Comments on: No preferred Lies

By: wavemaker

wavemaker — Mon, 25 Feb 2008 18:33:42 +0000

Tex,
As a republican, I of course appreciate your power of discernment.

By: Tex Mex

Tex Mex — Mon, 25 Feb 2008 17:59:49 +0000

“The laws against sex discrimination and harassment are NOT supposed to be “clean language” statutes…” – unless of course you are a black conservative nominated for the Supreme Court.

“…rather are supposed to be aimed at sex discrimination…” (using power, rank, etc to obtain sexual favors from subordinates) – unless of course you are the most powerful person in the world prowling the intern pool, in which case, it is not even sex!

By: Hans Bader

Hans Bader — Mon, 25 Feb 2008 17:29:17 +0000

In the New York Times story, the plaintiff complains about the alleged fact that when she entered the club there was “silence” rather than the men jumping to greet her.

I hope she’s not trying to base a lawsuit partly on that.

As the Ninth Circuit noted in Brooks v. City of San Mateo, 299 F.3d 917 (9th Cir. 2000), it raises serious First Amendment issues to base a discrimination, harassment, or retaliation claim on the fact that your co-workers don’t want to talk to you or associate with you.

The Fourth Circuit also rejected a retaliation and hostile work environment claim based on the fact that after the plaintiff brought an accusation of discrimination, her co-workers steered clear of her and avoided talking to her whenever possible. See Munday v. Waste Management, 126 F.3d 239 (4th Cir. 1997).

By: Richard Nieporent

Richard Nieporent — Mon, 25 Feb 2008 17:18:51 +0000

It appears that the NY Times is at it again.

By: Charlie B

Charlie B — Mon, 25 Feb 2008 16:37:57 +0000

Give me a call when the Jewish Womens’ Book Club admits a male black Muslim.

By: wavemaker

wavemaker — Mon, 25 Feb 2008 16:10:03 +0000

But I am not an agent of the course owner, just a patron. Does the golf course have to hire language police to keep patrons from speaking offensively?

Can an employer be held liable for the offensive remarks of patrons?

I @#^$R*! doubt it!

By: Hans Bader

Hans Bader — Mon, 25 Feb 2008 15:59:05 +0000

An honest court wouldn’t ban you from telling off-color jokes on the golf course, as long as you didn’t aim them only at female patrons, rather than exchanging them with patrons of both sexes.

The laws against sex discrimination and harassment are NOT supposed to be “clean language” statutes, but rather are supposed to be aimed at sex discrimination, as courts in other parts of the country have recognized. See, e.g., Scusa v. Nestle USA, 181 F.3d 958 (8th Cir. 1999) (vulgar language isn’t sexual harassment if it isn’t aimed at the female plaintiff because of her sex); Baldwin v. Blue Cross, 480 F.3d 1287, 1301-02 (11th Cir. 2007) (same); Lyle v. Warner Bros. Television Productions (Cal. 2006).

But courts in the New York region are unusually bad, and don’t always follow that sensible rule. They are inconsistent. Sometimes they do require a showing that comments were aimed at the plaintiff based on her sex for her to claim sexual harassment, see Brown v. Henderson, 257 F.3d 246 (2d Cir. 2001) (vulgarity not aimed at plaintiff based on her sex is not actionable sexual harassment), and sometimes they do not. Patane v. Clark, 508 F.3d 106 (2007) (vulgarity not aimed at plaintiff was actionable sexual harassment).

So the correct answer to your question is, “nobody really knows for sure.”