- Fourth Circuit: Title IX may oblige universities to take action against outside social media sites whose content is said to create hostile environment. By blocking student access to them? [Samantha Harris, FIRE, Eugene Volokh, Robby Soave on University of Mary Washington ruling]
- Return of the loyalty oath? Some senior academics speak out against required faculty diversity statements and pledges, at the University of California [Stephen Bainbridge, Nick Wolfinger, John McGinnis, Law and Liberty] and Harvard [Colleen Flaherty, Inside Higher Ed, Jeffrey Flier, Times Higher Education]
- Speech codes and “The Coddling of the American Mind”: Greg Lukianoff and Adam Goldstein guestblog at Volokh Conspiracy [series: first, second, third, fourth, fifth]
- “OCR’s use of overly broad anti-Semitism definition threatens student and faculty speech” [Zach Greenberg, FIRE] University of Washington lecturer publishes article on sex differences in pursuit of computer careers, it’s cited as gender harassment as part of successful push for training and curriculum review [Stuart Reges, Quillette] Update on “Fourth floor, ladies’ lingerie” joke episode [Katherine Mangan, Chronicle of Higher Education, earlier]
- Bias response teams are benign-sounding way to police speech [Dan E. Way, Martin Center] Prescribed first-year programs do much to bend the assumptions surrounding what can be safely said [John Tierney, City Journal] Artists’ intent was to challenge Confederate imagery, but some students were offended, so down it went [Inside Higher Ed: Scott Jaschik and Emily Chamlee-Wright and Sarah Skwire]
- Speech First, recently formed nonprofit group, sues University of Texas over speech policies [Phil Prazan, KXAN, Washington Examiner: Lauren Cooley and Grant Addison]
Sweden’s advertising ombudsman has ruled the much-shared “Distracted Boyfriend Meme” improperly presents women as “sex objects” and is “a stereotypical picture of men seeing women as interchangeable”. While the industry panel itself has no power to impose a legal ban, its views might prove consequential since the Stockholm city council has enacted a ban on sexist billboards in public spaces. [Catherine Edwards, The Local]
As workplace expectations change in response to the #MeToo scandal, there is no point in hoping that some new set of norms will emerge that avoids exclusionary “you don’t belong” signals to some workplace participants: “Whatever new norms emerge will also exclude people, and not all of those cast out will be bullies, predators, or, for that matter, men. All norms draw lines. Norms that police speech and attitudes, as opposed to physical actions, are particularly likely to snare violators whose deviance is unconscious or benign.” [Bloomberg View]
Meanwhile, in France: “The letter [from revered actress Catherine Deneuve and ‘around 100 French women writers, performers and academics’] attacked feminist social media campaigns like #MeToo and its French equivalent #Balancetonporc (Call out your pig) for unleashing this ‘puritanical… wave of purification’.” [AFP; France Culture interview with Sarah Chiche (in French); Le Monde open letter reprint (in French)]
“EEOC recently announced the availability of ‘respectful workplace’ training, which [prompted a] concern about whether overly prescriptive rules about workplace behavior (like “no negativity” mandates) might chill workers’ NLRA rights.” NLRB rulings in recent years have included protecting workers in some circumstances from being disciplined for cussing out their bosses, and the NLRB has announced the employer policies against negativity and gossip may also violate the law. At the same time, tolerating hostile and personal talk can expose an employer to liability under harassment law. The agencies are hoping to work out the contradictions among themselves. [Kate Tornone, HR Dive]
In strike situations, the law can wind up getting flipped on the question of when an employer may or must dismiss an employee for racial slurs that create a hostile environment. An Eighth Circuit panel in Cooper Tire v. NLRB, over a dissent from Judge C. Arlen Beam, approved a court’s decision overturning an arbitrator’s ruling and reinstating the offending worker who had yelled the slurs at replacement workers. More: Terry Carter, ABA Journal.
I’ve got a new piece at USA Today on the background of why hostile-environment law creates incentives for a company like Google to discipline or fire an employee like James Damore, who wrote a now-famous memo on the the firm’s gender policies.
Now, just as two decades ago, many outsiders look at a firing-over-speech and say it’s just a private firm’s decision. No public policy or First Amendment implications, right?
And it’s true that sometimes an employer’s decision to fire would have been made even with no legal thumb on the scale. The disruption caused by an instance of speech, or co-workers’ or managers’ dislike for it, would have been enough. Other times legal considerations did make the difference. Hard to tell the two cases apart!
So as a way of evading responsibility system-wide it’s kind of brilliant. Those who write laws can blame private actors’ decisions. The private actors in turn can feel as if their hands were tied given the legal reality they might face.
And the piece concludes:
Google is currently being sued on sex discrimination claims, which means lawyerly caution would be at a zenith on whether to let its corporate culture be portrayed in a future courtroom as tolerant of sexist argumentation.
To sum up: don’t assume Google acted unusually. Under current legal incentives, what just happened counts as normal.
