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Dangerous First Amendment Analysis in Anti-Islam/Anti-Muslim/Anti-Arab Speech Case:

I blogged below about the details of the case — a court concludes that an employee can sue someone for repeatedly circulating in the workplace e-mail with anti-Islam/anti-Muslim/anti-Arab statements — and I've written elsewhere about why such liability is unconstitutional. But I want to focus a bit on the court's First Amendment analysis, because it's even more dangerous to free speech than some other pro-harassment-law analyses have been.

Here's how the court reasons:

Tefft contends that his emails were protected speech under the First Amendment. Specifically, he argues that the emails were a form of political speech and that he cannot be held liable for their content under Section 1981 or its state analogs. However, any restraints on speech stemming from these anti-discrimination provisions are merely incidental to the statutes' objective of remedying racial discrimination. As the Supreme Court has noted, "[w]here the government does not target conduct on the basis of its expressive content, acts are not shielded from regulation merely because they express a discriminatory idea or philosophy." R.A.V. v. St. Paul, 505 U.S. 377, 389 (1992).

That's wrong because hostile environment harassment law applies to speech in these cases precisely because of its expressive content: It is the content and the viewpoint of the e-mail that creates the offensive environment. (You could imagine a hostile environment created by the nonexpressive content of someone's conduct, for instance because the conduct is unwanted touching, but that's not so here.) As I argue at length in my Cornell article, a law that applies to speech precisely because of what the speech communicates — and the harms that might flow from such communication — can't just be dismissed as "incidental" regulation.

But even setting aside the doctrine, consider the implications of what the court is saying. Just as discrimination based on religion and other criteria is barred in employment, it's also banned in education and in public accommodations. That's the reason for the spate of campus speech codes written in "hostile educational environment" terms, lawsuits based on alleged "hostile educational environments" and lawsuits based on alleged "hostile public accommodations environments" — for instance, when a bar, library, club, or other business engages in (or simply allows) speech that offends some patrons based on religion, sex, race, and the like. And the court's First Amendment analysis would apply to those things precisely the same way, because all these doctrines are structurally identical, and "any restraints on speech stemming from these anti-discrimination provisions are merely incidental to the statutes' objective of remedying racial discrimination."

There would thus be no First Amendment problem with imposing liability on a university that tolerates anti-Islam/anti-Muslim/anti-Arab speech (or for that matter anti-Christian speech, anti-Mormon speech, and the like). There would be no First Amendment problem with imposing liability on a library that doesn't properly filter access to material that might offend Muslim patrons, or on a bar that posts supposedly blasphemous material on its walls, or on a restaurant that doesn't censor patrons' anti-Muslim statements when fellow patrons object to such statements.

Finally, the court goes on to say:

The Supreme Court has found that sufficiently severe or pervasive harassment on the basis of a prohibited category, including religion, race, or national origin, constitutes "employment discrimination" and is therefore actionable under federal law. Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65-67 (1986); Harris v. Forklift Sys., Inc., 510 U.S. 17, 21-22 (1993) ("[T]he very fact that the discriminatory conduct was so severe or pervasive that it created a work environment abusive to employees because of their race, gender, religion, or national origin offends [the] broad rule of workplace equality."). Accordingly, the First Amendment does not preclude Plaintiff's discrimination claims.

Well, such speech also constitutes "educational discrimination" and "public accommodation discrimination" (on the theory that tolerance of an offensive environment based on a criterion equals discrimination based on that criterion) when it happens at universities and at places of public accommodation. But that the speech violates a statutory rule is only the start of the inquiry — the question is whether the First Amendment trumps that statutory rule in some situations.

And the Court has never answered that question. Meritor and Harris didn't consider the First Amendment arguments; Meritor didn't involve speech, and though Harris did involve speech (speech that quite likely could be punished), no First Amendment arguments were raised at trial or before the court of appeals — the First Amendment was raised only in the Supreme Court brief, and therefore rightly ignored by the Court. "It is [the Supreme Court's] practice to decline to review those issues neither pressed nor passed upon below," and it's clearly settled that "cases cannot be read as foreclosing an argument that they never dealt with." As to R.A.V., see here for why it doesn't resolve the constitutionality of harassment law as applied to otherwise protected speech (i.e., speech that doesn't fit within exceptions such as fighting words or threats).

Related Posts (on one page):

  1. Dangerous First Amendment Analysis in Anti-Islam/Anti-Muslim/Anti-Arab Speech Case:
  2. Anti-Islam/Anti-Muslim/Anti-Arab Speech May Lead to Damages Liability:
Brian G (mail) (www):
Dope. He should have disparaged Christians and Jews. An oral Motion to Dismiss would have been granted at the Rule 16 scheduling conference.

You think this is bad, wait until President Obama nominates judges. After all, who do you think is financing his campaign?
2.13.2008 3:06pm
Ex-Fed (mail) (www):
Prof. Volokh:

With respect to the second section you quote --- citing Miritor, et al. -- is that just a conduct vs. speech argument? In other words, is the court saying that the First Amendment shouldn't apply because the speech should be classified as conduct (in this case, employment discrimination) rather than speech? That seems to be the exception that swallows the rule, in that I can reclassify nearly any speech as conduct with relatively little effort.
2.13.2008 3:08pm
CJColucci:
If I persistently importune the attractive black co-worker (same rank, no power differential) down the hall for dates, send her flowers, e-mail beefcake pictures of myself (from a while back, to be sure), and break into Cole Porter love songs whenever I see her, I can be told to cut it out and be fired if I don't. And she can sue our employer if it lets this continue after it's brought to the employer's attention. Why is it any different if I call her a nigger? Or send her KKK recruiting e-mails?
2.13.2008 3:35pm
ed (mail) (www):
Hmmmm.

1. If the court's decision is so wrong then why did the court come to this flawed conclusion?

2. What does this say about the quality of judges on the bench?
2.13.2008 3:36pm
Hans Bader (mail):
The court's bizarre belief that whatever a discrimination law prohibits must automatically be unprotected by the First Amendment is squarely contrary to the Supreme Court's decision in Boy Scouts v. Dale, 530 U.S. 640 (2000), which held that even though sexual-orientation discrimination in selection of scoutmasters was clearly forbidden by the New Jersey Law Against Discrimination, it was nevertheless protected by the First Amendment when it furthered the Boy Scouts' freedom of expressive association.

Its reasoning is also contrary to cases like Iota Xi Chapter of Sigma Chi Fraternity, 993 F.2d 386 (4th Cir. 1993) (university could not ban skit that it perceived as contributing to a "hostile and distracting learning environment" based on race and gender) and UWM Post v. Board of Regents, 774 F.Supp. 1163 (E.D. Wis. 1991) (First Amendment barred application of campus harassment rule to campus debate that created a "hostile environment").

