Yesterday I heard about President Obama’s National Urban League speech on NPR, and one particular item struck me. (I’m sure it’s not the most important item, but it’s just the one about which I have something to say.):
We should all make more of an effort to discuss with one another, in a truthful and mature and responsible way, the divides that still exist — the discrimination that’s still out there, the prejudices that still hold us back — a discussion that needs to take place not on cable TV, not just through a bunch of academic symposia or fancy commissions or panels, not through political posturing, but around kitchen tables, and water coolers, and church basements, and in our schools, and with our kids all across the country.
I certainly agree that it would be good for people to discuss racial issues in a truthful, mature, and responsible way. But I’m pretty sure that discussing such issues around “water coolers” is pretty dangerous advice, at least if one really wants a discussion in which people aren’t afraid to air their views.
1. To begin with, any arguments that some might see as racist could lead to complaints and even lawsuits about a supposedly “racially hostile work environment”; and while such lawsuits are hard for plaintiffs to win, no employer wants to have to fight them, and no employee should want to have his speech be the subject of such suits.
As one Sixth Circuit decision put it, “In essence, while [harassment law] does not require an employer to fire all ‘Archie Bunkers’ in its employ, the law does require that an employer take prompt action to prevent such bigots from expressing their opinions in a way that abuses or offends their co-workers. By informing people that the expression of racist or sexist attitudes in public is unacceptable, people may eventually learn that such views are undesirable in private, as well. Thus, Title VII may advance the goal of eliminating prejudices and biases in our society.” When some judges (not all, fortunately, but some) take such a view, smart workers ought to be careful about any speech that some might perceive as “expression of racist … attitudes” at work; and even someone who is trying hard to be “truthful and mature and responsible” in discussing race might certainly say things that some offended listeners view as racist.
(I should note, by the way, that while there are many practical deterrents to an employee’s suing over racial harassment while he is still employed at the company where the incident took place, many such lawsuits happen when the employee has already been dismissed. Then there is little cost to adding a racial harassment claim on top of a racial discrimination in discharge claim, and there is the prospect that even if not enough evidence can be found of racial discrimination in discharge, the racial harassment claim might be successful, or at least plausible enough to pressure the employer into a settlement.)
When the legal standard is as vague as that the speech, together with other statements by other people at other times, is “severe or pervasive” enough to create a “hostile, abusive, or offensive work environment” for the plaintiff and a reasonable person based on race, the cautious employer is likely to want its employees to likewise be very cautious in this field. Alan says around the water cooler that the underrepresentation of blacks in some job category stems from white racism. Betty responds — perhaps thoughtfully, or perhaps out of anger at what she sees as Alan’s exaggerations or overgeneralizations — that the real reasons might be failings in black American culture, or even genetic differences. Is that the sort of thing that might become part of a racial harssment case? Well, it may well be “expression of racist … attitudes in public,” so the Sixth Circuit opinion I quoted above might call for liability. Or maybe a court will conclude that it doesn’t count, because a reasonable person shouldn’t be offended by such political expression (though there is certainly no “political speech” or “attempt at honest conversation about race” exception recognized in harassment law right now). But the point is that Betty, and Betty’s employer, can’t possibly know that such statements are safe; the careful employer is therefore likely to punish such statements, or at least ban them for the future, and the careful employee is likely to avoid them, or any conversations that could lead to them.
And no employer can afford to respond to a claim that an employee said something racist by saying, “Oh, no problem, it’s not severe or pervasive enough to lead to liability,” especially since an employer who doesn’t punish individual such statements can be held liable for the aggregate of several such statements by several people. To give one example, from Phillip M. Perry, Don’t Get Sued for Racial Discrimination, Law Prac. Mgmt., July-Aug. 1996, at 42:
In [cases of people inadvertently using inappropriate terms], because of the seriousness of the offense discipline might begin with a strong reprimand and a disciplinary suspension. If an incident occurs again, it may result in termination. For acts which are deliberate and offensive, immediate termination may be called for. [Carl] Johnson [President of Princeton Employee Relations] gives one example: “In the Midwest, during the 1988 presidential campaign, a supervisor at one company used the office copy machine to run off some fake applications to join the Jesse Jackson campaign staff. The application included racist language. The individual was discharged immediately.”
