Overlawyered: Chronicling The High Cost Of Our Legal System

Posts Tagged ‘harassment law’

Virginia Postrel (and Catherine Deneuve) on harassment law

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)]

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Claire Berlinski on #MeToo

Veteran journalist Claire Berlinski has a contrarian warning regarding the #MeToo momentum on sexual harassment and assault: “Revolutions against real injustice have a tendency, however, to descend into paroxysms of vengeance that descend upon guilty and innocent alike. We’re getting too close.” [The American Interest] Related, Emily Yoffe on the workplace and the Title IX example [Politico]

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Weinstein’s investigations — and settlements

Harvey Weinstein, assisted by the law firm of celebrated attorney David Boies, “hired private investigators, including ex-Mossad agents, to track actresses and journalists.” At least one agent used false names and identities to insinuate herself into accusers’ and journalists’ circles. “Techniques like the ones used by the agencies on Weinstein’s behalf are almost always kept secret, and, because such relationships are often run through law firms, the investigations are theoretically protected by attorney-client privilege, which could prevent them from being disclosed in court.” [Ronan Farrow, The New Yorker]

Would it help to abolish confidentiality in settlements, as some urge? “California State Sen. Connie Leyva… said she plans to introduce a bill next year to prohibit nondisclosure agreements in financial settlements that arise from sexual harassment, assault and discrimination cases. The rule would apply to public and private employers, she said.” [Danielle Paquette, Washington Post “WonkBlog”] “Getting rid of NDAs reduces accusers’ bargaining power so they end up with lower money settlements or perhaps no settlements,” notes HLS Prof. Jeannie Suk Gersen on Twitter and at more length in The New Yorker. Might that impair their chance of getting a private lawyer interested in their case in the first place? “[We would be choosing] to impair the ability of private parties to resolve a dispute in favor of the public interest.” [Scott Greenfield]

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“Ohio political commentators sue over online harassment ban”

The Ohio legislature last summer unanimously enacted, and Gov. John Kasich signed, a law prohibiting “knowingly posting text or audio statements or images on a website ‘for the purpose of abusing… or harassing another person.'” Now plaintiffs of several political stripes have joined in a legal challenge alleging that they or their organizations “‘routinely engage’ in protected speech that ‘may be considered provocative'” and that the law is so vaguely and broadly worded as to subject them to “a credible risk of prosecution.” The suit was initiated by UCLA law professor Eugene Volokh with assistance from his First Amendment Amicus Brief Clinic. [AP/WHIO]

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Third Circuit: neighbors who criticized condo residents over emotional support dogs must face civil rights suit

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.

More: Hans Bader, Scott Greenfield, and Eric Goldman, who got to the case before either of us.

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Workplace roundup

  • Following election results, lawprofs’ idea of persuading SCOTUS to kill state right-to-work laws is looking kinda dead [James Sherk, National Review] Sixth Circuit panel, reversing decision below, says law authorizes Kentucky counties to enact county-wide right-to-work statutes [Lexington Herald-Leader]
  • “Congressional Budget Office: Canceling overtime rule would boost family earnings” [Sean Higgins, Washington Examiner]
  • “Another Lesson from Bastiat: So-Called Employment Protection Legislation Is Bad News for Workers” [Daniel Mitchell, Cato citing NBER working paper by Gilbert Cette, Jimmy Lopez, and Jacques Mairesse]
  • Claim: lawmakers can “give” private employees paid parental leave and “there’s no added cost to employers” [Kate Ryan, WTOP citing views of Montgomery County, Maryland council member Tom Hucker]
  • All California janitors must now take training against sexual harassment, on rationale of preventing rape [L.A. Times]
  • A “complicated, highly regulated industry”: “Why Are Companies Abandoning On-Site Day Care?” [Rebecca Greenfield, Bloomberg] And: “Childcare costs skyrocket after minimum wage hike passes” [Alyssa Donovan, KXLY; Spokane, Wash.]

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Pronoun prescription and co-workers’ rights

We earlier this year noted the New York City Human Rights Commission guidance directing that businesses may be fined if they do not use customers’ desired pronouns in relation to questions of gender, including preferred usages such as “ze” and “hir.” Now Eugene Volokh, who wrote about the earlier story, points out a recent Oregon settlement in which pronoun issues (the employee prefers to be called “they”) appeared to play an important part:

The school district agreed to settle the claim for $60,000 “as compensation for actual damages, emotional distress and attorney fees,” and with the district promising to “develop official guidance documents for administrators/staff that address working with transgender staff”; the documents, to be developed together with “TransActive and the District equity team,” will address, among other things, “pronoun usage.” “[V]iolations of the guidance will be grounds for discipline.”

But it is not at all clear, as Volokh notes, that it is respectful of co-workers’ rights to require them on pain of official discipline to employ “highly conspicuous, nonstandard usage.” Should instances of not doing so be defined as “harassment” or “discrimination,” they can bring with them serious legal consequences. Public employers such as school districts do have some legitimate managerial interests which can call for, e.g., standardizing forms of address in their workplace. On the other hand, novel pronoun coinages relating to gender are often praised as a way “to convey an idea about language and how language should be” — put more sharply, to convey particular ideological stances about issues of gender identity. We already know that under current interpretations of First Amendment law, government cannot require ordinary non-political employees on pain of dismissal to affirm propositions such as “Live Free Or Die” or the Pledge of Allegiance. A similar principle might extend — or? — to rules exacting affirmative ideological avowals of other sorts. More: Hans Bader, CEI.

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Schools roundup

  • California appeals court says state’s teacher tenure law doesn’t violate Equal Protection Clause, similar suits pending in NY, Minn. [ABA Journal, Neal McCluskey/Cato, earlier on Vergara case]
  • Maryland to local school district: no, families can’t opt out from standardized tests, we might lose federal funds [Jeremy Bauer-Wolf, Frederick News-Post]
  • Teachers fearful as disorder spreads in St. Paul, Minn. schools [Joanne Jacobs, background on feds’ role]
  • Somerset County, N.J.: “It’s ‘harassment’ for a sixth-grader to criticize vegetarianism to a vegetarian classmate” [Eugene Volokh]
  • UK agency reverses decision to downgrade rating of pre-school for not teaching cultural diversity [Guardian]
  • Schools have rules, but only up to a point: “NY moves to allow illegal immigrants to teach in public schools” [Malia Zimmerman, Fox News]

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