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Playing Radio Show That Discussed Sex = Possible Massive Legal Liability?

Reeves v. C.H. Robinson Worldwide, Inc, decided Monday by the Eleventh Circuit, is the latest case illustrating how hostile environment harassment law may suppress constitutionally protected speech. The Eleventh Circuit held that Ingrid Reeves could proceed to trial with her hostile environment harassment claim -- which is to say, that if the jury agrees with her on the facts, it's entitled to award potentially hundreds of thousands of dollars in damages -- even though the case didn't involve any sexual extortion, any offensive touching, any sexual propositions, or even any insults targeted to her personally.

Rather, her complaints, as described by the Eleventh Circuit were chiefly related to "sexually crude language that offended her." A fairly small part of the incidents involved sex-based insults ("bitch," "whore," and once "cunt") used to refer to women customers and another employee behind their backs. There was also casual use of the word "dick," and some sexually themed jokes (and one song) with pretty vulgar language, overheard discussions about pornography, masturbation, and sex; one incident in which Reeves saw pornography on a coworker's computer; and the following:

Reeves was also offended by a radio program that was played every morning on the stereo in the office [a morning program on Birmingham's 107.7 FM during 2002-03, according to one brief -EV]. Discussions of the following material on the show offended her: (1) breast size of female celebrities and Playboy Playmates; (2) sexual arousal and women's nipples as indications thereof; (3) masturbation, both in general and with animals; (4) erotic dreams; (5) ejaculation; and (6) female pornography. Advertisements for or including the following material that were aired during the program also offended her: (1) sexual favors; (2) a bikini contest that instructed women to wear their most perverse bikinis; (3) a statement that a woman was found in bed with three elves and a candy cane; and (4) a drug called Proton that promised to increase sexual performance, please a partner, and make the user a "sexual tyrannosaurus rex." When Reeves complained about the radio programming, she was often told that she could play her own music or change the station. She testified, however, that if she did so the other employees would soon change the radio back to the offensive program.

The Eleventh Circuit expressly rejected the argument that, to constitute discriminatory harassment "based on" sex, speech had to actually specifically target the plaintiff as a woman (or, in other contexts, as a black, Catholic, or whatever else). There's a good deal of circuit precedent for this rejection -- but the consequence is that any speech, including radio programs, overheard conversations, and the like, that is "particularly offensive" to people because of their sex, race, religion, and so on is punishable. The sexually themed material, the court concluded, "was discussed in a manner that was ... more degrading to women than men," which I take it reflects the view in plaintiff's brief that "In these discussions, women were objectified and demeaned." And because it implicitly expressed such degrading views, it could be punishable as harassing based on sex.

As a matter of good manners, and sound business management, I gladly condemn people who expose unwilling colleagues to such speech. The employer -- a private entity that's not bound by the First Amendment -- was free to restrict the speech, just as private Internet service providers, schools, churches, malls, and householders are generally free to restrict speech on their private property (setting aside a few contrary state laws that are not relevant here).

But here the government is saying that this speech is legally actionable, because it supposedly reflects a "degrading" perspective on women. The speech does not fit within any First Amendment exception -- there is no such exception for vulgarity, including relatively nonpolitical vulgarity (understandable, given the impossibility of defining the boundaries of such an exception). The government ought not be able to limit it, including through threat of massive civil penalties, whether the penalties are imposed on the speaker or on property owners that tolerate the speech. Yet this is exactly what happens here.

What's more, the logic of the case (which expressly draws on racial harassment caselaw and not just sexual harassment caselaw) extends far beyond talk of sex. The reasoning would apply even more forcefully to sexist political statements, sexist criticisms of politicians, racist political statements, racist criticisms of politicians, radio shows that condemn Islam and Muslims, radio shows that condemn atheism, and the like. And harassment law has indeed been used in the past to impose liability based on such political, religious, and social commentary, see here and, most recently, here (anti-Islam, anti-Muslim, and on occasion anti-Arab political statements).

On top of that, while harassment claims are generally not easy for plaintiffs to win, they have a perfectly predictable deterrent effect on employers, who don't want to risk losing them (or even litigating them). If you're an employer, you hear about this case, and then someone complains about allegedly sexually themed, religiously offensive, sexist, or racist radio programs being played, or overheard lunchtime conversations, what would you do?

I'm pretty sure that if you're rationally worried about litigation, you'd order that the radio playing and the conversations stop, for fear of government-imposed liability, and not just out of good manners or a desire to promote morale. I generally don't fault employers for reacting this way. But I do fault the legal system for imposing this sort of content-based, viewpoint-based deterrent to speech.