Instead of mechanically declaring that the government can ban any speech it wants if such speech is "incidentally swept up" within a prohibition against discrimination, the court should have engaged in a strict scrutiny analysis and weighed the competing interests at stake.

As I explain in my comment to Professor Volokh's prior post on this topic, the City of New York could certainly fire this antiterrorism advisor for his remarks, but that does not mean that the courts can punish the city, or the advisor, for his speech, since the government's power as sovereign is more limited than its power as proprietor/employer. See Connick v. Myers (1983) (although public employer can broadly limit its employees' speech, their speech is protected against lawsuits, like defamation claims, to the same extent as a "man on the street").

Moreover, the claims against the advisor under Section 1981 and other statutes suffer from infirmities on purely statutory grounds, as I explain in my comments to Professor Volokh's prior post about this case.
2.13.2008 3:40pm
Arkady:
I'm curious, EV. In your previous post, you presented the following facts:



In addition to the emails, Tefft directly stated to Plaintiff's colleagues that they should not trust Plaintiff or any other Muslim in law enforcement because "Muslims have no place in law enforcement."


Granting the validity of your First Amendment objections, is there no cause of action here at all? Suppose Plantiff's colleagues refused to work with him anymore based on Tefft's statements, and he was let go because his superiors came to believe his presence was disruptive. I know this is a hypothetical, but what about it? Is there any remedy available to the man?
2.13.2008 3:45pm
Ping Pong (mail):

If I persistently importune the attractive black co-worker (same rank, no power differential) down the hall for dates, send her flowers, e-mail beefcake pictures of myself (from a while back, to be sure), and break into Cole Porter love songs whenever I see her, I can be told to cut it out and be fired if I don't. And she can sue our employer if it lets this continue after it's brought to the employer's attention. Why is it any different if I call her a nigger? Or send her KKK recruiting e-mails?


Because presumably, she's not a Muslim. Muslims must take every kick in the teeth with a smile. Anything else proves they're not fit to live in a modern democracy. Send the great hirsute hordes back to their desert sands!

/snark off.

Seriously, the behavior described above is sufficiently egregious that any reasonable person similarly targeted would feel subjected to a hostile work environment. Would it be ok for a Nazi to send out similar tirades at work?

What if the Nazi worked for an agency that had to deal regularly with the public? Or would the Nazi's First Amendment rights override everything else under EV's analysis?
2.13.2008 4:07pm
ellisz (mail):
Arkady, I would suppose that in your scenario the guy could sue the employer for employment disc. but that's distinct from suing someone based on what he said.

beyond that, sometimes you have conflicting values and one has to give way to the other. eg sometimes guilty people go free because the govt can't convince the jury of the guilt b/y a reas doubt. in the same way, if harassment law butts up against the first amendment, surely the first amendment wins.
2.13.2008 4:08pm
Houston Lawyer:
The first amendment was repealed with the hostile work environment exception. Who should be surprised that this exception swallowed the rule.
2.13.2008 4:09pm
Dan R (mail):
Prof. Volokh,

In Harris, the Supreme Court allowed restrictions on sexually harrassing speech. In your Cornell article on Harris, you say Harris is a special case because you think liability should be imposed

for speech that (1) the speaker knows is unwanted,[1] that (2) is said to a particular employee because of her race, sex, religion, or national origin, and (3) that creates (together with whatever other nonspeech conduct might be present) a hostile work environment.


I have two concerns with this approach. First, your justification for this "one-to-one speech" exception appears to be based solely on your impression of the value of the "one-to-one" mode of speech. Doesn't this put courts in the untenable position of judging the content-value of every possible different mode of speech? For instance, maybe telephone communications are less valuable than email communications - so under your approach email would be protected by the first amendment but not telephone calls? Cf. Gertz (holding that courts should not be in the business of determining first amendment value of speech content in individual cases). I do understand that the Court has already made a distinction like this (FEC v. Pacifica; Reno v ACLU) - but my point still stands: doesn't this beg courts to carve out hundreds of "mode of communication" distinctions?

Second, even assuming that courts should be in the business of assessing the value of modes of speech, why would one-to-one speech directly to a plaintiff be of less value than one-to-one speech about the plaintiff directed to a third party (e.g. the emails that are the subject of this post)?
2.13.2008 4:22pm
Barnes:
"Don't create a hostile work environment" is content-neutral. Employees can create a hostile work environment in many ways, including racial slurs (as in this case) or silent physical intimidation. The employee can argue that a speech-neutral regulation is being applied in a way that discriminates against his viewpoint, but that only buys him intermediate scrutiny. The bottom line is that this is about conduct and not speech.

Also note that the court's opinion in footnote three cites the same district court opinion that Professor Volokh cites as a "But see" in his UCLA article.
2.13.2008 5:27pm
Hans Bader (mail):
Barnes is mistaken. It's not content-neutral to say "don't create a hostile work environment," because that's keyed to listeners' reactions to speech, and "listeners' reaction to speech is not a content-neutral basis for regulation." Forsyth County v. Nationalist Movement, 505 U.S. 123, 134 (1992)

If the listener's doesn't perceive the work environment as hostile (based on his or her reaction), then there is no First Amendment violation. See Harris v. Forklift System, 510 U.S. 17 (1993) (so stating; must be subjectively and objective hostile).

Moreover, it's wrong to say that "this is about conduct and not speech."

The fact that unprotected conduct can be used to create a hostile work environment doesn't mean that speech can be banned as well when it has the same effect of creating a hostile environment, anymore than the fact that unprotected conduct can be banned as intentional infliction of emotional distress or tortious interference with contract means that speech that has the same effect can be banned. It typically cannot. See Hustler Magazine v. Falwell (1988) (tort of intentional infliction of emotional distress can't be applied to speech about public figures, even though such speech is only incidentally swept up within the tort's general prohibition against tortious conduct); NAACP v. Claiborne Hardware Co. (1982) (tort of interference with contract can't be applied to boycotting speech which harms businesses, even though unpolitical conduct which causes the same result can be punished by the courts through lawsuits based on the tort).
2.13.2008 5:37pm
Hans Bader (mail):
In my post above, I meant "Title VII" rather than "First Amendment" in my discussion of the Harris supreme court decision, where I should have written,

"If the listener doesn't perceive the work environment as hostile (based on his or her reaction), then there is no Title VII violation. See Harris v. Forklift System, 510 U.S. 17 (1993) (so stating; must be subjectively and objective hostile)"

when I wrote,

"If the listener's doesn't perceive the work environment as hostile (based on his or her reaction), then there is no First Amendment violation. See Harris v. Forklift System, 510 U.S. 17 (1993) (so stating; must be subjectively and objective hostile)."
2.13.2008 5:39pm
Elliot123 (mail):
Wouldn't it be easier to just dump all these laws and acknowledge that women, Blacks, Mulsims, Mexicans, and gays are just as psychologically and emotionally capable of dealing with offensive speech as are White and Asian men?
2.13.2008 5:52pm
David Schwartz (mail):
If I persistently importune the attractive black co-worker (same rank, no power differential) down the hall for dates, send her flowers, e-mail beefcake pictures of myself (from a while back, to be sure), and break into Cole Porter love songs whenever I see her, I can be told to cut it out and be fired if I don't. And she can sue our employer if it lets this continue after it's brought to the employer's attention. Why is it any different if I call her a nigger? Or send her KKK recruiting e-mails?


