Being Sued For Expressing An Opionin In the Big Lab
Several years ago me and a fellow coworker got into an argument about the implications homosexuality being determined biologically. Eventually a fellow coworker asked us to stop discussing because the content was making her uncomfortable. We complied immediately and went back to work.
A recent ruling at the federal level has decided that this woman could sue not just Duke but also me for creating a hostile work environment. The Volokh Conspiracy has the details:
Last week, the federal district judge in this case (Doe v. City of New York & Bruce Tefft) held that plaintiff’s case may go forward — that, if the facts are as the plaintiff alleges them to be, Tefft can be financially liable based on the anti-Islam/anti-Muslim/anti-Arab speech. Such speech could be, under the relevant legal standard, be “severe or pervasive” enough to create a “hostile, abusive, or offensive work environment” based on religion and ethnicity for the plaintiff and for a reasonable person. And the damages in such cases could easily go into the hundreds of thousands of dollars or more.
This, I think, well illustrates what I’ve been arguing for 15 years: In many (though certainly not all) contexts, hostile environment harassment law violates the First Amendment. Here a court is saying that speech can lead to massive liability because of the viewpoint that it expresses, and the offensive environment that the viewpoint causes. The speech doesn’t fit within any exception to First Amendment protection — for instance, it’s not “fighting words” (a narrow exception that’s limited to one-to-one speech likely to cause a fight, and that generally excludes political advocacy conveyed to a broad group of listeners), nor is it incitement to lawless action. The government isn’t just acting as employer to restrict speech by its employees (an area in which it has a freer hand); the court is enforcing a law created by the government acting as sovereign, a law that equally applies to private employers.
One of the reasons why I point this out is because me and Darwin have had countless arguments in this room and I’m sure some of the people were offended by the things we said. According to this new ruling, those people now have a legal avenue in which they could sue us for expressing our opinion to each other in a work place environment.
This is particularly ironic because many of me and Darwin’s discussion focused on whether the state should give additional rights to minorities because of their ‘status’. Obviously Darwin argued that minorities should be granted extra-constitutional rights. Well it seems in part the federal judge’s rationale for allowing people to sue those that create a hostile work environment was to protect minorities from being harassed by fellow coworkers. So in a roundabout way Darwin can now be sued for arguing in favor of granting extra-constitutional rights to minorities provide those minorities find that kind argumentation a harmful work environment.
Good work Darwin. Dismantling the first amendment one extra-constitutional minority right at a time.
February 13th, 2008 at 5:43 pm
I argues specifically that children in schools should be protected because they were legally required to be there. I never claimed that those restrictions should apply to adults in the real world, or that punitive measures should be enacted.
Note that ANYONE can sue ANYONE for ANYTHING; they just have to be able to show damages. It’s not illegal to say these things in the workplace, it’s just that if they do demonstrable harm (and I believe it has to be monetary harm, ie ‘psychological damages’ only apply if they caused you to seek expensive therapy or lose income), so I doubt anyone could make a strong case in reference to any of our discussions (since to my knowledge no one quit, was fired, or saw a psychiatrist because of them).
February 13th, 2008 at 6:19 pm
You should read over the link. Given what this law professor says, its simply not the case that you can sue anyone for anything. Before a trial can proceed it has to be approved. Its here where this particular ruling was made.
Had someone from our lab seen a psychiatrist because of our discussion you would be okay with them suing you for damages?
February 15th, 2008 at 9:45 am
My understanding, which is consistent with the article I think, is still that anyone can sue anyone for anything, but a judge then has to decide whether it’s worth going to trial. I guess it’s true that there are precedents that make this type of case more viable.
I wouldn’t be ok with it because none of our conversations were anything that anyone reasonable should need to see a psychologist about, none of them were ever directed at any of our co-workers specifically, and we would have stopped any conversations/topics anyone told us they were uncomfortable with. The situation in this article was clearly very different, most court rulings have clauses about how ‘a reasonable person’ would have reacted in them, so I don’t think a crazy person who actually was upset enough to see a psychologist but never said anything to us about it could actually get anything, and we weren’t going around to our colleagues and saying that one person we worked with specifically couldn’t be trusted and had no place working there based solely on race. You really are trying to make a slippery slope argument here, but you’ve alwasy dismissed MY slippery slope arguements for things like torture and wire tapping, and honestly I think the distance between secretly detaining foreigners and secretly detaining US citizens is much smaller than the distance between what the guy in this article was doing and our discussion in the Big lab.