Of course, many people are understandably upset about having to work around this sort of vulgarity, or for that matter around political speech that they find offensive based on religion, race, sex, and the like. But, as I've argued at length, preventing such offense -- whether in private workplaces, private educational institutions, privately owned places of public accommodation, or private housing complexes -- by punishing or imposing liability for speech (outside the narrow existing First Amendment exceptions) is not something that the government should be allowed to do.

I should also mention that the special First Amendment status of broadcast radio, under which some restrictions on vulgarities and even on content that simply discusses certain sexual themes have been upheld, is not relevant here -- the case didn't turn on this, and would have come out the same way if it had involved cable radio, or Internet radio, or CDs, or any other fully protected medium. (I think the lower protection for broadcast radio is itself unsound, but that's a separate matter.) I should also mention that the defendant didn't raise the First Amendment here, and the court therefore didn't discuss it.

Thanks to Michael Masinter for the pointer.

EKGlen (mail):

As a matter of good manners, and sound business management, I gladly condemn people who expose unwilling colleagues to such speech.

As the law so rarely leads to outcomes that harmonize with good manners and sound business judgment, its hard to fault it on the rare occasions when it does.
5.2.2008 5:08pm
NI:
Question: Suppose a gay employee (in a jurisdiction in which sexual orientation is a protected class) objects to Christian radio programming in the next cubicle, and when the company tells that employee not to play Christian radio programming, he responds that the company is engaging in religious discrimination since other employees are allowed to play non-religious radio programming. Short of banning all radios altogether, what should the company do?
5.2.2008 5:19pm
whit:
i was always wondering if i could get sued for the radio in my police car.

im driving an arrestee to jail and i have talk radio on. randy rhodes, michael savage, mike malloy, or some rock dj says something offensive, can the person in the back of my police car sue me? that thought did cross my mind.

believe it or not, a downtown seattle mcdonalds used to play country music on their speaker (that broadcasts just outside the store) and was told they were 'racist' because many minority youths used to hang out outside the store, they don't like country music, and that the mcdonald's was doing it to drive them away... numerous comments in the media such as the one below

from the 7/7/99 seattle weekly...

"The crowd around the McDonald's at Third and Pine, long a meeting ground for downtown street-corner society, looks smaller, more subdued, and, well, whiter of late. That might have something to do with the country-and-western music playing over the loudspeaker. Not to impute any racial motive here; you don't have to be black to hate Nashville schlock. But businesses and towns often use music to define clientele and discourage idlers—as when they pipe out easy-listening or classical sounds to drive off riffraff. Asked about McDonald's intent, the manager would only say, "That's our choice."
5.2.2008 5:23pm
Eugene Volokh (www):
EKGlen: I wouldn't say that a law "harmonize[s] with good manners and sound business judgment" just because it legally mandates behavior that is normally mandated by good manners and sound business judgment. Doing something as a matter of decency or good sense, or even as a result of social or economic pressure, is quite different from being legally forced to do it, it seems to me.
5.2.2008 5:28pm
DG:
Whit,

If you were my employee, I'd tell you to not listen to political talk radio at work. For one thing, you're supposed to be working, not listening to the radio. I don't even like people playing music at work - some people have a hard time concentrating, and what happens when there is a phone call or interaction with a customer? The whole idea of radio at work is unprofessional, be the workplace a police car or an accounting firm.
5.2.2008 5:34pm
ithaqua (mail):
There's no such thing as a right not to be offended. Women who want to work alongside men need to understand that men are going to act like men, and they (the women) need to take responsibility for their own lives; they can adjust to the workplace culture or find another job that suits their delicate sensibilities, but they can't go running to Big Daddy Government to make the boys play nice. In other words: girl, if you can't stand the heat, get back in the kitchen :)
5.2.2008 5:37pm
AngelSong (mail):
ithaqua, just curious, but do you have a side gig doing commercials for Geico?
5.2.2008 5:42pm
Jim Rhoads (mail):
The Court's legal analysis in this case is not novel. The totality of the record facts narrated in the decision would lead me to believe that under current law, this case would go to the jury 80% of the time.

The first amendment defense is one that in my experience hasn't been developed in typical employment litigation. It should be. If I defend any more of these cases, I certainly will raise it.
5.2.2008 5:44pm
Anderson (mail):
Y'know, as *one* element in a hostile-environment claim, I don't actually have a problem with this.