Who do you think you are disagreeing with and what does this have to do with harassment laws? Your hypothetical is about what an employer could do, not about what a law can require.
2.13.2008 5:55pm
Barnes:
Hans, your second sentence explicitly assumes that "don't create a hostile work environment" refers to speech and only speech. But everybody agrees (even Professor Volokh in his post) that sometimes people engage in behavior that is obviously not speech to create a hostile work environment. So the regulation is not keyed necessarily to speech.

And if that is true, then the speaker's complaint is that the regulation is unconstitutional as applied to him, in which case he gets intermediate scrutiny. And hostile workplace law serves a more important government interest than the laws in Hustler and Claiborne (see, for example, Claiborne at 912-13).
2.13.2008 6:06pm
oh come on:
Elliott123,

That sounds like an empirical claim that is completely made up. Do you have any citations to psychological or sociological studies? Because I think, you know, in practice, you are wrong.
2.13.2008 6:08pm
Harvey Mosley (mail):
Slightly off topic question:

Can a business owner post a sign that says something along the lines of "We gladly serve ___________" with the blank being a derogatory term referencing race, religion or gender? Would this be protected under the First Amendment or would it be illegal discrimination? If not protected, would it be customers or employees (or both) that had a cause of action (assuming I'm using that term correctly) against the owner?
2.13.2008 6:40pm
rightnumberone (mail):
First Amendment to the Constitution
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

Where does it say in there that the Congress can make SOME laws restricting speech? ANY laws? It's plain. No law. None. It just can't be any simpler than that.

Congress shall make no law abridging freedom of speech.

"Well, this isn't speech, it's action," you'll claim.

Bullshit.

It's those kinds of arguments that give up your ghosts. It's exactly those types of arguments that reveal your true intent. Do any of you even remember why you went to law school?

I'm not a lawyer, but it seems to me that when you lawyers and judges are finished whittling away the rest of our rights, then there'll be no other choice but to rise up and just smite you bastards. So don't be too surprised when people show up at your homes and your courthouses with pitchforks, torches and a length of rope.
2.13.2008 6:54pm
Waldensian (mail):

Where does it say in there that the Congress can make SOME laws restricting speech? ANY laws? It's plain. No law. None. It just can't be any simpler than that.

I'm going on the dangerous assumption that you're not a troll....

So somebody falsely shouts "fire" in a crowded theater, resulting in the gruesome trampling deaths of dozens of orphans watching the Orphan Annie Director's Cut, and you'd say that speech can't be criminalized?

Do any of you even remember why you went to law school?

Uh, because of the hot women there?

I'm not a lawyer, but it seems to me that when you lawyers and judges are finished whittling away the rest of our rights, then there'll be no other choice but to rise up and just smite you bastards. So don't be too surprised when people show up at your homes and your courthouses with pitchforks, torches and a length of rope.

The first four words of your absurd diatribe are probably unnecessary, if you think about it.

Meanwhile, if you come to smite me with your pitchfork, torches, and length of rope, you will have violated the first rule of gunfighting:

1. Bring a gun.
2.13.2008 7:34pm
Waldensian (mail):

Can a business owner post a sign that says something along the lines of "We gladly serve ___________" with the blank being a derogatory term referencing race, religion or gender? Would this be protected under the First Amendment or would it be illegal discrimination?

Interesting question! I'll take a stab: I think it's protected by the First Amendment. Would love to hear EV's thoughts.
2.13.2008 7:38pm
ReaderY:
If I am a fundamentalist Christian, and I find homosexuality highly offensive to my religion, can I sue for hostile environment discrimination if a colleague has openly pro-gay slogans/paraphenalia at his or her desk?

Under what circumstances can the law consider my feelings of discomfort at what someone else says to be "harassment"? Under what circumstances can the law impute an intent to cause harm from speech that another person disapproves of due to their religion, gender, etc.?
2.13.2008 8:07pm
Harvey Mosley (mail):

Meanwhile, if you come to smite me with your pitchfork, torches, and length of rope, you will have violated the first rule of gunfighting:

1. Bring a gun.

We have a winner!
2.13.2008 8:26pm
CJColucci:
Your hypothetical is about what an employer could do, not about what a law can require.

No, actually, it isn't. To quote myself: " And she can sue our employer if it lets this continue after it's brought to the employer's attention."

I hope this clears things up.
2.13.2008 9:09pm
rightnumberone (mail):
Can a business owner post a sign that says something along the lines of "We gladly serve ___________" with the blank being a derogatory term referencing race, religion or gender? Would this be protected under the First Amendment or would it be illegal discrimination?

Refusing to serve black people at a restaurant isn't speech moron.

Saying "I don't like black people" is speech. Saying "I think black people because they disporportionately people our jails and count among the majority of murderers in this country" is guaranteed to inflame passions and infuriate a certain segment of society. But it's my right to hold this obnoxious opionion if I want to.

Saying Islam is inherently a religion of violence and destruction is speech. Is it offensive. Perhaps. And I'm free to say it, at the barrel of a gun if you lawyers and judges force us to.

But, all of that is beyond the point. The point is that the Congress has passed a law restricting free speech is ANY WAY. And the Constitution says they can't do that - in no uncertain terms. So, I'm free to ignore that law.

Try to take away that right, and those who cherish it will prune you from the tree of freedom.
2.13.2008 9:13pm
frankcross (mail):
The language of the opinion is pretty awful, but I wonder about the facts.

What if a police officer was a Nazi who said that Jews were evil, with the usual litany of reasons, and said that Jews should not be allowed to work in the department. Now suppose there was only one Jew in the department, whose religion was known. I think under EV's test, he'd have a case.

But the amazing thing to me is that the speaker wasn't fired for making the statements.
2.13.2008 9:21pm
Waldensian (mail):

But, all of that is beyond the point. The point is that the Congress has passed a law restricting free speech is ANY WAY. And the Constitution says they can't do that - in no uncertain terms. So, I'm free to ignore that law.

