23/10/03

Isn't That Fascism? 

David Bernstein 

TechCentralStation

Jerold Mackenzie worked at Miller Brewing Company for 19 years, eventually achieving executive status and a $95,000 salary. One day, he made the career-ending mistake of recounting the previous night's episode of the sitcom Seinfeld to his coworker Patricia Best.

In the episode, Jerry Seinfeld cannot remember the name of the woman he is dating, but he does recall that she said kids teased her as a child because her name rhymes with a part of the female anatomy. Jerry and his friend George brainstorm, but the best guesses they can come up with are the unlikely "Mulva" and "Gipple." Jerry's girlfriend breaks up with him when she realizes he doesn't know her name. As she leaves him forever, Jerry finally remembers the elusive rhyming name and calls after her, "Delores!"

Mackenzie related the details of this episode to Best, but she told Mackenzie she did not get the joke. To clarify the somewhat off-color punch line, Mackenzie gave her a copy of a dictionary page on which the word "clitoris" was highlighted. Best -- who was apparently known to use salty language at work herself -- complained to Miller Brewing officials of sexual harassment, and Miller Brewing fired Mackenzie for "unacceptable managerial performance." Mackenzie responded with a lawsuit alleging wrongful termination and other wrongs.

At trial, Miller Brewing officials acknowledged that the direct cause of Mackenzie's termination was the Seinfeld incident and the ensuing fear of a sexual harassment lawsuit. The jury awarded Mackenzie $26.6 million, including $1.5 million in punitive damages against Best for interfering with Mackenzie's employment relationship with Miller Brewing. The verdict was later overturned on appeal because Wisconsin law does not have a law banning wrongful termination.

Miller Brewing's firing of Mackenzie may seem like an absurd overreaction, but it was very much consistent with the counsel of employment law experts. They advise employers to enforce a zero tolerance policy for any type of sex-related remarks by employees, especially those made by supervisors or executives like Mackenzie. Consultant Beau Crivello suggests, "A rule of thumb is that if you can't say it or do it in a house of worship or in front of children, then don't say it or do it at work."

Beginning in the late 1970s, feminist legal scholars argued that the ban on employment discrimination against women should include a ban on sexual harassment. Sexual harassment, they argued, includes the act of subjecting women to a "hostile work environment" by exposing them to offensive speech. The speech need not be directed at any individual woman to constitute harassment. For it to qualify as harassment of a woman coworker, it is enough that the speech could reasonably be construed as hostile to women generally.

Further, the determination of whether a hostile environment existed does not depend on whether anyone intended to make any or all of their female coworkers feel unwelcome. An innocently offered comment can as easily be charged with creating a hostile environment as a deliberate slur or threat.

The feminists achieved a great victory when the Supreme Court held in 1986 that an illegal hostile work environment exists when "the workplace is permeated with discriminatory intimidation, ridicule, and insult, . . . that is sufficiently severe or pervasive to alter the conditions of the victim's employment." Thousands of lawsuits of varying degrees of legal merit followed. Legal filings grew exponentially after the attention given to the issue of sexual harassment during the Clarence Thomas-Anita Hill hearings. Government agencies quickly produced pamphlets that urged victims of sexual harassment to file complaints and that often defined "hostile environment" far more broadly than the law justified.

Many employers responded to the growth of hostile environment law by attempting to regulate the potentially offensive speech of their employees. The result was an implicit, but nonetheless chilling, nationwide workplace speech code that banned any speech that could offend women.

There are several reasons for this caution. First, as four Supreme Court justices have noted in a related context, the fuzzy guidance provided by hostile environment precedents simply does not give employers a clear indication of what they must do to remain within the confines of the law. For example, while a single offensive joke will not create liability, some courts have held that a pattern of jokes by different employees can create a hostile environment. The safest route for employers is to ban any banter with sexual connotations, lest the aggregation of speech by different employees constitute a hostile environment. Better to be safe (if silent) than sorry.

Second, and relatedly, the severe and pervasive liability standard is sufficiently vague, good counsel sufficiently expensive, and trial judges and juries sufficiently unpredictable that employers feel compelled to settle even highly dubious claims to avoid the risks and costs of litigation. After all, juries have awarded tens of thousands of dollars to plaintiffs in cases appellate courts later dismissed.

Third, disgruntled employees or former employees can impose large costs on employers without going to the effort and expense of filing a lawsuit, simply by complaining of harassment to the Equal Employment Opportunity Commission. The EEOC is legally required to investigate every complaint of sex discrimination, no matter how weak or unconvincing a complaint seems. Even a trivial complaint can lead to a broad investigation of the underlying claim, costing the employer thousands of dollars in legal fees and lost time. And petty complaints are actually encouraged by official government pronouncements that propagate inaccurate, overbroad definitions of what constitutes illegal sexual harassment. For example, an official U.S. Department of Labor pamphlet states that harassment includes cases in which a coworker "made sexual jokes or said sexual things that you didn't like, so long as the jokes made it hard to work."