The offensive radio program, in an otherwise innocuous setting, I don't think would get her to the jury.
5.2.2008 5:47pm
HipposGoBerserk (mail):
I'm always struck by how amazingly stupid these types of shows (I'm assuming it was Stern or one of his imitators) make men sound. I think the programming, by showing what appeals to young, is more insulting to men then women.

I also am struck by the fact that I've known a lot of women who agree with that first point and/or are equally amused by the programming. Also, I know a lot of men offended by the programming's graphic nature. It seems more accurate to say that the injured class are, for lack of a better term, social conservatives, not women. For me, this makes clear the inanity of this approach.

HGB
5.2.2008 5:47pm
Elliot Reed (mail):
There's no such thing as a right not to be offended. Women who want to work alongside men need to understand that men are going to act like men, and they (the women) need to take responsibility for their own lives; they can adjust to the workplace culture or find another job that suits their delicate sensibilities, but they can't go running to Big Daddy Government to make the boys play nice. In other words: girl, if you can't stand the heat, get back in the kitchen :)
Let's try this another way. Men who are going to work alongside anyone need to not act like assholes. If you can't deal with the basics of civilized behavior, like not calling people "bitch," "cunt," and "whore," not telling sexist jokes (which is probably what "sexually themed jokes" is code for), or not playing vulgar radio stations that are going to offend your coworkers, you need to get out of the workplace. In most offices, you would be so fired if you persisted in that kind of thing. I will not comment on whether it should be illegal, but the idea that men have an inherent, uncontrollable desire to act that way is bullshit.
5.2.2008 5:57pm
Guest101:
I'm often sympathetic to the defendant in these cases, but I really don't see a problem here. Your analysis focuses on the content of the speech, but surely you wouldn't argue that these kinds of statements, if made directly to the plaintiff by a co-worker, would be actionable? It seems to me that the real question is whether the offensive statements are also actionable if broadcast in the workplace in the presence of an unwilling listener. Given that the speech was objectively offensive and the plaintiff's complaints did not resolve the situation, I see no problem with letting this go forward as one element of her claim.
5.2.2008 6:02pm
Eugene Volokh (www):
Guest101: I think there's an important constitutional difference between speech said to willing or potentially willing listeners -- even when some unwilling listeners are present -- and speech said specifically to an unwilling listener. The offended listener might constitutionally be given a veto power over speech that goes just to him. But he shouldn't be given such a legal veto power over speech that he overhears, but that also has willing listeners or viewers. I elaborate on this in more detail here (as to the first category) and here (as to the second).

Anderson: As I argue here, allowing liability based even partly on constitutionally protected speech will improperly punish and deter such speech. But what's noteworthy about this case is that here all the speech was not directed at the plaintiff (that's the category of speech that I think needs to be protected against government suppression).
5.2.2008 6:12pm
whit:
"If you were my employee, I'd tell you to not listen to political talk radio at work. For one thing, you're supposed to be working, not listening to the radio. I don't even like people playing music at work - some people have a hard time concentrating, and what happens when there is a phone call or interaction with a customer? The whole idea of radio at work is unprofessional, be the workplace a police car or an accounting firm."

some interesting points, but...

thank god i am a union man.

fwiw, most cops i know listen to either music or talk radio in their cars.

one of the great things about police work is that (if you are not working in an office but in a police car) is that you CAN play music, talk radio, etc. while driving around and not have to worry about the "office environment" since it is your (and if two person car) and your partner's environment.

i cue up ride of the valkyries of course, at the beginning of my pursuits!

but nobody really answered my question. does an ARRESTEE in the back of a police car have any cause to sue for hearing offensive talk (or music) radio while being transported in a police car ?
5.2.2008 6:14pm
Guest101:

The offended listener might constitutionally be given a veto power over speech that goes just to him. But he shouldn't be given such a legal veto power over speech that he overhears, but that also has willing listeners or viewers.

I would certainly agree with that in the context of speech in a classic public forum, but employees are to some extent a captive audience in the workplace, and it seems reasonable to me to give them some greater degree of veto power over speech to which they are exposed (at least where the speech is not related to job duties). This seems particularly reasonable when, as here, the speech is objectively offensive in the sense that it would certainly give rise to a cause of action if made directly to one co-worker by another. Since the plaintiff's co-workers were made aware of her objection to the radio show, I don't see a very meaningful difference here between intentionally playing the radio in her presence and making the statements directly.
5.2.2008 6:25pm
frankcross (mail):
EV, how about this hypo. A worker repeatedly shouts throughout the workplace: "All women are sluts." "Women are evil," etc. Suppose that there were willing listeners in the workplace.

