- Lawprofs vs. speech: new book by Prof. Danielle Citron (U. of Maryland) urges stepped-up legal penalties for online expression as “harassment” [“Hate Crimes in Cyberspace,” Harvard University Press]
- European high court’s Google-unindexing folly: “The truth is, you’ve never had the ‘right to be forgotten'” [Jack Shafer; example, WSJ]
- Feds’ National Science Foundation spending nearly $1 million to create online database monitoring “suspicious memes”, “false and misleading ideas” on Twitter [Free Beacon]
- Flap over fantasy-art DMCA takedown demand seems to be over, but we can still enjoy Ken’s take [Popehat] More Popehat highlights: 7th Circuit affirms sanctions vs. Team Prenda of copyright troll fame; multi-level marketer threatens blogger; controversial doctor resorts “to threats and legal analysis that are at least as innovative as his cancer theories“; “In 2014, minimal legal competence requires an attorney to anticipate and understand the Streisand Effect“;
- When occupational licensure laws stifle speech [Dana Berliner (IJ), NYT Room for Debate]
- Inside a deposition in the Shirley Sherrod defamation lawsuit [J. Christian Adams, earlier here, etc.] Write if you dare about Michael Mann, just hope he doesn’t sue you over it [Trevor Burrus, earlier here, etc.]
- U.S. Civil Rights Commission member Michael Yaki argues for campus speech codes [Hans Bader, Eugene Volokh] Per EEOC: “Illegal ‘hostile work environment’ harassment for co-workers to wear Confederate flag T-shirts” [Volokh; also]
- “The tie that binds public employee unions and Wall Street” [Daniel DiSalvo] “Unions Manipulate New York City’s Public Pension Funds To Punish Their Enemies” [NYT via Jim Epstein, Reason]
- Illinois latest state to pass “ban the box” law restricting employers’ inquiries on criminal records [Workplace Prof]
- Two ex-football pros file suit claiming union conspired with owners on concussions [Bloomberg]
- Average Illinois public retiree’s pension rapidly narrowing gap with average salary of worker still on job [Jake Griffin Daily Herald via Reboot Illinois] By 2006, 1,600 California prison guards were making $110K+, plus more on tendency of state/local government pay to outrun private [Lee Ohanian via Tyler Cowen]
- Great moments in employment law: Seventh Circuit says other employees’ having sex on complainant’s desk not hostile work environment when not targeted at gender [Eric B. Meyer]
- Next step signaled in SEIU fast food protest campaign: unlawful property occupations [AP, Chicago Tribune, arrests in May]
- Trial lawyer win: Obama federal-contractor fiat will forbid pre-dispute agreements to submit bias claims to binding arbitration [AP, AAJ jubilates]
In not just one recent case, but two:
* “During a meeting about commissions, minimum wage, and employee breaks [at a Yuma, Ariz. car dealership], an employee lost his temper, angrily calling his supervisors words such as [obscenities omitted]. He also stood up, shoved his chair aside, and told them they would regret it if they fired him. Unsurprisingly, that tirade resulted in the employee’s termination. Astoundingly, in Plaza Auto Center (5/28/14), the NLRB concluded that the termination was an unlawful violation of the employee’s rights to engage in the protected concerted activity.” [Jon Hyman, Ohio Employer’s Law Blog; Brennan Bolt, Labor Relations Today]
* “Starbucks cannot fire a union activist employee who cursed at a manager in front of customers, the National Labor Relations Board has ruled for the second time. Joseph Agins was active in trying to unionize four Manhattan Starbucks coffee shops between 2004 and 2007.” His repeated imprecations, sometimes in the presence of customers, included “this is [BS],” “do everything your damn self,” “about damn time” when the manager arrived to help, and “go … yourself”. A protected pattern of behavior under federal labor law, the NLRB ruled. “The board ordered Starbucks to offer Agins his old job or a substantially equivalent position, compensate him for any loss of earnings and other benefits, and remove from its files any references to the unlawful firing.” [Seattle Post-Intelligencer]
Compare the separately developed field of “hostile-environment” law, in which the employer may be held liable for years’ worth of back pay if it does not separate from the workplace an employee who repeatedly confronts a co-worker with belligerent and profane abuse (& Scott Greenfield).
When is it considered a success to generate more complaints against one’s own organization? When you’re a newly assembled Title IX team, in this case installed at the University of North Carolina following pressure from federal regulators and students. [Harry Painter, Pope Center] Our previous coverage of the Department of Education/Department of Justice “blueprint” on campus harassment and sexual misconduct allegations is here.