Full piece is here. Here’s the text of the memo, and here’s Conor Friedersdorf on how early coverage of the memo misrepresented its contents. The Jonathan Rauch 1997 New Republic piece I quote in my USA Today article is here; it quotes my 1997 book The Excuse Factory. And I also recommend this take by law professor Erica Goldberg at In a Crowded Theater.
- Go figure: Trump executive order says “Hire American” even as federal law bans job discrimination in favor of American citizens [Jon Hyman]
- Though ADA excludes “gender identity” claims, judge green-lights suit over gender dysphoria [P.J. D’Annunzio, Law.com]
- “UC Berkeley Drops Free Online Videos In Response To Government Threat” [Jane Shaw/Heartland, and thanks for quote]
- “Hostile work environment can be created with one racial slur, 2nd Circuit rules” [ABA Journal]
- Connecticut’s CHRO attracts much higher per capita filings of workplace discrimination than comparable agency in Massachusetts, with complaints from incumbent employees a key growth area [Marc E. Fitch, Yankee Institute; Daniel Schwartz with somewhat different view]
- Missed, from December: Philadelphia could close businesses deemed to discriminate [Tricia Nadolny, Philadelphia Daily News, related earlier]
- “Explore the unthinkable”: invite a speaker whose message makes you uneasy [Walter M. Kimbrough, Chronicle of Higher Education]
- “The Pseudo-Science of Microaggressions” [Althea Nagai, National Association of Scholars via George Leef, Martin Center]
- Imagine setting out to combat the influence of the Greeks and Romans in American life — by vandalizing college fraternities [Jillian Kay Melchior on University of Texas episode]
- Hereditary intelligentsia and self-actualizing graduate study: “Lessons from Mid-Century Soviet Higher Education” [Alex Usher via Tyler Cowen]
- Some resemblances between “get them off campus” campaigns against George Soros in Hungary, Koch brothers here [Alberto Mingardi]
- “Some who in private were sympathetic to Tuvel, felt compelled to join in the attacking mob.” [Kelly Oliver, Philosophical Salon] More on Rebecca Tuvel/Hypatia furor: Jesse Singal/New York, Daily Nous, Jason Brennan (“Personally, I’d say that failing to fully engage critical theory is a feature, not a bug, of the paper.”), commenter on Singal article (“Hypatia herself, the journal’s namesake, was murdered by a mob in the year 415.”).
In blog posts and comments, two residents of a Virgin Islands condominium complex criticized two other residents who were (in line with rights prescribed to them under federal law) keeping emotional-support dogs despite a no-dog rule in the complex. Among other statements, one or the other of the two said dog owners would be “happier in another community,” speculated that “diploma mill” paperwork could certify any canine whose owner cared to claim stress, suggested the complex should “lawyer up” and be prepared to go to court to defend its rule against “known violators,” and proposed the dog owners be “ostracized” by other residents.
The dog-owning residents sued the neighbors, along with the condo association and other defendants. They cited federal legal interpretations, which have since been buttressed by a regulation issued in the Obama administration, that hold it “hostile environment harassment” under the Fair Housing Act to make statements that “interfere” with another’s exercise of rights under the law.
Now the Third Circuit, as part of a decision resolving numerous issues about the case, reversed grants of summary judgment in favor of the two blog writers and ruled that they could properly be sued for damages for creating a hostile environment under the Fair Housing Act. It described as “harassment” various instances of their critical speech and noted that a single instance of harassing speech could give rise to liability under the law. It is not clear whether the parties raised, and the court did not make any gesture toward considering, whether some or all of the statements involved might be protected by the First Amendment, which is mentioned nowhere in the opinion. [Revock v. Cowpet Bay West Condominium Association et al., see relevant section VI, pp. 31-41 of opinion via John Ross, Short Circuit]
As Hans Bader of the Competitive Enterprise Institute has pointed out, the Ninth Circuit in 2000 slapped down federal officials for having investigated Berkeley, Calif. residents who had fought a housing project that they believed would bring mentally ill residents or recovering substance abusers (both protected as disabled under the Fair Housing Act) to their neighborhood. “It found this principle was so plain and obvious that it denied individual civil rights officials qualified immunity for” having investigated the citizens. That case [White v. Lee] would appear to stand for the proposition that the First Amendment provides robust protection for much speech that criticizes, opposes, and disparages others’ exercise of rights under the Fair Housing Act, and that the speech does not lose protection just because others regard it as retaliatory or discouraging to the exercise of rights.
According to reports last month in the religious press, the owner of a small meat-packing operation in western Michigan left some pamphlets around in the breakroom reflecting his views on same-sex marriage (opposed) and got written up for it by inspectors with the U.S. Department of Agriculture, whose duties, it seems, include spotting and demanding prompt rectification of hostile-environment harassment, in this case consisting of the printed word. [Reformed Free Publishing Association, Gene Veith] And Stephanie Slade of Reason has a big essay on religious liberty, in which I’m quoted, in Jesuit magazine America.