So, I guess the guy who killed the orphans in the theater by falsely shouting "fire" is off the hook?
2.13.2008 11:28pm
Elliot123 (mail):
"That sounds like an empirical claim that is completely made up. Do you have any citations to psychological or sociological studies? Because I think, you know, in practice, you are wrong."

Wrong? You thing women, Blacks, Mulsims, Mexicans, and gays are not just as psychologically and emotionally capable of dealing with offensive speech as are White and Asian men? I suppose your attitude is why we have these laws.
2.13.2008 11:36pm
Grover Gardner (mail):
"Wouldn't it be easier to just dump all these laws and acknowledge that women, Blacks, Mulsims, Mexicans, and gays are just as psychologically and emotionally capable of dealing with offensive speech as are White and Asian men?"

You assume, incorrectly IMO, that it's simply a matter of a member of a minority group "dealing" with offensive speech or behavior. For most minorities, this is simply a part of their day. (Like the time my wife took our toddler to a play group and was encouraged to join the "other nannies" for coffee in the kitchen.) One problem is that it's easy to pick on minorities *because* they're minorities, and it's less likely that a member of the "majority" will stick up for them. Another problem is that members of a "majority" are more likely to be in positions of power, which makes fellow workers uncomfortable about confronting the discriminatory behavior. And minorities generally have less freedom of movement in the marketplace, and are therefore under greater duress to tolerate behavior that makes them uncomfortable.

But you are correct in one respect, I think: Members of a majority are less inclined to be bothered by harassment, precisely because they *know* are in the majority. That's a very powerful psychological advantage.

This is leaving aside the fact that anti-harassment laws cover *everyone*, and there have been cases of white workers seeking redress against minority bosses who harass or discriminate against them. Such workplace codes can be, and have been, applied the other way.
2.14.2008 12:35am
Grover Gardner (mail):
One point I didn't make clear is that it's one thing to "deal" with casual social slights, like the one my wife encountered. It's another to have to deal with systematic harassment or discrimination in the workplace. The interpersonal dynamics are more complex and not so easily shrugged off. Relationships and associations are not chosen but are imposed. The stakes (earning a living, providing for one's family, advancing one's career) are much higher. Added together, these factors make incidents of harassment more stressful and difficult to confront than they might otherwise be.
2.14.2008 1:51am
neurodoc:
Doe v .... Why is this P allowed to proceed under a pseudonym, especially since the Ds must know his identity? There is good reason to keep his identity a secret from the public?

Dan R wondered about content-value and different modes of speech if EV's one-to-one exception is to be adopted. Does it become other than a one-to-one communication as soon as the speaker includes two or more people in his/her broadcast message? Send an objectionable email to a targeted individual and find yourself the D in a lawsuit, but direct your email to at least two people or add others as cc's (or bcc's?) and you have immunized yourself against a lawsuit?

Isn't the employer's position considerably weaker than if a different mode of communication had been employed? Would this P's case be as strong if he/she had just heard their co-worker publically venting himself in the lunchroom or elsewhere rather than using an employer-provided computer and email system to broadcast his views widely in the workplace?

It's tempting to argue on behalf of the Ds that Tefft's job was not in the homicide division, but rather in anti-terrorism, so that what he had to say was arguably job-related rather than gratuitous expressions of bigotry. I don't think that would greatly impress any trier of law and/or fact, though.
2.14.2008 4:13am
Richard Aubrey (mail):
Elliott
You saw the thread on sensitivity and punishment.
You're on the right track here. We are crudely quantifying upsetness based on group identity.

I don't buy it. At one point, I might have been brought down by what what feminists say about men. Now, I either don't care or think it funny. The power relationship hasn't changed save that, not being bothered, I can no longer be bothered.

As my sainted mother used to say, "Consider the source, dear."

My wife and I were out late in a store last night. The store was not busy. We passed the same black woman twice, each of us saying "hi", courteously, and "excuse me". We went to another store, did not find what we wanted, and returned to the first. As we parked, the woman was just loading her car.
We were walking AWAY--not encountering--when she called after us, "Didn't I see you guys here already?" in a cheerful voice.
We responded, "Yeah, we can't make up our mind."
IMO, had she not been confident in getting a courteous, which is to say, cheerful, non-racist, response, she'd have said nothing. Why invite an insult?
So, I'll take her judgment as to the rampant racism in our area. Not much.
2.14.2008 11:49am
Mike Gallo (mail):
Is my speech against Islam (which I view as vile) at work with other like-minded individuals protected if many of my superiors are Muslims? I am not in the position of power, nor am I in the majority in so far as viewpoint is concerned. While I live in an employment-at-will state, and know I may be fired for such conduct, can the government make my actions criminal?

I've got a bit more patience and empathy for an ethnic group who has been born with their identity than a Muslim who has chosen theirs, of course, but I think speech is pretty much protected accross the board so long as it is not incitement to preemptive violence.
2.14.2008 12:23pm
CJColucci:
I've got a bit more patience and empathy for an ethnic group who has been born with their identity than a Muslim who has chosen theirs

It probably hasn't escaped your attention that the ethnic identity into which you were born and the religion you have "chosen" have a remarkable tendency to correlate. How many of us actually choose our religion? Aren't most of us born into it, and don't must of us stay in the religion into which we were born?
2.14.2008 12:40pm
Harvey Mosley (mail):
rightnumberone


Refusing to serve black people at a restaurant isn't speech moron.


I said nothing about refusing to serve black people. I said nothing about refusing to serve anyone.


I find it truly impressive that you can write this:


"I think black people because they disporportionately people our jails and count among the majority of murderers in this country"


and call me a moron.
2.14.2008 1:31pm
Dan R:
Elliot123 asks:

"Wouldn't it be easier to just dump all these laws and acknowledge that women, Blacks, Mulsims [sic], Mexicans, and gays are just as psychologically and emotionally capable of dealing with offensive speech as are White and Asian men?"

Elliot, you misunderstand Title VII. Title VII protects "White and Asian men" just as it does "women, Blacks, Mulsims [sic], Mexicans, and gays." A white male subjected to severe and pervasive harassment based on his race and gender could sue. I expect that white males have sued for hostile work environment discrimination under Title VII. The law is not intended to provide special protections for particular classes of people, but to ensure that people are not driven away from job opportunities on the basis of race or gender.
2.14.2008 2:00pm
The Unbeliever (mail):
rightnumberone, you dramatically misread the question. At the risk of being further misunderstood, let's fill in the blank with a specific slur to make it more concrete:

"Can a business owner post a sign that says something along the lines of "We gladly serve ragheads"... Would this be protected under the First Amendment or would it be illegal discrimination?"