Caleb Brown interviews me for Cato on the politics and policy of employment discrimination laws. I’ve also done interviews with Voice of America (updated: article with video here, at 1:45; higher-def video here), St. Louis’s KMOX, Mark Reardon show and Bay Area public radio station KQED with Michael Krasny (includes audio link), where I had a chance to promote my much-missed friend Joan Kennedy Taylor’s excellent Cato book on workplace harassment. My Cato post on the subject of Friday is here and reactions here. More press coverage: Naureen Khan, Al Jazeera America (symbolism a poor reason for or against bill); Nick O’Malley, Sydney Morning Herald (my views contrasted with Andrew Sullivan’s), Robin Shea, Employment and Labor Insider, Deseret News (opinion roundup including USA Today’s), Tim Carney/Washington Examiner.
EEOC v. Boh Brothers is a new Fifth Circuit en banc decision allowing liability on a theory of hostile workplace environment sex discrimination arising from crude and aggressive locker-room banter in an all-male workplace (on facts differing somewhat from those in Oncale v. Sundowner, the 1998 Supreme Court case countenancing such liability). The dissent by Judge Edith Jones, p. 46 at footnote 3, cites my “Sentence First, Verdict Afterward,” from the July issue of Commentary magazine, on the federal government’s unhealthy interest lately in developing legal doctrines that pressure private institutions into adopting speech codes aimed at protecting listeners’ sensitivities.
Don’t miss the “Etiquette for Ironworkers” parody legal memo on p. 58, either. How many dissents include a parody legal memo?
Alexandra Petri dissects the new federal campus speech and discipline code [Washington Post]:
Forget history (too much sex there, and such unenlightened attitudes towards women). Forget pretty much anything by the ancient authors, especially the “Iliad.” …
Maybe that guy who replaces all the plots of classic literature with zombies can get a job going through these great books and removing all the allusions to unwelcome conduct of a sexual nature with zombies….
It is vital that campus administrators take sexual assault and sexual harassment seriously. But is diluting the label of sexual harassment really the way to go?
Following a widespread outcry, the Education Department’s Office of Civil Rights appears to be backtracking a bit in its very ambitious “blueprint” which colleges and universities must follow in the name of combating sexual assault. In particular, it now says it does not intend to require universities to punish speech and other conduct that is not objectively offensive, or that is too trivial or transitory to create a “hostile environment” as defined by court precedent. However, it does continue to insist that such behavior is “harassment” and that schools must make it “reportable,” that is, be willing to open grievance and complaint processes to document it. This is really no more acceptable than its first position, for reasons outlined by the Foundation for Individual Rights in Education (FIRE), which has been following the issue. [FIRE, more, Robby Soave]
More: Rob Jenkins in Chronicle of Higher Education on “Purging My Syllabus.”
When the Education Department was created in 1980 (Jimmy Carter’s payment to the National Education Association, the largest teachers union, for its first presidential endorsement), conservatives warned that it would be used for ideological aggression to break state and local schools to the federal saddle. … Most of academia’s leadership is too invertebrate and too soggy with political correctness to fight the OCR-DOJ mischief. But someone will. And it is so patently unconstitutional that it will be swiftly swatted down by the courts.
In a guide to help colleges comply with Title IX, the Education Department has stated that “conduct of a sexual nature” includes many kinds of speech, such as “circulating or showing e-mails or Web sites of a sexual nature,” “displaying or distributing sexually explicit drawings, pictures, or written materials,” and “telling sexual or dirty jokes.” …
The government says the narrower definition of harassment laid down by the courts [i.e., liability only for failing to act against conduct that is “severe” and objectively offensive] applies only in sexual-harassment lawsuits, not in its Title IX investigations or the standard colleges must apply to their students or faculty. Colleges must declare “any unwelcome conduct” to be a reportable offense.
Unlike the 2001 Guidance [from OCR], the “blueprint” requires the broad definition to be adopted verbatim as university policy. …
Here’s why mandating this new distinction [between “hostile environment” and sexual harassment more generally] is important — and why it harms student and faculty rights. By separating “sexual harassment” from “hostile environment” harassment, OCR has also separated “sexual harassment” from the set of evaluative factors it uses to determine whether a hostile environment has been created. These factors include whether the conduct affected a student’s education, whether the conduct was part of a pattern of behavior, the identity of and relationship between the individuals involved, the context of the conduct, and more. By reviewing these and other factors to determine whether conduct created a hostile environment—and was thus sexual harassment—schools were able to separate truly harassing conduct from merely offensive or unwanted speech.
FIRE, Hans Bader, Eugene Volokh and other free speech advocates are sounding the alarm about remarkable and extreme guidelines on university discipline emanating from the Department of Justice Civil Rights Division and Education Department Office of Civil Rights. I’ve got more details at Cato at Liberty. Earlier here, here, etc.