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Severe or Persuasive Harassment:

A surprisingly common legal concept, it turns out: "Severe or persuasive" and "severe and persuasive" appear nearly 100 times in Westlaw-searchable cases, and my quick glance at some originals suggests that this isn't just a Westlaw glitch.

The actual legal phrase, of course, is "severe or pervasive," which is what speech or conduct must be in order to create a "hostile, abusive, or offensive work [or educational] environment." "Severe or persuasive," though passes the spell-checkers and the casual eyeballing.

Malvolio:
Passes casual eyeballing? I re-read the post, oh, twice before I figured out what I was missing.
1.17.2008 6:30pm
Lee2 (mail):
I read it, not getting the point either, as I interpreted it has severe harassment that results in the harassed person giving into the harassing person's demands.
1.17.2008 6:32pm
Lee2 (mail):
"as", not "has"
1.17.2008 6:32pm
Dave N (mail):
I was trying to figure out what "persuasive harrassment" would be.

A: Hey Shirley, you really are a slut.

Shirley: Now that you've said that, I can see where you are coming from in calling me that.

1.17.2008 6:51pm
frankcross (mail):
It's the persuasive sexual harassment that so often results in long term trouble.
1.17.2008 6:52pm
alias:
If the harassment is persuasive, then it's hard to argue that it's actual harassment.
1.17.2008 6:55pm
alias:
Unless the persuasion involves threats or other improper influence, of course...
1.17.2008 6:56pm
Antinome (mail) (www):
Got a similar thing. Back when I did maritime law there were a series of cases in the Fifth Circuit that set the duty a ship owed to a longshoreman based on the US Supreme Court case of Scindia. Several cases stated "the owner has a duty to avoid exposing longshoremen to harm from hazards under the act or control of the vessel."

Almost seems to make sense til you wonder what the heck "act or control" means. Well nothing as it turns out, the standard was "active control" It was in fact a typo in a quote in one case that got repeated through a number of other cases no longer as a quote but as a statement of the rule.

A quick Lexis search seems to indicate they fixed it at some point, I am not sure when, been a long time since I did a longshore case.
1.17.2008 6:59pm
Ted Frank (www):
"Bendectin" is spelled wrong in a huge number of cases, making legal research on the subject annoyingly difficult.
1.17.2008 7:06pm
Fub:
"Severe or persuasive," though passes the spell-checkers and the casual eyeballing.
The same type of error is abroad in the wild for all intensive purposes.
1.17.2008 8:38pm
Anderson (mail):
"Persuasive" is, evidently, pervasive. So they're synonyms, right?
1.17.2008 9:15pm
King:
I also missed the error on the first read.

Ironically, in my experience (as a defense side employment attorney), most sexual harassment is notable for its utter lack of persuasiveness. While I suppose there are a few smooth predator types who can subtly work some kind of implicit job threat/reward into their otherwise effective "rap", the vast majority of the cases I've seen are from guys who think it's a real turn-on for the object of their affection to be subjected to explicit photos or worse (groping, etc.). In fact, I imagine the pop psychology explanation would be that they're not trying to persuade the female employee into having sex with them at all, but rather acting out some other frustration. In any case, severe or not, the hostile work environment is rarely "persuasive" to the victim. So, from the employer's side, I say let's keep up the accidental change -- it's much easier to defend these cases with a "severe or persuasive" standard than using "severe or pervasive."
1.17.2008 9:19pm
Alan Gunn (mail):
Reminds me of the very common reference in the military to the "improved explosive device," commonly called the "IED."
1.17.2008 9:52pm
Can't find a good name:
I once saw a videocassette for which the box claimed it had been rated R for "persuasive nudity."
1.17.2008 11:56pm
not a courtroom advocate:
severe and persuasive ... sounds like something a courtroom advocate would aspire to
1.18.2008 12:43am
Milhouse (www):
If the harassment was enough to persuade the victim to take some action, then it must have been severe.
1.18.2008 1:13am
Federal Dog:
I remain unconvinced.
1.18.2008 7:33am
Falafalafocus (mail):
Why no discussion regarding whether persuasive harrassment violates the Due Frocess Clause?
1.18.2008 7:50am
Bottomfish (mail):
Sounds as if a lot of the people who type these court documents are half asleep.
1.18.2008 8:33am
Virginian:

In any case, severe or not, the hostile work environment is rarely "persuasive" to the victim.


Isn't that tautological? If the "victim" is persuaded, she would not consider it a hostile work environment.
1.18.2008 9:43am
CheckEnclosed (mail):
Is there any casual relation between reference to severe or persuasive conduct in opinions, and the quality of same? What about findings concerning a hostel environment?
1.18.2008 11:13am
anonthu:
...casual relation..
...hostel environment...


well played
1.18.2008 11:58am
Hans Bader (mail):
Note that the test is only severe OR pervasive in the workplace and some other settings. The test is severe AND pervasive in the SCHOOL setting. AND, not OR.

In the SCHOOL setting, a student must show that the harassment is severe AND pervasive to recover damages, as the Supreme Court emphasized no less than four times in Davis v. Monroe County Board of Education, 526 U.S. 629 (1999).

Yet some lower courts ignore this, allowing students to recover for harassment that is pervasive but not severe (like dirty jokes that are commonplace but not life-altering), even though the Supreme Court clearly required that a Title IX plaintiff show that the harassment is severe AND pervasive, requiring a showing of severity in any case.

(Other lower courts, by contrast, properly require severe AND pervasive harassment, as the Supreme Court emphasized).

Moreover, unlike in the Title VII workplace context, where a single act of physical harassment can be severe enough for liability, the Court's opinion in Davis made clear that a single act is not enough under Title IX.
1.18.2008 12:49pm
Sarah (mail) (www):
I thought for sure, reading this post, that someone would make a Clinton joke in the comments. Oh, well.

I'm honestly surprised that it only shows up 100 times. If you reverse the "s" and "v" (persavive) all of my spell-checkers suggest "persuasive" as the top (or only) fix. I guess lawyers are better typists than I have been led to believe from my admittedly limited exposure to the general law school population -- or maybe the fact that there are two letters between "s" and "v" in this case serves as a deterrent to that particular typo. If you flat-out don't know how to spell it, and put in "purvasive," all the spell-checkers I have correctly suggest "pervasive" as the fix.
1.18.2008 3:39pm
IB Bill (mail) (www):
I used to be a legal reporter, and I had a terrible habit of writing "motion to discuss" instead of "motion to dismiss." The copy editors used to laugh about it, until they got annoyed.

Motion to discuss: The court forces you to talk about whatever is bothering the other person.
1.18.2008 3:42pm
lindaseebach (mail):
Errors of this kind are (whimsically) called "eggcorns," as in "mighty oaks from tiny eggcorns grow." Chris Waigl maintains a list at http://eggcorns.lascribe.net/about/ and this one appears to be new.

Waigl:

Erroneous as it may be, the substitution involved more than just ignorance: an acorn is more or less shaped like an egg; and it is a seed, just like grains of corn. So if you don't know how acorn is spelled, egg corn actually makes sense.

. . .

The crucial element is that the new form makes sense: for anyone except lexicographers or other people trained in etymology, more sense than the original form in many cases.
1.18.2008 11:34pm
Peter B. Nordberg (mail) (www):
"The actual legal phrase"? What inspires this unwonted outburst of prescriptivism?
1.19.2008 3:01pm