With enough frequency, that would create a hostile environment that made it impossible for women to work there. Do you think that this is constitutionally protected, though otherwise a violation of Title VII?
5.2.2008 6:28pm
GD (mail):
What comes next, someone claims harassment because of the book you are reading?

http://www.thefire.org/index.php/article/9255.html
5.2.2008 6:43pm
Anderson (mail):
But what's noteworthy about this case is that here all the speech was not directed at the plaintiff

Not following here. If I'm black and I work at a business where all the black customers are routinely referred to as "niggers," "coons," and "pickaninnies," then I don't think it really assauges things that I'm not personally addressed with these words -- to my face, anyway.

Presumably all these words are being used behind the customers' backs, so it's fair of me to suspect this is what I'm called when absent.

But I don't think that inference is even necessary. It doesn't help that I would seem to be the Good You-Know-What where my white co-workers are concerned.
5.2.2008 6:46pm
Houston Lawyer:
This is the natural result of allowing "hostile work environment" lawsuits. Nothing in labor law prohibits an employer from being a total ass, as long as he offends all equally. In this case, the law is an ass.
5.2.2008 6:52pm
David Walser:
[E]mployees are to some extent a captive audience in the workplace, and it seems reasonable to me to give them some ... degree of veto power over speech to which they are exposed (at least where the speech is not related to job duties).


Again, why is the government the proper referee? We are not a bunch of kindergarteners in need of a schoolyard monitor. Adults can, and should, deal with these sorts of issues on their own. The pigs who use such language and discuss such topics within earshot of someone else will never grow up if the only arbiter of their behavior is the government. Government power is too imprecise and expensive to be used effectively for such concerns.

I think public policy took a wrong turn in the 50's and 60's when we decided it was proper for the government to regulate private interactions. Perhaps racism (or some other ism) was so entrenched in society that governmental intrusion into private relationships was needed, but that's not the case today. I'd rather it were legal to refuse to serve someone at a lunch counter then to have an overly intrusive government. I'm not trying to make the world safe for bigots; I'd like to destroy them in the marketplace. Having offloaded to government the responsibility for determining what is acceptable behavior (if it's not illegal it's okay), too many of us tolerate what was intolerable behavior not too long ago.
5.2.2008 7:01pm
theobromophile (www):
There's no such thing as a right not to be offended. Women who want to work alongside men need to understand that men are going to act like men, and they (the women) need to take responsibility for their own lives; they can adjust to the workplace culture or find another job that suits their delicate sensibilities, but they can't go running to Big Daddy Government to make the boys play nice. In other words: girl, if you can't stand the heat, get back in the kitchen :)

Err... you are presuming that women are entering a male workplace, much like entering a male locker room after a football game. Your logic seems to go like this: since men were there first, they get to make the rules. They own that part of the playground.

I'm sorry, but I think we gave up the idea that the popular group owns part of the playground back in eighth grade. It would be absurd to say that men, if they want to enter an industry, ought to understand that women are there and will act like women. The fact that men were in the workplace first, years ago, does not give the modern, twenty-first century man a special claim to it.

That said, I have little sympathy for this woman. Men take down pornographic pictures and turn off the vulgar radio stations when women put up their own beefcake pictures. I've known a few women who asked the guys to take down the pin-ups, got ignored, and brought in their own pictures of mostly-naked men. When the guys asked them to take it down, they asked for a quid pro quo - the beefcake comes down if the girls in swimsuits stay home. For some reason, the men all complied....
5.2.2008 7:23pm
Fub:
whit wrote at 5.2.2008 5:14pm:
but nobody really answered my question. does an ARRESTEE in the back of a police car have any cause to sue for hearing offensive talk (or music) radio while being transported in a police car ?
For some of the junk I occasionally hear on radio these days, I wouldn't be surprised if they sued you under international law for torture, or inhumane treatment of prisoners at least.

You don't want to be tried at The Hague for war crimes do you?
5.2.2008 8:11pm
BRM:
How is it "speech" to turn on a radio and broadcast it in an ambient manner? The radio personalities make the speech, but the defendant in this case is the employer, not the radio station or the talk show hosts. Maybe I am adopting the speech of the radio personality if I put ten people in a room and tell them to listen to the radio show. But if I simply turn the radio on in my office, and others hear the broadcast, how can I be said to be "speaking" in a way that could give me First Amendment protection?
5.2.2008 8:31pm
Hans Bader (mail) (www):
The ruling's reasoning is quite wrong. It may be consistent with some OTHER circuit's past precedents, but it flouts the Eleventh Circuit's OWN binding precedents on the scope of Title VII harassment law.

