Highly recommended: David Bernstein’s new book You Can’t Say That!: The Growing Threat to Civil Liberties from Antidiscrimination Laws. David, who is a professor of law at George Mason and a contributor to the Volokh Conspiracy (and has collaborated with us in the past on a number of projects), does a great job of documenting a theme dear to our hearts, namely the persistent clash between harassment law (and antidiscrimination law more generally) and freedom of speech, conscience and personal association. The book seems to be doing deservedly well on Amazon and can be purchased here (& see Dec. 7).
Posts Tagged ‘harassment law’
“Doctors avoid close contact; fear threat of impropriety”
“The B.C. College of Physicians and Surgeons says some doctors are reluctant to perform breast and genital examinations because they are worried patients will accuse them of impropriety. ‘Unfortunately, the fear of becoming the subject of a patient complaint has caused some to become reluctant to perform necessary breast and genital examinations, to the obvious detriment of the patient,’ the college says in its annual report.” Some evidence indicates that rates of invasive cervical cancer may be markedly higher among women from ethnic groups with a high cultural aversion to pelvic exams. “Although less than 25 per cent of complaints result in formal disciplinary proceedings and penalties, the college has observed the mere threat of an accusation has meant ‘a significant number of women in this province are not receiving proactive preventative screening for breast and gynecological diseases.'” (Pamela Fayerman, CanWest/Calgary Herald, Aug. 27).
Update: Ness Motley to fight misconduct verdict
Not unexpectedly, the billionaire tobacco/ asbestos plaintiff’s law firm says it will contest a jury’s $36 million verdict, including $28 million in punitive damages, for having allegedly placed its own financial interests ahead of those of its clients in a class action settlement over a Canadian telemarketing swindle (see Jul. 7). The verdict is said to be the second-largest against a law firm in the past ten years: “‘Anytime you see an award of that magnitude, you can expect the jury senses lawyer greed, and that angers them,’ said Joe McMonigle, a San Francisco attorney and former chairman of the American Bar Association’s committee on lawyers’ professional liability.” (Frank Norton, “Reputations hinge on Ness Motley appeal”, Charleston Post & Courier, Aug. 3; “Lowcountry law firm contesting verdict in legal ethics case”, AP/The State (Columbia, S.C.), Aug. 4).
Meanwhile, two lawsuits by former Ness Motley attorneys are painting an unattractive picture of life inside the giant firm, which is now known as Motley Rice (more than two dozen attorneys and employees quit and formed a second firm, Richardson, Patrick, Westbrook and Brickman.) In one case, dissident attorneys have asked a judge to ground a $13 million Dassault Falcon used by star lawyers Ron Motley and Joe Rice; in another, a female attorney charges a pattern of sexual harassment and misconduct at the firm, which it strenuously denies (Tony Barthelme, “Court filings shed light on Ness Motley schism”, Charleston Post & Courier, Aug. 22).
“Area employers urged to forbid foul language”
Employers who allow swearing and sexual references in the workplace could find themselves in, well, ‘blankety-blank’ trouble with the federal government. Policies prohibiting foul language and swearing were recommended by leaders of the U.S. Equal Employment Opportunity Commission?s district office in Cleveland who spoke to 150 human resources managers, union representatives, and legal aid workers at a seminar in downtown Toledo yesterday.” (Toledo Blade, Jul. 31)(via Freedom News)(& welcome Volokh/David Bernstein and Dean Esmay readers)
Private club liable for sexist speech
The New Hampshire Supreme Court has upheld the decision of the state Commission on Human Rights to assess $64,000 plus attorneys’ fees against the Franklin Lodge of Elks for committing sex discrimination against four applicants including “derogatory and anti-female comments” by club members during discussions over whether to admit the applicants. “Of course, when clubs are held legally liable for their members’ speech, they will naturally be forced to suppress such speech, to avoid this liability.” (Eugene Volokh, “Club Codes”, National Review Online, Jun. 25.)
EU: “Ban sought on sexual stereotyping”
According to EUObserver.com, “Brussels is said to be preparing new legislation to monitor sex discrimination outside the workplace. The proposal could lead to a ban on programmes and advertisements that stereotype women or men.” The idea is to ban “images of men and women affecting human dignity and decency”. At the same time, “safeguards on freedom of expression are thought to be included” — very comforting. In the spring of 2002 it was reported that Norway’s Ombudsman for Gender Equality, whose duties include monitoring sexism in toy ads, was proposing to ban a particular toy ad which referred to boys as “tough”. More: Daily Telegraph.
Archived harassment law items, pre-July 2003
“‘Prosecutor had ordeal as defendant’“, May 14, 2003.