See also, e.g., Russell Shaw, Cyberspace Conduct: What’s Your Policy?, Investor’s Business Daily, Nov. 18, 1997, at A1 (beginning by an example of “access [to] an X-rated Web site” leading to “threat[ of] a lawsuit for sexual harassment,” and going on to say that “As you draft policies for Internet usage, experts recommend cautioning employees against . . . [c]licking to sites known for explicit sexual content or extreme views likely to be insulting to various racial or religious groups”). I discuss other similar examples of advice to employers — and of actual filed lawsuits and court statements — here, though the incidents are largely from several years or more ago, since I haven’t updated the page much in recent years.
2. Moreover, statements that could be seen as involving race-based generalizations could be later introduced as evidence of racial animus in a discriminatory discharge/demotion/failure to hire/failure to promote case, if the speaker has a role in the hiring process. Recall the Alan-Betty exchange: When Alan is later discharged, and sues for race discrimination, he argues that Betty had some role in the discharge decision, and that Betty’s statement is evidence that she likely discriminated against him based on race.
Again, it’s not clear that such a statement would lead to a victory in court; the jury might not find it probative enough, and in any case it might in some situations be seen as insufficient evidence under the “stray remarks” doctrine. But the risk is sufficient, I think, that many an employer will immediately discipline Betty for her statement, and that at the very least people like Betty would be reluctant to express their true views, either at work or elsewhere.
To be sure, such evidentiary use of speech is not a First Amendment violation, given well-settled doctrine applicable far beyond antidiscrimination law; my First Amendment objections apply to actual liability for speech under harassment law. But this doesn’t change the fact that discussions about race around water coolers are potentially very dangerous.
3. Finally, this isn’t just a matter of liability: Allegedly racist comments can yield bad publicity for the employer, can waste a huge amount of employer time and energy on internal investigation and discussion, and can cause morale problems that interfere with productivity. Even without the risk of litigation, many people have long been cautious about talking about matters that their listeners might feel strongly about a deep and personal level — race, religion, politics, sexuality, and more. Nonetheless, it seems to me that the risk of vast liability has been an important factor in dramatically increasing the cost of expressing one’s candid views about race (especially at work), and in deterring people from expressing those views.
4. What strikes me as most interesting about this phenomenon — other than the practical unsoundness of President Obama’s suggestion — is that the very fight against discrimination and prejudice that the President is trying to promote in his statement has made it much harder to have candid discussions about race. We see the same happening in some measure as to candid discussions about sexual orientation. (The early phases of the gay rights movement also made it socially easier to have such candid discussions, but as sexual orientation discrimination law is beginning to follow the path of racial discrimination law, such discussions are becoming more professionally and legally perilous.) That might be an inevitable and acceptable consequence of that fight. But I don’t think that we can ignore it, and suggest that more discussion — at least around the water cooler — is going to help solve the problem.
Houston Lawyer says:
The last thing that Obama wants is a candid discussion on race relations. This is a guy who had Jeremiah Wright as a mentor. He wants to use race as a weapon to use against his political opponents.
You are correct that no one in their right mind would “candidly” discuss race relations at the office. I can’t think of a much quicker way to get fired, unless you are a member of one of the protected races.
July 30, 2010, 12:17 pmIsland says:
Sounds like Obama should be fired for creating a hostile work environment throughout the US for his Cambridge “I don’t know anything about it but the white guy is at fault” and other similar statements.
July 30, 2010, 12:20 pmDr. K says:
In our discussion about “race around water coolers” we decided that it is a bad idea.
I someone runs into the cooler, we can have a worker’s comp claim.
July 30, 2010, 12:23 pmPersonFromPorlock says:
Shouldn’t people at work be, you know, working, anyway?
Free and frank discussions of race down at the unemployment office might be fun, though.
July 30, 2010, 12:28 pmbbbeard says:
I’ve been told by one lawyer that “hostile environment law” has been extended over the years to include employees’ activities outside the workplace. For example, knowing that your boss is an open supporter of the Dixiecrat Party is enough to create a hostile work environment.
Do you know is this is true? If it is, it’s not just the water cooler that is off limits. Church basements and schools would seem then to be the last place one could have a candid discussion.
On the other hand, my recommendation is always to live as a free person. Stand up to the racists who want to trade our First Amendment rights for their utopian vision. Use non-violent civil disobedience and act according to your conscience.