And to tie it back in to the original topic: if the owner of a restaraunt who posted this sign primarily employs Arabs, would it be creating a hostile work environment? Would it be actionable?

I'm genuinely interested in the answer here, and I hope EV notices the late comment and weighs in.
2.14.2008 2:46pm
JosephSlater (mail):
Unbeliever:

I agree it's an interesting question that wasn't addressed properly above. I teach Employment Discrimination, and I sometimes offer the hypo, "Suppose the employer says something like, "Because and only because the law requires us to do so, we will hire [x group, e.g., blacks, Jews, or women]."

The idea, of course, with they hypo is to separate the "racist thought" from the "racist act." Of course, the common-sense reaction of most students is to doubt that an employer that would say that would really act in fair way toward that group. On the other hand, there are a number of Title VII cases that hold that simply proving that a supervisor was in fact (say) a racist is not enough to prove employment discrimination.
2.14.2008 3:14pm
Dan R:
JosephSlater,

In Schwapp v. Avon, 118 F.3d 106 (2d Cir. 1997), the court holds a race-based hostile environment action cannot be maintained on a few isolated comments, but instead must show a "steady barrage of opprobrious racial comments." If that is the test, then I would think that a single sign in the window would not be enough to state a hostile environment claim.
2.14.2008 3:51pm
Elliot123 (mail):
"One problem is that it's easy to pick on minorities *because* they're minorities, and it's less likely that a member of the "majority" will stick up for them. Another problem is that members of a "majority" are more likely to be in positions of power, which makes fellow workers uncomfortable about confronting the discriminatory behavior."

Maybe it's time for the minorities to learn to stand on their own two feet without waiting for someone in the majority to stick up for them. Asians seem to have figured it out pretty well; just kick ass in school and compete. They do it without anyone in the majority holdng their hand.
2.14.2008 3:54pm
Elliot123 (mail):
Dan,

I realize the laws cover everyone. However, I note the arguments that lead to these laws focused on the problems of women, blacks, Mexicans, and gays. (Muslims came later.)And I observe their application is usually in favor of those groups. Asians seemed to have figured out how to prosper on their own. And the Mexicans are flirting with losing favored status as they bust their butts in the workforce and start climbing up the ladder.

I suggest teaching people they are too deficient to take care of themselves is the greatest of all insults.
2.14.2008 4:10pm
JosephSlater (mail):
Dan R.:

I agree such a sign would not constitute a hostile work environment. In fact, I think at least some folks on these threads on this blog underestimate the number and severity of comments and acts that most courts require to find a hostile work environment.

My hypo, though, went to something different than hostile environment. The closer question is whether a sign saying (something like) "we'll hire Jews but only because the law forces us to" would be actionable as discrimination against Jews in hiring. The argument that it isn't would be that the employer is actually saying it will hire Jews. The argument that it could be discrimination in hiring is that the such a statement would likely discourage Jewish applicants.

I thought that was getting at what Unbeliever was asking -- the "bad thought" vs. "bad act" distinction (although I could be wrong about that). In any event, I should have been more clear that it wasn't a hostile work environment hypo.
2.14.2008 4:26pm
David Schwartz (mail):
CJColucci:
Then it is no different. If you don't like other people's speech, your recourse is not to the law.
2.14.2008 6:57pm
Grover Gardner (mail):
"Maybe it's time for the minorities to learn to stand on their own two feet without waiting for someone in the majority to stick up for them."

Like the members of Trinity Church in Chicago, for instance?

"Asians seem to have figured it out pretty well; just kick ass in school and compete. They do it without anyone in the majority holdng their hand."

Ah, those plucky Asians! "Two Wongs Can Make It White!"

Stereotypes aside, your point is really moot since it's already been explained to you that anti-harassment and and anti-discrimination laws don't apply solely to minorities.
2.14.2008 11:08pm
Grover Gardner (mail):
"And I observe their application is usually in favor of those groups."

Yes!! That's CORRECT, Elliot. A big gold star for you. It's because these people are MINORITIES. That places them at a DISADVANTAGE when dealing with the MAJORITY.

Now, we can pursue different courses of action.

1) Tell those stupid, whiny minorities to GET OVER IT! DEAL! So what if you're denied a promotion, or sent threatening emails, or get a pat on the bottom--or one of your co-workers says, "Hey, I hear all you Asians kick ass in school!"? DEAL!

2) Make it clear, in no uncertain terms, that it's UNACCEPTABLE to pay someone less or make fun of them at work or pat them on the bottom or make their jobs more difficult or deny them promotions or make jokes about stereotypes JUST BECAUSE they're women, or black, or white, or go to church, or whatever. Then offer them some means of redress when management DOESN'T GET IT.
2.14.2008 11:27pm
Grover Gardner (mail):
And Elliot--lots of WOMEN and BLACKS and HISPANICS and MUSLIMS kick ass in school, and compete, and DEAL. That doesn't stop jerks from making their lives more difficult.
2.14.2008 11:30pm
Elliot123 (mail):
<i>"Like the members of Trinity Church in Chicago, for instance?"</i>

Yes.

<i>"Ah, those plucky Asians! "Two Wongs Can Make It White!"</i>

Exactly the kind of comment Asians can easily deal with on their own.

<i>"Stereotypes aside, your point is really moot since it's already been explained to you that anti-harassment and and anti-discrimination laws don't apply solely to minorities."</i>

Dan Did point that out, and I agree with him. I added that the laws were enacted at the behest and for the benefit of blacks, women, Mexicans, and gays. I also observe they are most often invoked for their benefit. However, my point is that it's time to scrap laws that presume blacks, women, Mexicans, and gays are less pshchologically and emotionally capable of dealing with insults than are white and Asian men.
2.15.2008 3:54pm
Elliot123 (mail):
"Yes!! That's CORRECT, Elliot. A big gold star for you. It's because these people are MINORITIES. That places them at a DISADVANTAGE when dealing with the MAJORITY."

Minority status has nothing to do with it. East Asians, Jews, and Indians demonstrate that. There is no basis to say anyone is at a disadvantage because of their color. I suggest the groups that teach their people that will fail, while those who reject that ide will succeed.

"Tell those stupid, whiny minorities to GET OVER IT! DEAL! So what if you're denied a promotion, or sent threatening emails, or get a pat on the bottom--or one of your co-workers says, "Hey, I hear all you Asians kick ass in school!"? DEAL!

I don't consider minoritoes stupid. That's the trouble we have with laws like this. They foster the notion that minorities are defective, and can't compete. All Asians don't kick ass in school, but they do best every other group. And they are a minority.