Sex abuse charges, 2003: “‘Sex, God and Greed’“, May 28; “‘No Crueler Tyrannies’” (Dorothy Rabinowitz), May 8 (& Apr. 17, 2001). 2002: “‘Reno owes the public answers’“, May 7; “Updates” (rape shield laws), Jan. 9-10 (& more on Jovanovic case: Dec. 23-26, 1999). 2001: “Sued if you do dept.: co-worker’s claim of rape“, Nov. 7-8; “‘Teen sex offenders face years of stigma’“, Nov. 5; “‘Crying wolf’“, Oct. 30; “‘Proposed Law Would Consider Alcohol as Date-Rape Drug’” (Wisc.), Oct. 3-4. 2000: “Federal commerce power genuinely limited, Supreme Court rules” (strikes down VAWA’s lawsuit provision), May 16 (and see Wendy Kaminer, Feb. 24); “Updating Jane Austen“, Apr. 28-30; “Court rejects ‘telephone sex slave’ charge“, Apr. 24; “Philadelphia: feminist groups to be consulted on whether to classify incidents as rape“, Mar. 27 (and see Cathy Young, April 6); 1999: “Okay, we admit it: we admire these lawyers” (Wenatchee defenders), Sept. 4-6; “Personal hell“, Jul. 31-Aug. 1.
“Employers liable for not filtering raunchy spam?“, Apr. 10-13, 2003.
Watch those emails: “Employers liable for not filtering raunchy spam?“, Apr. 10-13, 2003; “Why we lose workplace privacy“, Aug. 9, 2001; “Watch those fwds” (Dow Chemical fires employees for email use), Aug. 21-22, 2000; “Oops: D.A.’s and judge’s fwding of sex pics deemed ‘unfortunate event’“, April 11; “Harassment-law roundup” (email-shredding software), Feb. 19-21; “Emails that ended 20 Times careers“, Feb. 8-9, 2000; “Please — there are terminals present” (Bloomberg censors its terminals), July 30, 1999.
“After failed workplace romance, a $1.3 million bill“, Feb. 6-9, 2003.
“Incoherence of sexual harassment law“, Oct. 15, 2002.
Sued either way: “Investigate, but gently“, Sept. 25-26, 2002; “‘Ex-Teach’s Suit: Kids Abused Me’“, Jun. 26-27, 2002; “Sued if you do dept.: co-worker’s claim of rape“, Nov. 7-8, 2001; “EEOC: unfiltered computers ‘harass’ librarians“, Jun. 4, 2001; “Customer offense” (supermarket bagger with Tourette’s), Jun. 9-11, 2000; “Columnist-fest” (Mona Charen on Mar. 10-12 story, below), Apr. 6; “Accused of harassment; wins $2 million from employer“, Mar. 10-12 (& update Jun. 2, 2003: award reversed); “‘Judgment reversed in Seinfeld case’“, Feb. 26-27, 2000; “Employment-law retaliation: real frogs from ‘totally bogus’ gardens“, Sept. 29, 1999.
“Banish those desk photos of spouse at beach“, Aug. 29-Sept. 2, 2002.
“Clipboard-throwing manager = $30 million clipping for grocery chain“, Apr. 19-21, 2002 (& update Jul. 26-28: damages cut to $8 million); “‘$3 million awarded in harassment’” (Illinois police department), Dec. 19, 2001; “Fieger’s firecrackers frequently fizzle” ($20 million harassment verdict against Chrysler), May 31, 2001; “The stuffed-grape-leaf standard” (feminist litigator asserts that $300K isn’t that much money), August 14-15, 1999.
“‘Surgeon halts operation over foreign nurses’ poor English’” (U.K.: he’s then threatened with disciplinary action for racism), Jul. 25, 2002.
“Catharine MacKinnon, call your office“, May 16, 2002.
“An eggshell psyche at U.Va. Law“, Apr. 8-9, 2002.
“Jail for schoolyard taunts?“, Feb. 27-28, 2002; “‘Boy faces jail for slapping girl’s bottom’“, Jan. 5-7, 2001; “Annals of zero tolerance” (six-year-old’s “sexual harassment”), May 22, 2000.
“European workplace notes” (UK: harassment of dyslexic), Feb. 25-26, 2002.
“Firehouse blues” (girly mags, Alaska), Feb. 20-21, 2002.
“‘Woman Wins Verdict, but no Money, Against Seagal’“, Jan. 4-6, 2002.
Office dating, “love contracts”: “Love contracts“, Dec. 10, 2001; “Ask the experts (if that’ll help)“, Oct. 19, 2000; “Ministry of love-discouragement“, May 3; “‘Love contracts’ spreading to U.K.“, Dec. 31, 1999-Jan. 2, 2000; “Weekend reading: evergreens” (“love contract” for office romances), Dec. 3-5, 1999.
“Employee’s right to jubilate over Sept. 11 attack“, Oct. 9, 2001.
“‘Lawsuit demands AOL stop anti-Islamic chat’“, Sept. 3, 2001.
“‘We often turn irresponsibility into legal actions against others’” (Robyn Blumner on U. of South Fla. art student harassment case), Aug. 13-14, 2001.
“Chandra, Monica, and sex-harass law“, July 27-29, 2001.
“Spoof memo draws EEOC probe“, June 26, 2001.
“‘Hearsay harassment’ not actionable“, June 12, 2001.
“EEOC: unfiltered computers ‘harass’ librarians“, June 4, 2001 (& see “Columnist-fest” (Wendy McElroy), June 22-24.
“Mistletoe dangerous even when absent“, April 18, 2001.