Also, I’m not sure that there’s a real First Ammendment argument to make here, since this was settled in civil (rather than judicial) court. No one has said that the guy is not allowed to say these types of things. However, he has created a hostile work environment which will probably cost the victim a huge amount of income over his lifetime, either from lost promotion opportunities or if he has to quit, and that’s something that you can sue for REGARDLESS of how it was achieved. It’s kind of like claiming that a boss saying ’sleep with me or I’ll fire you’ is protected speech under the First Ammendment: yes, he CAN say that, but what he’s actually DOING if he means it is actionable. Copyright infringement is similar; you’re not being sued for saying the words of the stolen material, you’re being sued for the economic damage that act causes to the copyright holder.
Also note that this guy was a government employee. Since we consumers don’t have the option of not buying government services in protest of them hiring racist people like this defendant, it seems like you should be more ok with government employees having this type of recourse than with employees in private companies having them. Does that change your feeling about it at all?
February 15th, 2008 at 10:28 am
This quote:
Strongly implies that in order for the case to proceed, a federal judge had to approve it was okay to seek damages against this defendant. Prior to this ruling, it would be a fair assumption to say that not anyone can sue anybody for anything. Since prior to this ruling their was some question as to whether this plaintiff could sue this defendant.
Stated otherwise, whats the point of this ruling if the plaintiff could sue the defendant for damages?
Now that I’m thinking about it, why do some republicans argue for tort reform to protect doctors from being excessive sued for malpractice. The statement ‘anyone can sue anybody for anything’ just doesn’t ring true to me.
As I was reading the summary I came across this:
February 15th, 2008 at 10:51 am
This ruling states specifically that the Plaintiff may sue the Defendant for damages caused by the Defendant exercising his first amendment right. It states:
I have no problem with the rationale for denying first amendment rights protection given (whats seems to be liberal) case precedent. However, it’s in fact the case precedent that bothers me. There is something fundamentally wrong about giving extra-constitutional rights to some groups to ‘remedy racial discrimination’ . I see no reason why some citizens should enjoy extra constitutional rights that seek to censor other citizens from expressing their first amendment rights when that expression can be construed as harrasment.
According to the rationale I quote, and the one you seem to support, only harassment of certain kind is constrained. That harassment must fall under one of these categories ‘religion, race, or national origin’. Lets say in the big lab I were to harass a researcher for months on end about them liking the color brown. If they were to sue me for damages, I could argue that my first amendment rights protects me from being sued for expressing an anti-liking the color brown sentiment. In the case we are currently discussing, the rationale used to allow the case seeking damages to proceed, would not work. Only groups that represent race, origin, or religion. Why do groups of race, religion and origin enjoy protections from expression of first amendment while other groups do not? What justification can one give for unequal application of the law?
Why are you okay with grant extra-constitutional rights to some citizens?
February 17th, 2008 at 2:56 am
Ok, aparently it’s not called ’sueing’ until they issue that notice; I guess what I meant to say, now that you’ve explained the process, is ‘anyone can bring suit against anyone for any reason’, and then a judge has to decide whether or not it’s something they can legitimately sue for.
As for the law, I think you’re reading a LOT into a few ambiguously worded sentences, especially when they’re removed from their context and when there’s billions of pages of similar legal jargon from millions of other rulings.
Instead of go through each point, let me just state how I think things should work, say that I think this is much closer to how the legal system actually DOES work than you’re trying to imply, and agree that anywhere where the actual legal system deviates from this methodology, I disagree with it:
I think that everyone should have the exact same rights to seek reperations if any form of harrassment has caused them demonstrable and unavoidable harm. No one should be able to sue just because they overheard something they didn’t like once or twice, rather the harrassment must be specific enough to affect their job (either forcing them to quit or demolishing their hopes for advancement), or extreme enough to cause demonstrable emotional/mental damage (after they make appropriate efforts to avoid that damage themselves, ie asking the people talking to stop, talking to the boss about it, etc).
Now, this means that when a minority gets harrassed, there’s a good chance it will be by a racist; when a woman gets harrassed, there’s a good chance it will be by a misogynist or a sexual predator; when a gay person gets harrassed, there’s a good chance it will be by a homphobe; when a fat person or smoker gets harrassed, there’s a good chance it will be by a health freak, and etc. If you did harrass someone about their color sense to the same extent the plaintiff in this article was harrassed, they should have exactly the same rights to sue, under exactly the same statutes. Of course, this particle scenario is very unlikely to ever happen, which is why you never read about it.
So yes, you’re more likely to read news stories about minorities, gays, and women sueing for harrassment, but I don’t think you can really characterize the fact that these groups are more likely to get harrassed in an extreme and damaging way as ‘extra rights’.