At oral argument yesterday in Babb v. Wilkie, a case on the standard needed to prove age discrimination in federal employment, Chief Justice John Roberts offered a hypothetical of a younger manager who says “OK boomer” to a job applicant. [Mark Sherman, AP] In November, we and others discussed the legal pressure on employers to keep employees from using that phrase.
"Ok boomer" is undeniably age-related comment inconsistent with #ADEA. Make clear unacceptable. If employee does not listen, take prompt and proportionate corrective action. #age #HR https://t.co/zNnHOTL0EX
— Jonathan A Segal (@Jonathan_HR_Law) November 5, 2019
1) Under federal employment discrimination law, employers face higher risk of liability if they fail to take action against stray workplace comments that are derogatory toward protected groups.
2) There is no exception for comments derogatory toward older persons.
3) People will now get warned, disciplined, or fired for saying “OK Boomer.”
Welcome to the House That Social Justice Built!
P.S. To make things clear, whatever lawsuits are at issue are unlikely to be aimed at whoever made the remark, but instead at the employer, which is after all the party with money worth going after. Most likely, claims of boomer insults, overheard or direct, will be used as additional leverage to raise the buyout/payoff level of departing older executives. That is why the employer, in its self-interest, has a reason to suppress such comments before they start. (The tweet above is by a seasoned management-side employment attorney.)
Age discrimination is already by some measures the most successful branch of employment discrimination law for plaintiffs, and it pays off especially in the case of high earners, that is to say persons of middle management rank and above, mostly affluent white males. They can afford to hire good lawyers, the sort who can afford to probe and trawl a large record for age-related remarks. [More: Robin Shea]
As I noted last year, the American Bar Association in 2016 adopted as a recommendation its Model Rule 8.4 (g),
which makes it “professional misconduct” for an attorney to engage in “conduct,” including verbal “conduct,” that “the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law.” …
UCLA law professor Eugene Volokh has argued that the ABA rule’s scope “is broad and vague enough to potentially apply to a wide range of political speech, and thus violate the First Amendment.”
The rule would invite charges of professional misconduct against lawyers who express or circulate opinions, jokes, or graphics that they should have known would make a listener uncomfortable based on one or another protected class membership. It would apply in an extremely wide range of contexts “related to the practice of law”, as listed in these April comments:
Activities that seem to fall within the extremely broad scope of proposed Rule of Professional Conduct 8.4(g) include:
* presenting CLE courses;
* participating in panel discussions that touch on controversial political, religious, and social viewpoints;
* teaching law school classes as faculty, adjunct faculty, or guest lecturers;
* writing law review articles, op-eds, blogposts, or tweets;
* giving media interviews;
* serving on the board of one’s religious congregation, K-12 school, or college;
* providing pro bono legal advice to nonprofits;
* serving at legal aid clinics;
* lobbying on various legal issues;
* testifying before a legislative body;
* writing comment letters to government agencies;
* sitting on the board of a fraternity or sorority;
* volunteering for political parties; and
* advocating through social justice organizations.
While some state codes of lawyer conduct already ban bias and harassment, these have generally been drafted much more narrowly. In Maine, for example, up to now the missteps have to have been committed “knowingly,” in the course of representing a client, and in a manner “prejudicial to the administration of justice” — all three important safeguards against overbreadth.
Model Rule 8.4 (g) has faced rough sledding around the states since it was proposed. According to these comments in October, “seven states have rejected the rule: Arizona, Illinois, Minnesota, Montana, Nevada, South Carolina, and Tennessee have rejected the proposal. The Attorneys General of four states have concluded that adopting the rule would violate the First Amendment: Louisiana, South Carolina, Tennessee, and Texas. Only Vermont has adopted the model rule in its entirety.”
As Vermont goes, so goes Maine: the Pine Tree State’s highest court has now adopted a version of the rule, although narrowed in several respects. In particular, the Maine version defines “the practice of law” in a less broad (though still quite broad) way that covers fewer purely social activities; it removes socioeconomic status and marital status from the list of protected classes; and it tries at least to define what sorts of speech it will deem to be bias or harassment. Its definition is still quite unclear in its contours, however, and far broader than the standard approved by the U.S. Supreme Court as to harassment law and speech liability in workplace and university settings.
Let’s hope other states don’t follow Maine’s example: even as narrowed, the rules curtail important rights.
In the mean time, however, there is heartening news from Ontario, Canada, where (as I reported last year) the Law Society had gone all in on rules that go much further than the ABA’s, requiring all lawyers on eventual pain of discipline to draft a personal Statement of Principles (SOP) avowing a dedication to principles of diversity, equality, and inclusion. The Society rejected a proposal “to create an exemption to the new mandatory Statement of Principles for persons who believe the requirement violates their freedom of conscience.”
But its membership revolted. Attorney Lisa Bildy and other SOP objectors led a campaign that, in a seeming miracle, elected 22 of its supporters to the 40 lawyer seats among the benchers (governors) at the Law Society. While the newly elected are not a majority because of the other seats on the body reserved for lay benchers and paralegals, the message was unmistakable (more on the campaign from Bruce Pardy, Murray Klippenstein, Teng Rong, and Dylan McGuinty). Now, in the face of a determined campaign of abuse directed at the incoming benchers (sidelight), the Law Society of Ontario’s governing Convocation will meet June 27 to begin considering whether to repeal, render optional, otherwise change, or retain the Statement of Principles requirements.
The June 27 Law Society meeting, and what follows, deserve a close watch by all of us concerned about the rise of speech codes and forced expression in the professions.
“We’re not interested in charging children or putting them in jail or fining them,” says a campaigner for Maryland’s “cyber-bullying” law, “Grace’s Law 2.0,” which is drafted to do exactly those things. “What we want to do is change the behavior so the internet is more kind,” says the same campaigner regarding the new law, which would encourage online users to turn each other in for potential 10-year prison terms over single instances of certain kinds of malicious, abusive speech, and is being billed as going farther than any other law in the country, as well as farther than the earlier Maryland law passed in 2013.
Bruce DePuyt at Maryland Matters reports that Senate Judiciary Chair Bobby Zirkin (D-Baltimore County):
said the 2013 law required that abusive comments be sent to the individual and be part of a pattern of conduct. With the rise of social media, that proved to be too high a hurdle, he said.
Under the new law, “a single significant act can land you in trouble,” he told reporters.
Due credit to the ACLU of Maryland, which called out this dangerous venture in speech regulation:
Toni Holness, the group’s public policy director, said in February that the bill fails to adequately define what constitutes a “true threat.”
Holness also was concerned about other words in the bill that had not been defined: encourage, provoke, sexual information, intimidating, tormenting.
“There’s way too much prosecutorial discretion in these terms that are not defined,” she said.
I criticized the bill in February and noted language from Zirkin suggesting that the Court of Appeals, as distinct from the legislature, would sort out its constitutionality. Before that, I criticized the 2015 law as itself going too far (more). DePuyt reports that Zirkin may approach U.S. Rep. Jamie Raskin (D-Md.) about introducing a similar bill on the federal level. Let’s hope Raskin says no to that bad idea. [cross-posted from Free State Notes; see also earlier]
Related: an Ohio student has been arrested and faces expulsion over a Twitter account on which he made vicious comments about female classmates; whatever view the law takes of the prospective expulsion of 18-year-old Mehros Nassersharifi by Perrysburg High School, his arrest, on charges of telecommunications harassment, may overstep the First Amendment [NBC24, Hans Bader, Eugene Volokh (reworded to reflect fuller accounts which make clear that the student’s offensive speech went further than simply “rating” of classmates)]
- 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.