Fourth, many states and localities have their own antidiscrimination laws with standards for hostile environment liability that are sometimes significantly broader than the federal law's requirement of severe and pervasive harassment. For example, a New Jersey court held that under state law employees who forwarded one list of crude jokes to their colleagues via e-mail had created an illegal "offensive work environment," even though this act would be unlikely to create liability under federal law.

Hostile environment law has spread well beyond the sex discrimination context, with claims successfully prosecuted for race, religion, and national origin harassment. One court, for example, found that publishing religious articles in a company newsletter and printing Christian-themed verses on company paychecks constituted "harassment" of a Jewish employee. Another court found that an employee who hung in her cubicle pictures of the Ayatollah Khomeini and of Iranian protestors burning an American flag was guilty of national origin harassment against an Iranian-American employee who happened to see the display.

Court rulings and EEOC guidelines suggest that religious harassment includes both a religious employee proselytizing a coworker and a secular employee ridiculing a religious coworker for the latter's beliefs. As in the sex discrimination context, a hostile environment claim for race discrimination and other types of workplace discrimination can arise even when the speech in question was not directed at the plaintiff. For example, the EEOC charged a company with national origin harassment after a Japanese-American employee filed a complaint about the firm's advertising campaign. Some of the company's ads featured images of samurai, kabuki, and sumo wrestling to represent the firm's Japanese competitors. The employee also charged that officials of the company called Japanese competitors "Japs" and "slant-eyes." The case was eventually settled for an undisclosed amount.

Standards for racial and ethnic harassment are at least as vague as they are in the sexual harassment context, which leads to unpredictable jury verdicts. Even highly questionable claims can result in large verdicts, giving employers strong incentives to heavily regulate workplace speech as a preventive measure.

One especially merit-less claim that led to a six-figure verdict involved Allen Fruge, a white Department of Energy employee based in Texas. Fruge unwittingly spawned a harassment suit when he followed up a southeast Texas training session with a bit of self-deprecating humor. He sent several of his colleagues who had attended the session with him gag certificates anointing each of them as an honorary "Coon Ass" -- usually spelled "coonass" -- a mildly derogatory slang term for a Cajun. The certificate stated that "[y]ou are to sing, dance, and tell jokes and eat boudin, cracklins, gumbo, crawfish etouffe and just about anything else." The joke stemmed from the fact that southeast Texas, the training session location, has a large Cajun population, including Fruge himself.

An African American recipient of the certificate, Sherry Reid, chief of the Nuclear and Fossil Branch of the DOE in Washington, D.C., apparently missed the joke and complained to her supervisors that Fruge had called her a "coon." Fruge sent Reid a formal (and humble) letter of apology for the inadvertent offense, and explained what "Coon Ass" actually meant. Reid nevertheless remained convinced that "Coon Ass" was a racial pejorative, and demanded that Fruge be fired. DOE supervisors declined to fire Fruge, but they did send him to "diversity training." They also reminded Reid that the certificate had been meant as a joke, that Fruge had meant no offense, that "Coon Ass" was slang for Cajun, and that Fruge sent the certificates to people of various races and ethnicities, so he clearly was not targeting African Americans. Reid nevertheless sued the DOE, claiming that she had been subjected to a racial epithet that had created a hostile environment, a situation made worse by the DOE's failure to fire Fruge.

Reid's case was seemingly frivolous. The linguistics expert her attorney hired was unable to present evidence that "Coon Ass" meant anything but "Cajun," or that the phrase had racist origins, and Reid presented no evidence that Fruge had any discriminatory intent when he sent the certificate to her. Moreover, even if "Coon Ass" had been a racial epithet, a single instance of being given a joke certificate, even one containing a racial epithet, by a non-supervisory colleague who works 1,200 miles away does not seem to remotely satisfy the legal requirement that harassment must be "severe and pervasive" for it to create hostile environment liability. Nevertheless, a federal district court allowed the case to go to trial, and the jury awarded Reid $120,000, plus another $100,000 in attorneys' fees. The DOE settled the case before its appeal could be heard for a sum very close to the jury award.

There are signs that the public is growing impatient with the corrosive effect of hostile environment law on freedom of expression. One of the more amusing manifestations of this disquiet is an episode of the animated series South Park. After a visit from the "Sexual Harassment Panda," the children of South Park begin to sue each other for harassment over minor insults. Eventually, the children pursue deeper pockets, the school at which these insults take place. The school is bankrupted, while Kyle's attorney father, who represents all of the plaintiffs, becomes wealthy. This leads to the following exchange:

Father: You see, son, we live in a liberal democratic society. The Democrats [sic -- it was a mostly Republican EEOC and Supreme Court] created sexual harassment law, which tells us what we can and cannot say in the workplace, and what we can and cannot do in the workplace.

Kyle: But isn't that fascism?

Father: No, because we don't call it fascism.

David E. Bernstein, professor of law at George Mason University, is the author of the new book, "You Can't Say That! The Growing Threat to Civil Liberties from Antidiscrimination Laws" (Cato Institute, 2003) from which this is excerpted.