July 30, 2010, 12:29 pmNorman Normal says:
Race to the water cooler, maybe.
July 30, 2010, 12:32 pmrb1971 says:
Wow – horrible advice. As a partner at a major law firm with hiring/firing/promoting duties I would *never* even get anywhere close to any conversation like this, and further I would shut it down if I went into the kitchen at work (where we technically have a water cooler although it’s more of a water “holder” that doesn’t get that cold) and heard anyone talking about these kinds of issues.
I know folks that worked at Sidley with the president’s wife and I am pretty sure they didn’t have these types of conversations there.
July 30, 2010, 12:34 pmSmooth, like a Rhapsody says:
Do many people use water coolers anymore?
One anecdote that touches on this topic from my office, though:
We (not me–the lawyer–but others) have to be on call 24/7, and they were assigning holidays. We were trying to come up with a list of “real” holidays, that should be treated as a rotating holidays, and those (like Veteran’s Day) that are not times people treat as special occasions and should just be left as regular on-call time.
One (white) person opined that MLK Day is not a “real” holiday. The two black employees were not amused.
July 30, 2010, 12:36 pmeuphrates eve says:
Race, the banal frontier.
July 30, 2010, 12:40 pmCheckEnclosed says:
My evidence professor used to say that, to be relevant, evidence just needs to be a brick, not a wall. One problem with our harassment jurisprudence is that while no particular off-color joke, or offensive comment (except for certain magic words in some jurisdictions), constitutes harassment, enough of them can become pervasive enough to create a hostile work environment. It is the wall of many such statements that becomes actionable, not the individual bricks, and no one can tell for sure when a reasonable jury will find that a pile of bricks is big enough to count as a wall.
The result is that employers, advised by lawyers and HR folks, realize that the only safe harbor (mixing metaphors) is to ban all bricks. They can’t measure the cost of this to employee morale, or the contribution of morale to profit, but they can meaure the amounts of fees, settlements, and judgments.
Things then backfire because once someone violates the prophylactic policy againts single instances of things that can, en masse, be actionable, an internal investigation of any complaint of harassment will find some basis for disciplining the accused employee. Then the accuser can use the result to that investigation as the ground floor of an edifice of more serious allegations, which can almost certainly state a claim, because at least some of the charges have been validated by the employer itself.
July 30, 2010, 12:40 pmCalderon says:
As the lawyer, you should have pointed to FRCP 6(a)(6) with the authoritatve list of holidays (which includes both Veteran’s Day and MLK Day). Can’t be blamed for following a judicially selected list of holidays. (Though I guess if for financial or other reasons your company wanted less than 10 holidays a year you’d have to start making decisions)
Regarding the rest of the conversation, I can only assume that discussions around the water cooler, and at school, is one of those things that sounds good in a speech that no one really expects to happen.
July 30, 2010, 12:48 pmMike says:
What amuses me about your whole example – shouldn’t Alan’s statement be just as actionable? If someone says (to pull a recent pertinent example) that it’s hard to get a job in hollywood because the Jews keep them out, that’s considered a racist statement.
Are we sure his suggestion isn’t just a stimulus for anti-discrimination lawyers and HR compliance officers? :)
July 30, 2010, 12:55 pmHans says:
Amazing. Is this the same Obama who opposed Janice Rogers Brown for a federal appeals court seat in June 2005 partly based on her dissent in the Aguilar v. Avis case (where Brown objected to an injunction issued in a racial harassment case as being overbroad where it could theoretically have been violated by a single instance of racially offensive speech)?
Brown cited the First Amendment in her dissent, noting that the injunction was overbroad. (No one suggested her dissent was racist; Brown herself is an African-American, and she was joined in dissent by another minority woman judge. Brown was later confirmed to the D.C. Circuit).
The injunction was overbroad, even if you assume that all speech that creates a hostile environment is automatically unprotected for that reason alone. It is blackletter law that a single derogatory utterance, even a racial epithet, is insufficient to create (or revive) a hostile work environment. (See Harris v. Forklift Systems (1993) (Supreme Court observes that a single “utterance,” even of an “epithet”, is not enough); Gipson v. KAS Snacktime (8th Cir. 1998) (isolated acts of harassment cannot revive a hostile work environment which used to exist a long time ago); Konstantopoulos v. Westvaco (3d Cir. 1995) (Alito, J.)(same).
