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

Sun Mar 7 05:28:17 PST 2010

The question was whether the employer was allowing a hostile work 
environment.  The original example given was of hiring a person with a 
record of exhibiting intemperate hostility to those holding contrary 
views, not a person exhibiting scholarly discourse.  Mightn't there be a 
difference?  Mustn't the alleged victim who protests that the workplace 
has become hostile as to him show a reasonable appearance of injury, the 
result of diatribe as opposed to scholarly theorizing?

rs

Volokh, Eugene wrote:
> 	I share Mark's thinking on this, and just wanted to probe Bill's analysis a bit further.  Say someone comes to you, and says:
>
> 	"I can't stand fundamentalist Christianity, and I often point out its evils and follies online; and naturally I think most fundamentalist Christians are likewise tainted by that evil and foolishness.  I realize that some people think this is itself an evil viewpoint, but it's my view, and I want to express it.  If private employers don't want to do business with me based on their own disapproval, that's fine -- they're not bound by the First Amendment.  But the government can't pressure them into not hiring me based on my anti-Christian views, right?  It can't tell an employer (who might otherwise be inclined to say that my speech is my business) that hiring someone who has expressed anti-Christian views will be legally dangerous for him, right?"
>
> 	As I understand Bill's answer, it is, "Well, actually, the government can indeed impose potential liability on employers if they hire someone who is known to have engaged in anti-Christian speech.  That poses no First Amendment problems.  In life many of us self-censor because others may judge us on the basis of what we say.  And self-censorship based on the risk (imposed on our employers) of potential liability from government action is no different."
>
> 	Can that really be correct?  Isn't this a stark example of government action deterring the expression of certain disfavored views, and thus something that should pose very serious First Amendment concerns?
>
> 	Eugene
>
>   
>> -----Original Message-----
>> From: conlawprof-bounces at lists.ucla.edu [mailto:conlawprof-
>> bounces at lists.ucla.edu] On Behalf Of Kemper, Mark
>> 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
>>
>>
>> _______________________________________________
>> 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
>>
>> Please note that messages sent to this large list cannot be viewed as private.
>> Anyone can subscribe to the list and read messages that are posted; people can
>> read the Web archives; and list members can (rightly or wrongly) forward the
>> messages to others.
>>
>>     
>
> _______________________________________________
> 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
>
> Please note that messages sent to this large list cannot be viewed as private.  Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
>
>
>   