“‘2000’s Ten Wackiest Employment Lawsuits’” (too much sex talk in sex shop), April 13-15, 2001.
“Appeals panel: schools’ harassment rule unconstitutional“, Feb. 27, 2001; “Weekend reading” (Supreme Court’s invention of Title IX harassment law), August 21-22, 1999.
Business climate: “Why we lose workplace privacy“, Aug. 9, 2001; “Ask the experts (if that’ll help)“, Oct. 19, 2000; “The scarlet %+#?*^)&!” (companies cut clients loose for profane language), March 7, 2000; “‘Personally agree with’ harassment policy — or you’re out the door“, Sept. 22, 1999; “EEOC encourages anonymous harassment complaints“, Sept. 3, 1999.
Hate speech, hate crime laws: see free speech and media law page.
“Columnist-fest” (Sarah McCarthy on Paula Jones case), Nov. 14, 2000.
“Don’t meet with her alone“, Nov. 1, 2000.
“Ask the experts (if that’ll help)“, Oct. 19, 2000.
“White House pastry chef harassment suit“, Sept. 18, 2000.
“Harassment law roundup” (Confederate flags on employee cars, Jeffrey Rosen book, Avis v. Aguilar, do-as-we-say case), Sept. 11, 2000.
“Embarrassing Lawsuit Hall of Fame” (Mass. agency finds flatulence not harassing), Aug. 14, 2000.
“From the U.K.: watch your language” (college, job bureau restrict use of “lady”, “hardworking”), June 13, 2000.
“Victim of the century?” (principal collects disability benefits for sexual compulsion), June 2-4, 2000; “Doctor sues insurer, claims sex addiction“, Oct. 13, 1999.
“What the French think of American harassment law“, May 25, 2000.
“The four rules of sexual harassment controversies” (Claudia Kennedy case; female-on-male touching case; spanking initiation), May 15, 2000.
“Comment of the day“, May 5-7, 2000; “Recommended reading” (Roland White in London Times on chill to office banter), Jan. 25, 2000.
“Harassment-law roundup” (bathroom graffiti; Boston bar owner’s insensitive decorations; pin-ups and porn in police station), May 4, 2000.
“Book feature: ‘The Kinder, Gentler Military’“, April 3, 2000.
“The shame of the ACLU” (Aguilar v. Avis: ACLU intervenes on anti- free-speech side), Sept. 7, 1999; “Speech police go after opinion articles, editorial cartoons“, August 28-29, 1999.
“Harassment-law roundup” (Internet startups vulnerable), May 4, 2000; “Dot-coms as perfect defendants“, Jan. 17; “Harassment-law roundup” (Juno case), Feb. 19-21, 2000.
“Oops! Didn’t mean nothing by that, ma’am” (“Hello, good looking” directed at harassment trainer), Dec. 21, 1999.
“Suppression of conversation vs. improvement of conversation“, Nov. 12, 1999 (excerpts from Joan Kennedy Taylor book); “Risks of harm“, Nov. 13-14, 1999; “Harassment-law roundup” (Taylor book discussed), Feb. 19-21, 2000.
“Courts actually begin to define ‘harassment’; activists in shock“, August 6, 1999.
“Please — there are terminals present” (South Park on sexual harassment), July 30, 1999.
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Articles by Overlawyered.com editor Walter Olson:
“Title IX’s Invisible Ink” (Supreme Court invents right to sue schools over student-on-student harassment), Reason, August/September 1999.
“A Legacy of Dirty Laundry” (brief contribution to symposium on harassment law), The Women’s Quarterly, Winter 1999.
“Have the Harassment Rules Changed?“, Wall Street Journal, April 6, 1998 (judge’s dismissal of Paula Jones lawsuit).
“Punch the Clock, Sue the Boss“, New York Times, March 20, 1998.
“Shut Up, They Explained” (“zero-tolerance”), Reason, June 1997.
“The Long Arm of Harassment Law“, New York Times, July 7, 1996.
?When Sensitivity Training Is the Law? (Connecticut law requires training of managers), Wall Street Journal, January 20, 1993.
In addition, The Excuse Factory (1997) includes two chapters on harassment law, namely chapter 4 (“Fear of Flirting”) and chapter 14 (“Workplace Cleansing”). Neither is online.
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Other resources: Websites “Freedom of Speech vs. Workplace Harassment Law” (highly informative site maintained by Prof. Eugene Volokh, UCLA Law School) Organizations
The shelf of books critical of the overreach of harassment law got at least three important additions in 1999. Daphne Patai of the University of Massachusetts, known already as a co-author of Professing Feminism: Cautionary Tales From the Strange World of Women’s Studies, published Heterophobia: Sexual Harassment and the Future of Feminism. Cathy Young, columnist for the Detroit News, published Ceasefire: Why Women and Men Must Join Forces to Achieve True Equality. And Joan Kennedy Taylor, associated with the Cato Institute, published What to Do When You Don’t Want to Call the Cops: Or a Non-Adversarial Approach to Sexual Harassment. (Also see our editor’s 1997 contribution, The Excuse Factory.) |