Brown noted that the “hostile environment” concept is not a talisman that overrides all First Amendment claims, and that while the government could generally award civil damages for racially harassing workplace speech, it could not ban racist speech in public fora by labeling it as a “hostile sidewalk environment.”
Apparently, Obama disagreed.
July 30, 2010, 12:59 pmbyomtov says:
Some seriously excessive legalistic reading going on here. In fact, it sounds like a lot of the nit-picking analyses of phrases that produces some of the sillier PC moments.
I think Obama was just trying to suggest that informal discussion among friends and family could do a lot of good. The “water cooler” is metaphoric.
Forget “hostile work environments.” Most employers are not fond of deep discussions of non-work related matter “around the water cooler” or elsewhere. The most that’s acceptable is usually something like,
“Hey, great game last night, wasn’t it?”
“Sure was.”
End of conversation.
July 30, 2010, 1:01 pmMAM says:
I have to agree with the Professor here, but not for the same reason. What invariably happens in the work environment is that the few black people are burdened with having to listen to some of the most silly, if not racist, bs around. We become the conduit for blackness.
I was a young associate at the firm I’m now a partner when I went on a two-hour long road trip with one of the most senior partners at the firm. Invariably he begins to talk about race. He talks about how dangerous the ghettos are and how black lawyers are better than Hispanic lawyers and, by implication, how white lawyers better than both and how he really despises affirmative action b/c he’s witnessed minority law firms in our practice that didn’t know what they were doing. Then, of course, he begins to talk about the book The Bell Curve, but surprisingly, knows a few smart black people.
I was little pissed as I had just left a large law firm to work at this boutique firm. I thought, oh no, I’m the “black guy” that old white guys will feel free to unburden themselves on issues of race. So not only did I come to believe that I was working with a dinosaur, but that I would be his racial therapist.
I say keep the racial stuff to yourself at work. Also, for all the paranoid folk out there at work, please stop sending emails to everyone that Obama is a secret Muslim or that Obama is the anti-Christ.
July 30, 2010, 1:02 pmLugo says:
Translation: the propaganda struggle against Incorrect Thoughts must intensify!
A Truthful Discussion is one in which only Correct Truths may be expressed.
Good little Pavlik Morozovs shall be trained to denounce their racist parents!
July 30, 2010, 1:16 pmbbbeard says:
Don’t let Human Events know about that Anti-Christ thing…. ;-)
July 30, 2010, 1:17 pmgravytop says:
Friends and family? I think that, even if these comments are being overly literal about an actual water cooler being the site of a racial discussion, byomtov’s interpretation misses the mark even wider. We don’t need to discuss race with our families for the most part, at least not to bridge racial chasms. Same goes with friends, at least often. Obama is obviously saying we should have discussions re race with people outside of our regular comfortable social circles — and where do we intermingle with those people? Well, work is one place. I think that byomtov is doing the opposite of nitpicking (whatever that is.)
July 30, 2010, 1:26 pmTuna says:
As a plaintiff lawyer, I think that we should all make an effort to discuss with one another, in a truthful and mature and responsible way, the reprehensible and terrible conduct of defendants and their counsel.
What defendant or counsel would possibly ever be offended by that?
July 30, 2010, 1:27 pmKen B says:
Obama’s admonition is INTENDED to be ignored. It is phatic speech: speech detached from its literal meaning uttered only to prove the speaker as a member of a group. As is most political speech in America.
July 30, 2010, 1:27 pmalkali says:
I apologize for the length of this comment. However, I submit that this post’s use of the quoted Sixth Circuit case is disingenuous, and that it generally mischaracterizes the case law in this area.
There is no genuine confusion in the case law about whether a civil workplace conversation about racial issues can constitute a violation of federal civil rights law. It plainly does not.
The Sixth Circuit case referred to is worth examining. While no citation is offered, I believe the Sixth Circuit case referred to is Davis v. Monsanto Chem. Co., 858 F.2d 345 (6th Cir. 1988). There, the Sixth Circuit affirmed a district court’s grant of summary judgment in favor of an employer. The court held that the plaintiffs’ allegations of racial harassment did not give rise to a triable claim because the evidence showed that the employer did not condone those actions:
The point the Sixth Circuit was making in connection with the “Archie Bunkers” quote was that the district court — although it was correct in granting summary judgment — went too far by implying that an employer like Monsanto could never be responsible for one employee’s racial harassment of another. However, the Sixth Circuit did not hold that statements made in a water cooler conversation, even if they were offensive to one participant, would be considered harassment on the level of dergoatory graffiti, spitting on someone’s timecard, or a racially-segregated cafeteria. Indeed, my understanding is that courts regularly dismiss such claims on motions to dismiss or at summary judgment.