Those precedents require a plaintiff to show not just that she was pervasively offended based on her sex, but also that she was targeted based on her sex and thus subject to intentional discrimination.

Insofar as it revives a Title VII damage claim based on remarks the plaintiff heard over the radio, the ruling also violates the plain language of 42 USC 1981a, the damages provision of Title VII, which expressly allows compensatory damages only for "intentional" discrimination, not "disparate impact."

The ruling turns harassment law into a disparate IMPACT law, rather than a disparate TREATMENT law (that is, intentional discrimination), contrary to the Eleventh Circuit's prior recognition in cases like Baldwin v. Blue Cross, 480 F.3d 1287, 1302 (11th Cir. 2007), that harassment claims in the Eleventh Circuit require a showing of disparate TREATMENT.

The fact that women are more offended isn't enough, if they aren't TREATED differently.

The ruling also flouts the Eleventh Circuit's past recognition in another case that Title VII harassment claims, like 14th Amendment harassment claims, require a showing of "intentional discrimination" against women based on their sex, not just that women are disproportionately offended.

As we all know, the Supreme Court held in Personnel Administrator v. Feeney (1979), intentional discrimination means PURPOSEFUL discrimination, not just conduct that negatively impacts women (even if it is foreseeable that it has such an impact).

This ruling takes passing DICTUM from the Baldwin v. Blue Cross decision and uses it to override the binding HOLDING of Baldwin v. Blue Cross. That is perverse.

I have discussed elsewhere what the correct law is at Point of Law, here.

Here I discuss judicial dishonesty in sexual harassment cases, and how courts use inconsistent reasoning to impose, maximize, and collect damages in harassment cases.

All too often, courts twist harassment law to try and punish perceived wrongdoers, regardless of whether the wrongdoing is in any sense "discriminatory." Title VII is not an all-purpose "bad behavior" law, or a clean language law. It is a SEX DISCRIMINATION law. Non-discriminatory abuse should be remedied under other legal theories, like intentional infliction of emotional distress.
5.2.2008 8:34pm
ralph:
I am fascinated to read this and think back on my work life, which started as a young college student working in a steel-drum plant in Pittsburgh, where the all-male workforce had photos of naked women on the walls of the shop.

Then, into the Navy, where it was forbidden, by custom, for officers to discuss the following topics in the wardroom: religion, politics, and women. This was the custom because of the hard feeling that such subjects could engender in a closed environment. It was made quite clear to us why this was a good custom, one evening, when one young officer mentioned the right to abortion, and the Chief Engineer exploded with a diatribe about baby-killers. We never went there again...

Then on to a job in the government, and working with one young woman who liked to dress in expensive designer clothes. I worked closely with her, and would occasionally comment about the style of her clothes, or make a joke about something surely being polyester, not silk. She took it all quite well, and we had fun working together. There were also brown-bag lunches where we would sit around a table with our supervisor(!) and play games like "How many countries/states/unusual places have you visited where you have had sex with someone?" No one was offended.

Finally we come to my last years working in government, where I would not dare to joke about a woman's clothing, or even comment about it, for fear that she might read something offensive into the comment. No touching of any sort whatsoever, no glances, no compliments on appearance whatsoever. Lots of EEO and sensitivity training. And the supervisor mentioned above was told to retire because he was carrying on a relationship with a woman working in the agency who was not his wife (she did not work for/with him). Another was caught in a compromising position in a vehicle in the parking garage, and was also told to retire.


Change is good. Change is good. Change is good. Change is good. Keep saying it, because the management types tell us it is the truth...
5.2.2008 8:59pm
Hans Bader (mail) (www):
For the reasons stated above, I think that the Eleventh Circuit wrongly decided Reeves v. C.H. Robinson Worldwide, 2008 WL 1848882 (11th Cir. Apr. 28, 2008), as a statutory matter, even though I can sympathize with the plaintiff.

As to the First Amendment issue, it's worth noting that some states' harassment laws permit plaintiffs to sue not only their employer, but anyone who aids or abets the creation of a hostile work environment.

If one accepts the statutory logic of this ruling (which I don't), then the plaintiff could (had she lived in such a state) sued the radio station, not just the employer, given the contribution that the radio station's programming made to her work environment.