"Make it clear, in no uncertain terms, that it's UNACCEPTABLE to pay someone less or make fun of them at work or pat them on the bottom or make their jobs more difficult or deny them promotions or make jokes about stereotypes JUST BECAUSE they're women, or black, or white, or go to church, or whatever. Then offer them some means of redress when management DOESN'T GET IT."

Make that clear to them, and tell them they can't stand on their own two feet and take care of themselves, and you get much of the failure we see today. Take the opposite approach, and really kick ass in school, and success quickly follows. Remember, redress is getting someone else to take care of you. People who stand on their own two feet don't need redress.
2.15.2008 4:06pm
Elliot123 (mail):
"And Elliot—lots of WOMEN and BLACKS and HISPANICS and MUSLIMS kick ass in school, and compete, and DEAL. That doesn't stop jerks from making their lives more difficult."

Good for them. Some people face difficulty and overcome it regardless of the nonsense they are fed about being deficient because of their color, race, or gender. Watch out for the Mexicans. A guy who makes his way from the Mexican interior to Omaha and works 80 hours a week on a roofing crew is surely an example.
2.15.2008 4:11pm
Grover Gardner (mail):
"However, my point is that it's time to scrap laws that presume blacks, women, Mexicans, and gays are less pshchologically and emotionally capable of dealing with insults than are white and Asian men."

Show me such a law.
2.16.2008 12:18am
Grover Gardner (mail):
"Make that clear to them, and tell them they can't stand on their own two feet and take care of themselves, and you get much of the failure we see today."

What "failure" are you talking about, exactly? I'm having trouble understanding how you equate not wanting to endure a significant level of harassment on the job with "failure."
2.16.2008 1:32am
Grover Gardner (mail):
"A guy who makes his way from the Mexican interior to Omaha and works 80 hours a week on a roofing crew is surely an example."

An example of what? What does this have to do with harassment in the workplace?
2.16.2008 1:34am
Grover Gardner (mail):
"Remember, redress is getting someone else to take care of you."

Really?? How so?
2.16.2008 1:57am
Elliot123 (mail):
"Show me such a law."

See the initial post of this thread.

"What "failure" are you talking about, exactly? I'm having trouble understanding how you equate not wanting to endure a significant level of harassment on the job with "failure."

These are the people who heve never learned to stand on their own two feet and compete. They have been told over and over again they are deficient and weak because of their color, race, or gender. Society has lower standards for them, they accept lower standards for themselves, and some even try to push lower standards on others. Hence, they never learn to compete because they have never been allowed to compete. This social attitude is reflected in the application of various laws which presume some groups are psychologically and emotionally weaker than others. That is the supreme insult.

"An example of what? What does this have to do with harassment in the workplace?"

The Mexican roofer is an example of a guy who is not afraid of competition and is determined to stand on his own two feet and make it in the world. He isn't concerned with harassment; he's strong enough that he can take whatever he encounters. He's the opposite of the guy in the original post claiming harassment. He's not looking for anyone in the majority to "stick up" for him. He does it himself. And he's even a minority.
2.16.2008 2:16am
Elliot123 (mail):
"Really?? How so?"

By getting money from someone else based on being offended rather than making money yourself.
2.16.2008 2:18am
Grover Gardner (mail):
"See the initial post of this thread."

All I see is reference to a law that prohibits harassing people at work based on their race, religion, national origin. How does this "teach" minorities that they're deficient? On the contrary, it would seem to say that you have rights and value as a human being, and are worthy of being treated with dignity and respect, *even though* you may be a member of a minority.

"By getting money from someone else based on being offended rather than making money yourself."

If my neighbor poisons my dog and I seek redress through the courts rather than strangling him with my bare hands, I would appear to be a money-grubbing failure in your eyes.

"By getting money from someone else based on being offended rather than making money yourself."

Apparently, you don't feel that the plaintiff in this case had a right to feel offended by the behavior of the hired consultant. Am I wrong?
2.16.2008 2:59am
Grover Gardner (mail):
"The Mexican roofer is an example of a guy who is not afraid of competition and is determined to stand on his own two feet and make it in the world."

Being told you *can't* compete or shouldn't even have a job because you're Mexican strikes me as a greater hindrance to "standing on your own feet" than being allowed to sue an employer who tells you so to your face.
2.16.2008 3:04am
Grover Gardner (mail):
"By getting money from someone else based on being offended rather than making money yourself."

And again, Elliot, how do we know they plaintiff is solely in it for the money, as opposed to suing the guy to make a point?
2.16.2008 3:29am
Grover Gardner (mail):
You paint an interesting picture of the "ideal" minority here, Elliot: Cheerful, plucky, happy to work 80 hours a week nailing shingles when the rest of us slug along in offices, lazy and overpaid; kicking ass in school to prove that he's "good enough" and deserving of the respect that others receive by virtue of just being average; immune to harassment and insults because that's to be expected, while complaining only shows he's weak and greedy and can't stand on his own two feet. Well, no one could accuse you of "lowered expectations." In fact, that fellow's got a lot to live up to!
2.16.2008 3:59am
Elliot123 (mail):
"All I see is reference to a law that prohibits harassing people at work based on their race, religion, national origin. How does this "teach" minorities that they're deficient?"

You asked for a law. I gave it. The law is part of a general social attitude that considers some races and groups to be less capable of taking care of themselves than others. Many things are expressions of that attitude, and this law is one.

"If my neighbor poisons my dog and I seek redress through the courts rather than strangling him with my bare hands, I would appear to be a money-grubbing failure in your eyes."

I don't know. How much are you asking for?

"Apparently, you don't feel that the plaintiff in this case had a right to feel offended by the behavior of the hired consultant. Am I wrong?"

Of course he has a right to feel offended.
2.16.2008 1:28pm
Elliot123 (mail):
"Being told you *can't* compete or shouldn't even have a job because you're Mexican strikes me as a greater hindrance to "standing on your own feet" than being allowed to sue an employer who tells you so to your face."

Exactly. He doesn't care what people say. He doesn't waste his time being offended. He takes care of himself without asking anyone else to "stick up" for him.

"And again, Elliot, how do we know they plaintiff is solely in it for the money, as opposed to suing the guy to make a point?"

The easiest way is to look at the proposed damages. If he wants to make a point, he coud have simply used the email to present a counter argument.

"You paint an interesting picture of the "ideal" minority here, Elliot: Cheerful, plucky, happy to work 80 hours a week nailing shingles when the rest of us slug along in offices, lazy and overpaid; kicking ass in school to prove that he's "good enough" and deserving of the respect that others receive by virtue of just being average; immune to harassment and insults because that's to be expected, while complaining only shows he's weak and greedy and can't stand on his own two feet. Well, no one could accuse you of "lowered expectations." In fact, that fellow's got a lot to live up to!"

