when you
hire someone. No one wants to hire a dud, but the stakes are larger than
that. What if someone has a history of, say, posting rude sex jokes about
women on his Facebook 'wall' and turns out to be much the same around the
coffee pot at work? No sex-harassment lawyer is going to fail to tell the
jury that the company would have known it was making a hostile-workplace
hire if only it had Googled Mr. Rufus T. Pervinator before putting him on
the payroll."

Is the advice an exaggerated views of the dangers posed by the law here?
Should it give us pause that the law, by imposing liability for "sex jokes
about women" at the office, and by allowing past off-the-job statements to
be used as evidence in hostile environment cases, is deterring people from
speaking freely outside the office?  (Note that the statement isn't just
that private employers will be reluctant to hire employees who express
certain viewpoints because of worries about productivity or good judgment;
rather, the statement is that employers will be reluctant to hire employees
who express certain viewpoints because of worries that a government-run
legal process will impose liability based on future expressions of such
viewpoints, coupled with the evidence of the past expressions of such
viewpoints.)  Or is this a laudable result, or perhaps at worst a necessary
evil?

Relatedly, I take it the same advice would apply to worries about religious
harassment claims (though I acknowledge that those claims are rarer than
sexual harassment claims):  "As an employer, you're taking a chance when you
hire someone. No one wants to hire a dud, but the stakes are larger than
that. What if someone has a history of, say, posting [nasty remarks about
fundamentalist Christians] on his Facebook 'wall' and turns out to be much
the same around the coffee pot at work? No [religious]-harassment lawyer is
going to fail to tell the jury that the company would have known it was
making a hostile-workplace hire if only it had Googled Mr.
[Fundamentalist-Christians-Are-Idiots] before putting him on the payroll."
Should that worry us even if the "sex jokes about women" advice doesn't?

Eugene