Thus, it sets a very bad precedent for the media as well.

In Lyle v. Warner Brothers Television Productions 38 Cal. 4th 264, 132 P.3d 211 (2006), the California Supreme Court rejected a sexual harassment claim by a female writer's assistant based on sexual jokes told by the writers of the adult-oriented sitcom "Friends" as part of the process of producing the show. The court noted that those comments were not made based on her sex, and also that comments not aimed at the plaintiff are not as offensive as those that are. Ultimately, it found that she did not experience harassment based on sex, as discrimination laws require. Thus, it did not reach the First Amendment issue raised by the defendants.

Justice Chin, however, wrote a special concurrence that expressed support for a First Amendment defense to liability for media-related speech that is not aimed at the plaintiff.

Similarly, in the Reeves case, the radio programming that offended the plaintiff was not aimed at her.

The defendants in the Reeves case may not have raised a First Amendment defense, and the issue may thus not have been presented or decided. (See Waters v. Churchill, 511 U.S. 661, 678 (1994) (plurality opinion) ("cases cannot be read as foreclosing an argument that they never dealt with"); see Plaut v.Spendthrift Farm, 514 U.S. 211 (1995) (striking down a law even though a similarlaw was previously upheld, in a case where the same constitutional attack was notmade: ''the unexplained silences of our decisions lack precedential weight.'').

But future defendants can and should raise the First Amendment defense in similar circumstances. When they do, the Eleventh Circuit should reconstrue the scope of harassment law more narrowly to avoid serious First Amendment problems, in keeping with the canon of constitutional doubts, which requires courts to construe a statute to avoid potential constitutional problems. See United States v. X-Citement Video, Inc., 982 F.2d 1285, 1296 n.7 (9th Cir. 1992) (Kozinski, J., dissenting).

Moreover, the better path would have been for the judges to order briefing on the issue, given its manifest importance. Too bad it can't be reheard, given the dangerous precedent it sets. Bad facts have created bad law here.
5.2.2008 9:01pm
Sk (mail):
I'm torn by this. On the one hand, the extension of sexual harrassment law to limit what would otherwise be constitutional rights is disturbing. On the other hand, well, is such speech really constitutionally protected?

I am still surprised (not shocked, but genuinely surprised) when I occassionally hear what can be said on the radio (or even broadcast television) today. The types of speech, mentioned in this case simply weren't said on the radio a generation ago (I suspect 20 years ago, but certainly 30 years ago, when I was a kid).

Was it really the case that, 30 years ago, people could say the stuff on the radio (i.e. it was interpreted to be constitutionally protected speech) that they can today, and simply chose not to (or the radio industry as a whole imposed a speech code)?
Or was it that such speech wasn't considered constitutionally protected? That there was some kind of exception for public airwaves-that limits to speech could be imposed on broadcasts?

And if the second was the case, well then, its really not 'constitutionally protected' is it? Its simply defined as such by lawyers today (And wasn't defined thus by lawyers and judges 30 years ago).

And if this is the case, then its really not that sexual harassment laws are interfering with 'constitutional' (or, 'absolute') rights. Rather, sexual harassment laws are interfering with a very contingent interpretation of free speech, which may be good or bad, but really represents more of a political tradeoff than the interference of a right. Get a new set of lawyers in the judiciary, and you no longer have a constitutional problem-its back to being a political debate within a democracy again.

Sk
5.2.2008 9:08pm
DG:
Ponder being forced to listen to Oprah and Dr.Phil in a predominantly female workplace. I'm not sure if thats against the law, but, by god, it should be. I don't know how long I'd last.
5.2.2008 10:23pm
Duncan Frissell (mail):
Eugene,

So is the teaching of evolution religious discrimination when directed towards Christian students?
5.2.2008 10:30pm
Mark I (mail):
Professor:

Among the many things that trouble me about this decision, one question in particular stands out. According to the decision, the trial jury will be asked to decide if the language used at her workplace was sufficiently "severe or pervasive" to rise to the level of sexual harassment. But my question is, severe enough to be harassing to whom?

Is it sufficient that Ms. Reeves found this behavior harassing? Or would she have to show that the average woman would also find it harassing? If the behavior is deemed to be harassment simply if Ms. Reeves finds it offensive, doesn't this effectively give every woman censorship authority over her workplace?

Mark
5.4.2008 1:19am
R. G. Newbury (mail):

You Americans are so screwed up. Wasting legal time and Court time on a woman being "offended" by what was said on a *radio* program, which was allowed by the FCC. And going through appeals with a further waste of Court time....