That's your description, not mine. I see no reason why anyone should care about minority status, let alone propose an ideal minority. Why bother?
2.16.2008 1:41pm
Mike Gallo (mail):

I've got a bit more patience and empathy for an ethnic group who has been born with their identity than a Muslim who has chosen theirs

It probably hasn't escaped your attention that the ethnic identity into which you were born and the religion you have "chosen" have a remarkable tendency to correlate. How many of us actually choose our religion? Aren't most of us born into it, and don't must of us stay in the religion into which we were born?


CJColucci-
I'm an American, who was baptized Roman Catholic, but here in America we get to make our own choices. I can convert to Shinto tomorrow if I want to, and the fact that I've got copies of pretty much every religious text of every major world religion means the decision I make will be an informed one. You're making the "Allegory of the Cave" argument; that if all you know is shadows, you cannot comprehend anything else, for that is your reality. I think Plato was full of #$%&, and that anyone who makes an uniformed decision (which, of course, applies to members of many religions, as you stipulate) based on what they've been told or shown without critical analysis is being negligent.

Anyone that buys into Islamic angst and hatred has made their choice, regardless of where, or into which religion, they were born.

Anyways, my question still stands: If I am a minority and Muslims are a majority in my workplace, can they still use their minority status nationwide to broker criminal punishment of subordinates who speak out against their beliefs with other workplace minorites?
2.16.2008 2:03pm
Grover Gardner (mail):
"If I am a minority and Muslims are a majority in my workplace, can they still use their minority status nationwide to broker criminal punishment of subordinates who speak out against their beliefs with other workplace minorites?"

What difference does their minority status make? The fact that you think their beliefs are vile is your problem, not theirs.
2.16.2008 10:42pm
Grover Gardner (mail):
"Exactly. He doesn't care what people say. He doesn't waste his time being offended. He takes care of himself without asking anyone else to 'stick up' for him."

What difference does it make how well he can take care of himself if no one will hire him because he's Mexican?

"If he wants to make a point, he coud have simply used the email to present a counter argument."

He did. He complained to his supervisors, and they didn't do anything about it. After having his numerous complaints ignored, and facing a snowballing situation in which the unchecked harassment increased and spread, he sought relief in the courts. Seeking monetary damages is hardly an unreasonable or unusual way to punish people who ignore the law.

But at any rate, what sort of monetary redress is he asking for? The article doesn't say.

"I see no reason why anyone should care about minority status, let alone propose an ideal minority."

You're the one who brought it up.
2.16.2008 11:04pm
Grover Gardner (mail):
"How much are you asking for?"

Who said I was asking for money?
2.17.2008 12:01am
Elliot123 (mail):
"What difference does it make how well he can take care of himself if no one will hire him because he's Mexican?"

Remember, the case we are talking about here is the Mexican roofer working 80 hours per week. Do you think the Mexicans coming here are sitting around unemployed? Is that why they spend all that effort to come from the Mexican interior to Omaha? If so, I'd think the word would get back to Mexico that there is no work for them in the US. I have no reason to think they are stupid.

"He did. He complained to his supervisors, and they didn't do anything about it. After having his numerous complaints ignored, and facing a snowballing situation in which the unchecked harassment increased and spread, he sought relief in the courts. Seeking monetary damages is hardly an unreasonable or unusual way to punish people who ignore the law."

Correct. Instead of standing up on his own two feet and responding to the emails with other emails laying out an opposing position, he complained that he was offended. This is what we get when we teach people they are inferior and need someone else to "stick up" for them. Weakness. And I would agree that weakness is not at all unusual.

"You're the one who brought it up."

I brought up the idea that we should scrap laws and attitudes that presume blacks, women, Mexicans, and gays are psychologically and emotionally inferior to white and Asian men.

You responded: "Yes!! That's CORRECT, Elliot. A big gold star for you. It's because these people are MINORITIES. That places them at a DISADVANTAGE when dealing with the MAJORITY."

To counter your assertion about disadvantaged minorities, I provided examples of minority groups that do very well. The intent was to demonstrate that members of minority groups routinely do very well, so we can't simply use minority status as a critical factor in success. I suspect someone cares about what you call the "ideal minority," but I don't know who.

"Who said I was asking for money?"

My error. Since the remedy in harassments suits is often money, I assumed you were filing a civil suit against your neighbor for poisoning your dog. However, if you are filing criminal charges, I would have no basis for presuming you were looking for money.

"What difference does their minority status make?"

Well said.
2.17.2008 12:36am
Grover Gardner (mail):
"Remember, the case we are talking about here is the Mexican roofer working 80 hours per week. Do you think the Mexicans coming here are sitting around unemployed?"

That's not the point, Elliot. The point is that *if* he is prevented from working solely because he is Mexican, he has recourse to the law.

What you want us to believe is that, because a Mexican guy can work eighty hours a week, or an Asian woman does better in school, they are somehow less sensitive to racial slights, thereby proving that anti-harassment/anti-discrimination codes are useless or even harmful to minorities. But there's no logic to that whatsoever.

"I brought up the idea that we should scrap laws and attitudes that presume blacks, women, Mexicans, and gays are psychologically and emotionally inferior to white and Asian men."

...which they in no way do.

"You responded..."

Oh no, just a minute, Elliot. You're skipping a few things. You said,

"And I observe their application is usually in favor of those groups."

To which I responded, OF COURSE they are usually applied in favor of these groups, because they're the ones who are most often targeted for harassment.

"To counter your assertion about disadvantaged minorities..."

Ah, ah, ah. I did not say "disadvantaged minorities." I said minorities are at a disadvantage compared to the majority. Which is a perfectly reasonable thing to assert. It's simply a matter of group dynamics.

"...I provided examples of minority groups that do very well."

Which doesn't mean they aren't overcoming a disadvantage.

"The intent was to demonstrate that members of minority groups routinely do very well, so we can't simply use minority status as a critical factor in success."

Which is not the point of anti-harassment laws. The fact that they are most often applied to minorities, as you stated, has nothing to do with the attitudes of minorities and everything to do with the attitudes of ignorant people who think it's okay to belittle or patronize or discriminate against people to whom they feel superior, or by whom they feel threatened.

You asserted that success for minorities basically boils down how well they bear up under harassment. To which I responded that this is a ridiculous standard, since no one should be expected to put up with repeated harassment on the job. But to avoid seeming slothful and greedy failures in your eyes, they must be immune to gratuitous insults, work twice as hard as anyone else and surpass their peers academically--which of course is the age-old Catch-22 for minorities, and has nothing to do with anti-harassment laws.

