1. I don't trust Hanania. He's not a reliable historian. And he's much more heat than light. I have concerns that in participating in this I am adding to attention drawn to him; I'm out of the thread after this. I did not read the book.
2. I have some expertise in harassment cases in California. The idea that one joke creates liability is untrue. See: California Civil Jury Instruction (abbreviated CACI for reasons not immediately clear to the casual observer) 2521A. Further different workplaces can have different standards; (see the Friends case - Lyle v. Warner Brothers (38 Cal.4th 264)). "FEHA is not a civility code."
For clarity, I am not talking about what the law should be. I am discussing what the law is. And isn't.
> The idea that one joke creates liability is untrue.
That's not the idea, though. One joke creates *grounds for a suit,* and then, even if the defendants win because the suit was obviously without merit, the disgruntled employee who filed the suit is now a member of a protected class and you can't do anything to them for fear of having it called "retaliation."
Reading the CACI jury instructions, it looks like anything that a California jury thinks is both “severe” and “offensive” is grounds for liability. It is well-established in 1st amendment cases that relying on “reasonable person” standards for speech is a recipe for disaster.
What if Bob makes one offensive joke, Alice reports him to HR, HR does nothing, then Bob makes several more of those jokes, then Alice goes straight to the court? If the court would hold the company liable for condoning harassment by not having disciplined Bob the first time, then the company is forced to discipline employees even for one joke.
Also, companies don't have a lot of resources to investigate complaints, so they err on the side of presuming guilt. And the laws are vague, and the awards excessive; and courts adjudicate civil cases on a mere preponderance of evidence basis; and employees avoid actions that carry even a moderate risk of getting them fired.
All of these point in the direction that hostile environment law has a chilling effect on a far, far broader range of speech than what's actually likely to lose a lawsuit.
>Also, companies don't have a lot of resources to investigate complaints, so they err on the side of presuming guilt. And the laws are vague, and the awards excessive; and courts adjudicate civil cases on a mere preponderance of evidence basis; and employees avoid actions that carry even a moderate risk of getting them fired.
Many Thanks! Great articulation of the whole _chain_ of amplifiers for the chilling effects!
1. I don't trust Hanania. He's not a reliable historian. And he's much more heat than light. I have concerns that in participating in this I am adding to attention drawn to him; I'm out of the thread after this. I did not read the book.
2. I have some expertise in harassment cases in California. The idea that one joke creates liability is untrue. See: California Civil Jury Instruction (abbreviated CACI for reasons not immediately clear to the casual observer) 2521A. Further different workplaces can have different standards; (see the Friends case - Lyle v. Warner Brothers (38 Cal.4th 264)). "FEHA is not a civility code."
For clarity, I am not talking about what the law should be. I am discussing what the law is. And isn't.
> The idea that one joke creates liability is untrue.
That's not the idea, though. One joke creates *grounds for a suit,* and then, even if the defendants win because the suit was obviously without merit, the disgruntled employee who filed the suit is now a member of a protected class and you can't do anything to them for fear of having it called "retaliation."
Reading the CACI jury instructions, it looks like anything that a California jury thinks is both “severe” and “offensive” is grounds for liability. It is well-established in 1st amendment cases that relying on “reasonable person” standards for speech is a recipe for disaster.
What if Bob makes one offensive joke, Alice reports him to HR, HR does nothing, then Bob makes several more of those jokes, then Alice goes straight to the court? If the court would hold the company liable for condoning harassment by not having disciplined Bob the first time, then the company is forced to discipline employees even for one joke.
Also, companies don't have a lot of resources to investigate complaints, so they err on the side of presuming guilt. And the laws are vague, and the awards excessive; and courts adjudicate civil cases on a mere preponderance of evidence basis; and employees avoid actions that carry even a moderate risk of getting them fired.
All of these point in the direction that hostile environment law has a chilling effect on a far, far broader range of speech than what's actually likely to lose a lawsuit.
>Also, companies don't have a lot of resources to investigate complaints, so they err on the side of presuming guilt. And the laws are vague, and the awards excessive; and courts adjudicate civil cases on a mere preponderance of evidence basis; and employees avoid actions that carry even a moderate risk of getting them fired.
Many Thanks! Great articulation of the whole _chain_ of amplifiers for the chilling effects!