It's time you woke up and smelt the coffee. Canada is *SO* far ahead of that. *We* have "Human Rights Commissions" which aren't Courts and therefore do need to waste time on procedure and rules, of evidence, or procedure. And the complainant is *always* right and the defendant is *always* guilty, as in criminally guilty, not as in civilly liable. And the Commission is allowed to plant evidence. All in order to ensure that no-one is ever, ever, ever offended. Because, of course, the right not to be offended is the paramount law, and must be upheld. And if you think they are being intolerant, you will be punished until you morale improves.

\end font sarcastics>
5.4.2008 7:13pm
Hans Bader (mail) (www):
The court's ruling is based on a particularly weak argument. It contradicts circuit precedent that requires a showing of purposeful, intentional discrimination for sexual harassment claims.

In the Eleventh Circuit -- unlike some circuits -- the elements of a Title VII sexual harassment claim and a Fourteenth Amendment sexual harassment claim are the same, meaning that a plaintiff must show purposeful, intentional discrimination (by purposeful, I mean an intent to treat differently, not a specific intent to harm -- a defendant who grabs women's buttocks over their protests is not immune from liability merely because he deludedly thinks he is God's gift to women), not just that the plaintiff was reasonably offended.

In Cross v. Alabama, 49 F.3d 1490, 1507-08 (11th Cir. 1995), the Eleventh Circuit held that "the elements of the two causes of action [sexual harassment claims under Title VII and the Fourteenth Amendment] are the same," meaning that a plaintiff "must prove discriminatory motive or purpose."

The Supreme Court has made clear that the fact that a woman is adversely affected, and that an employer knows this, is not enough to satisfy this exacting standard unless the employer intends to treat the female employee differently:

"Discriminatory purpose,' however, implies more than intent as volition or intent as awareness of consequences. . .It implies that the decisionmaker, in this case a state legislature, selected or reaffirmed a particular course of action at least in part "because of," not merely "in spite of," its adverse effects upon an identifiable group." Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256, 279 (1979)

Thus, for the plaintiff to prevail, she must show that her co-workers aimed offensive comments at her based on her sex (or broadcast the offensive comments specifically to annoy her based on her sex), not just that she was reasonably offended by them and that they were pervasive.

"Title VII does not prohibit profanity alone, however profane. It does not prohibit harassment alone, however severe and pervasive. Instead, Title VII prohibits discrimination, including harassment that discriminates based on a protected category such as sex. Because a claim of sexual harassment under Title VII is a claim of disparate treatment, in order to prevail a plaintiff must show that similarly situated persons not of her sex were treated differently and better." Baldwin v. Blue Cross, 480 F.3d 1287, 1301-02 (11th Cir. 2007); see also Lyle v. Warner Bros., 132 P.3d 211 (Cal. 2006) (sexual jokes not aimed at plaintiff did not support her sexual harassment claim); Scusa v. Nestle U.S.A., Inc., 181 F.3d 958 (8th Cir. 1998); Hocevar v. Purdue Frederick Co., 223 F.3d 721, 737 (8th Cir. 2000); Duncan v. Denver, 397 F.3d 1300 (10th Cir. 2005); Pasqua v. Metropolitan Life Ins., 101 F.3d 514, 517 (7th Cir. 1996); Gallant v. Board. of Trustees, 997 F. Supp. 1231, 1232, 1234-35 (N.D. Cal. 1998).

Courts recognize that being terribly offended, even for good reason, is just not enough for sexual harassment liability where discriminatory intent or purpose is required. For example, the Seventh Circuit, which does not (unlike the Eleventh Circuit) require the same showing to recover on a Title VII claim as on an equal protection claim, recognizes that even grossly bigoted statements made in the presence of a plaintiff doesn't show the intent needed to recover on a 14th Amendment harassment claim. In Huff v. Sheahan, 493 F.3d 893, 902 (7th Cir. 2007), that court upheld a ruling for a harassment defendant under the 14th Amendment, because "relief is available to a plaintiff claiming a hostile work environment only when she can demonstrate that the defendant acted with discriminatory intent." By contrast, itt reversed a ruling for the defendant under Title VII, ONLY because it -- unlike the Eleventh Circuit's decision in cases like Cross v. Alabama -- has precedents specifically allowing plaintiffs to recover for sexual harassment under Title VII absent discriminatory purpose, and specifically holding that the Title VII standard is different from the 14th Amendment standard.

