No preferred Lies

by Peter Morin on February 25, 2008

Elaine Joyce is a highly competitive female amateur golfer who wants to play with the guys. But she was barred from playing with her father in a Men’s Member-Member tournament. This has left her “ostracized, marginalized, humiliated, embarrassed and denounced,” according to her federal lawsuit.

But wait:

Joyce said she began to feel hostility after she filed the state discrimination complaint in July. One Saturday, after a match-play club championship, she walked into the clubhouse after the first round.

“There were 20 to 25 guys in there,” she said. “And as soon I walked in the door, everything stopped. Silence. ‘There she is. That’s the woman. That’s the problem.’ Stupid stuff like that.”

Joyce compared the experience to her fight to play with the Forty Thieves. After the town acted in that case, it took 18 months for her to be admitted as a member. Joyce said some members of the group were appalled and let her know it. One said he would play only if she played naked. Others walked off the course when paired with her. Some refused to speak to her during rounds.

(NYT, Feb. 19)

I’d prefer to play with a single digit lady than a 20+ old guy. But can I still tell my off-color jokes?

{ 7 comments }

1 Hans Bader 02.25.08 at 11:59 am

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.”

2 wavemaker 02.25.08 at 12:10 pm

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!

3 Charlie B 02.25.08 at 12:37 pm

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

4 Richard Nieporent 02.25.08 at 1:18 pm

It appears that the NY Times is at it again.

5 Hans Bader 02.25.08 at 1:29 pm

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).

6 Tex Mex 02.25.08 at 1:59 pm

“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!

7 wavemaker 02.25.08 at 2:33 pm

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

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