"My error."

Indeed. Seeking redress does indicate greed or sloth or dependence on others for help. It means just what it means: to seek a remedy for a wrong. But you asserted that any minority seeking redress is refusing to stand up for himself.
2.17.2008 5:02am
Grover Gardner (mail):
"Seeking redress does NOT mean..."
2.17.2008 5:05am
Grover Gardner (mail):
"Of course he has a right to feel offended."

But he doesn't have the right to *declare* that he's offended, or the right to seek damages when his supervisors ignore his plight?
2.17.2008 5:25am
Grover Gardner (mail):
Bruce Tefft tells a sympathetic interviewer:

"Although he requested to be placed on my list, and never asked to be removed, the Muslim officer, whose career was not advancing, decided that my emails (and comments) had created a hostile work environment where he could not be promoted and suffered emotional stress, so he brought a suit against the NY Police Department and myself last December to get my anti-Muslim terror work stopped."

See how that works, Elliot? He "never asked to be removed," his "career was not advancing," and his motive is to "get my anti-Muslim terror work stopped." Clearly the guy is a whiner, a loser, and perhaps even sympathetic to Muslim terrorists! Of course he had to put up with crap that no self-respecting person would put up with at work ("All Arabs are animals"), but because he didn't just shrug it off, like the hard-working Mexican laborer or the bright Asian student, he's a "bad" minority--and worse, those anti-harassment laws brainwashed him into thinking he's inferior!

Maybe you can explain the logic in all that, because I don't see it.
2.17.2008 5:45am
Elliot123 (mail):
"What you want us to believe is that, because a Mexican guy can work eighty hours a week, or an Asian woman does better in school, they are somehow less sensitive to racial slights, thereby proving that anti-harassment/anti-discrimination codes are useless or even harmful to minorities. But there's no logic to that whatsoever."

I have no idea how sensitive anyone is; that's purely subjective, and I don't even know how to measure it. Do you? Nor do I know what sensitivity to slights has to do with mastering calculus. I agree that makes no sense. I can say some people choose to stand on their own two feet and compete, while others choose to pretend they are inferior because they are black, women, Mexican, or gay, and the look for someone else to "stick up" for them.

Regarding the "you said, I said..." I don't care about monoities, don't have an ideal for minorities, and don't think minority status has anything to do with success. So, I will leave the notion of the "ideal minority" for you and other intereested people.

"Ah, ah, ah. I did not say "disadvantaged minorities."

OK. if you see a difference beteen "disadvantaged minorities" and "minorities are at a disadvantage compared to the majority," that's fine. I'm not skilled at the nuances of the victimology.

"The fact that they are most often applied to minorities, as you stated, has nothing to do with the attitudes of minorities and everything to do with the attitudes of ignorant people who think it's okay to belittle or patronize or discriminate against people to whom they feel superior, or by whom they feel threatened."

Glad we agree on the usual application of these laws. The weak run for the victim laws, excuses, and look for someone else to "stick up" for them. The strong stand up for themselves and succeed regardless of what they encounter. It's a self-selection system.

"You asserted that success for minorities basically boils down how well they bear up under harassment."

Absolutely not. Sorry you got that idea. It depends on their outlook on life and how hard they work.

"But you asserted that any minority seeking redress is refusing to stand up for himself."

I was speaking of civil cases where someone is seeking someone else's money because they were offended. That's a weak person who has won't stand up on his two feet and compete. Meanwhile, the competitors are leaving him in the dust.

"But he doesn't have the right to *declare* that he's offended, or the right to seek damages when his supervisors ignore his plight?"

Of course he has the right to declare whatever he wants, and to pursue any recourse under law. He has a right to choose a life of beig offended, avoiding competition, and looking for someone else to "stick up" for him.

I don't understand your last post. Can you clarify?
2.17.2008 1:07pm
Grover Gardner (mail):
"I'm not skilled at the nuances of the victimology."

That's because I wasn't speaking of "victimology."

There's a difference between

1) acknowledging that minority status, broadly speaking, confers certain disadvantages in group situations and

2) making excuses for it, applying labels because of it, or assuming that all minorities (speaking more specifically, as in Asians or Mexicans or gays) are "disadvantaged." Attitudes about various specific minority groups vary.

"It depends on their outlook on life and how hard they work."

As long as they work harder than everyone else.

"I was speaking of civil cases where someone is seeking someone else's money because they were offended. That's a weak person who has won't stand up on his two feet and compete."

Nonsense. People sue other people for damages all the time because it's the only civilized way to hit them where it hurts the most. In some cases, it's the only meaningful way to punish an institution. And sometimes there are genuine monetary losses involved that should be compensated for.

"Meanwhile, the competitors are leaving him in the dust."

There's no proof of that, and it has nothing to do for seeking redress against illegal discrimination or harassment.

"He has a right to choose a life of beig offended, avoiding competition, and looking for someone else to 'stick up' for him."

Again, nothing to back that up.

"I don't understand your last post. Can you clarify?"

Hard to clarify the illogical, but I'll give it a shot: It's called blaming the victim.
2.17.2008 1:50pm
Elliot123 (mail):
Well, I have nothing more to contribute, and see I am repeating myself. So, I will disengage, and look forward to our next encounter. Thanks for an interesting dialog.
2.17.2008 2:01pm
Hans Bader (mail):
Grover Gardner's comment above suggests that, above and beyond any possible First Amendment defense, the individual defendant may have a statutory defense: that the comments were objectively welcomed by the plaintiff given his conduct.

Grover writes that defendant Tefft recounts that,

"Although he [plaintiff] requested to be placed on my list, and never asked to be removed, the Muslim officer, whose career was not advancing, decided that my emails (and comments) had created a hostile work environment."

If the plaintiff did so, then perhaps he objectively welcomed the alleged statements, even if he subjectively found them offensive. Cf. Scusa v. Nestle U.S.A. (8th Cir. 1998) (woman objectively welcomed vulgar remarks by making similar remarks of her own to the very people she accused of sexual harassment for making such remarks).

I know that some contrary court rulings treat anything that subjectively offends a complainant as "unwelcome," regardless of the plaintiff's objective conduct..

That, however, is quite irrational, since that makes the "unwelcomeness" element of a hostile work-environment claim simply duplicate its "subjectively offensive" element, violating the longstanding rule (reflected in New York tort law) that elements of a tort should not duplicate or subsume one another, but should be given independent force and effect.

It also destroys a traditional function of the unwelcomeness requirement: that defendants have some possible notice that their behavior may give rise to a harassment claim against them.
2.17.2008 3:22pm