The Eleventh Circuit, by contrast, made very clear in Cross v. State of Alabama, 49 F.3d 1490, 1507-08 (11th Cir. 1995), that a plaintiff "must prove discriminatory motive or purpose" under BOTH Title VII and the Equal Protection Clause (Section 1983), because "the elements of the two causes of action are the same."

Eleventh Circuit judges have reiterated that understanding ever since. See Mitchell v. Pope, 189 Fed. Appx. 911, 913, 2006 WL 197600111, *1 (11th Cir. July 14, 2006) ("elements of the two causes of action are the same"); Downing v. Bd. of Trustees of Univ. of Alabama, 321 F.3d 1017, 1023 (11th Cir. 2003) ("Cross holds that the elements of a sexual harassment claim under Title VII and the Equal Protection Clause are the same -- meaning that the employee must prove that the state actor intended to discriminate because of the employee's sex") (opinion later withdrawn for other reasons); Downing, 321 F.3d at 1022 n.9 (In Title VII, "this language is aimed at intentional discrimination, and to prove a violation, a plaintiff must profer either direct or indirect evidence of the employer's discriminatory intent").

The Reeves decision conflicts with circuit precedents such as Cross v. Alabama, 49 F.3d 1490, 1507-08 (11th Cir. 1995) and Baldwin v. Blue Cross, 480 F.3d 1287, 1301-02 (11th Cir. 2007) (requiring proof that "similarly situated persons not of" plaintiff's "sex were treated differently and better").

Reeves justified its jettisoning of the discriminatory intent requirement by saying that such intent is not required in racial harassment cases. But even if that were in fact true (and it does not appear to be in some circuits, see Caver v. City of Trenton, 420 F.3d 243 (3d Cir. 2005) (holding that racial harassment plaintiff, just like sexual harassment plaintiff, must show that "(1) he suffered intentional discrimination because of his [race]" and "(2) the discrimination was pervasive and regular")), circuit panels are bound by their own past sexual harassment precedents whether or not they seem consistent with other areas of the law, like racial harassment.

Moreover, requiring discriminatory intent or purpose is consistent with how courts handle religious harassment cases, where discriminatory treatment and intent are required, and the panel gave no justification for choosing to ignore those cases in favor of its perception of how racial harassment cases ignore the requirement of discriminatory intent. See Rivera v. Puerto Rico Aqueduct and Sewers Authority, 331 F.3d 183, 190 (1st Cir. 2003) (rejecting religious harassment claim because of absence of discriminatory purpose; "Rosario asserts that the lyrics of the song are offensive to her, given her deep religious convictions. We do not doubt this is so. But the question is not whether a religious person could find the song offensive; it is whether religious animus prompted Rivera to sing it to her").

I have already explained above why the ruling is contrary to precedent and in tension with statutory language, and how it raises serious First Amendment problems. Interpreting sexual harassment law as the Reeves decision does is problematic because it results in the law prohibiting a wide range of otherwise protected speech, violating the canon of constitutional doubts.

It may also raise potential equal-protection problems, by giving a gender-based preference, in allowing women to sue over language for which their male co-workers have no remedy. Assuming that sexual speech has a "disparate impact" on female employees -- as many sexual harassment rulings do -- raises serious equal-protection problems, since it rests on a gender stereotype. In striking down a statute banning "obscene, profane, indecent, vulgar, or suggestive" communications to women, a court observed that laws "based on 'old notions' such as a belief that females should be afforded special protection from 'rough talk' because of their perceived 'special sensitivities' can no longer withstand equal protection scrutiny." See In re Joseph T., 430 S.E.2d 523, 524 (S.C. 1993).

Moreover, basing recovery on notions that sexual or sexist speech has a "disparate impact" on a female employee may be problematic as well. Disparate impact claims typically require proof that an employer practice systematically excludes female or minority employees, and can't be based on the impact on just one employee. See Coe v. Yellow Freight, 646 F.2d 444 (10th Cir. 1981). The typical sexual harassment case involves just a single plaintiff, who often seeks damages even if other employees of the same gender are perfectly happy with their workplace, or if there are no other employees of her gender in the workplace. In such cases, there simply is no "disparate impact" on the overall gender. In Reeves, the plaintiff seems to have been the only female employee adversely affected by the conduct she recounted.

Moreover, the damages provision of Title VII, 42 USC 1981a, only permits the remedy that most harassment plaintiffs seek (damages) in cases of "intentional discrimination," not "disparate impact."
5.5.2008 2:57pm