For example, in Shuler v. Corning, Inc., No. 4:08CV00019, 2008 WL 3929139 (W.D. Va. Aug. 21, 2008), an employee brought a racial harassment claim based on a heated political conversation that he had had with a supervisor. The case was thrown out at the motion to dismiss stage:
(I note that the plaintiff in Shuler represented himself pro se, which may or may not be informative as to what plaintiffs’ employment lawyers thought of his case.)
Likewise, in Smith v. Alcon Laboratories, Inc., No. 00 C 7982, 2002 WL 1727393 (N.D. Ill. July 24, 2002), the court treated the idea that statements made about affirmative action in a political discussion might be actionable as absurd:
In short, I don’t think there’s any basis for asserting that the law is “vague” on the question of whether civil water-cooler conversations about racial issues will be deemed racial harassment. It is clear that the answer to that question is no.
July 30, 2010, 1:37 pmanother cynic says:
Alkali -
A prudent employer is worried about more than liability; the costs of defense are bad enough, as Prof. V’s OP noted.
So in the cases you cited, in which political-debate claims were rejected, were the plaintiffs sanctioned and forced to pay the defendants’ attorney fees? I assume not.
So if you are the manager of one of those defendants, would you tell employees to resume the same robust debate that cost you $100K last year, because “gee, we’d win again in our circuit!” Or would you tell everyone to shut up and get back to work?
July 30, 2010, 1:51 pmThe Curmudgeonly Ex-Clerk says:
Alkali wrote:
And yet not so absurd as to preclude litigation altogether. Tell us, was the lawsuit deemed so absurd that the court declared it frivolous and it assessed sanctions against the plaintiff?
If not, if you are an employer, the mere possibility of being embroiled in costly litigation — costly in terms of actual defense expenses and time as well as the reputational harms associated with accusations of racial discrimination and/or hostile environment — is sufficient reason to frown upon so-called civil discusions of race relations in the workplace. And, of course, civility is in the eye of the beholder and is exactly the sort of thing about which the parties are likely to disagree in any litigation that ensues.
If you are an employee, you would have to be barking mad to let co-workers embroil you in a “civil” conversation about race.
July 30, 2010, 2:05 pmalkali says:
@another cynic, Curmudgeonly Ex-Clerk: I don’t disagree that employers might take such prophylactic steps. I don’t disagree that plaintiffs who bring nuisance cases are hardly ever sanctioned in American litigation. My point is only that those things have nothing to do with any purported lack of clarity in the civil rights case law.
July 30, 2010, 2:09 pmBrandon Berg says:
I believe you misunderstood Obama’s comment. What he meant is that Alan should make more of an effort to promote his views to Betty, who should make more of an effort to shut up and/or agree.
July 30, 2010, 2:19 pmanother cynic says:
Alkali, thanks for the clarification. As I understand it, you’re not disagreeing, then, with the idea that employers should shut down “water cooler” conversations, but only with the ideas that (1) liability is likely and (2) that law is unclear in this area?
As to liability, yes, the “single incident” cases will not succeed, but there’s still the probably of the collective effect of these “incidents” of robust free speech, whether in a hostile-environment case or as evidence in a disparate-treatment case. So even beyond cost of defense, there’s still a liability threat.
As to clarity, the tipping point for liability is quite unclear, even if the sole-incident cases aren’t so likely to succeed. Also, if these cases were so clearly a nuisance, how did they get so far? These are usually contingency cases, right? So someone thought they had a shot of shaking down the company, and they thought that because these “nuisance” cases get paid off all the time.
July 30, 2010, 2:21 pmalkali says:
To be precise, I’m not disagreeing that some employers may try to discourage such conversations. I’m not affirmatively recommending they do that, and indeed I think that employers trying to limit their potential exposure would be better off focusing on other things. (To be sure, there are matters of degree: I work for a business where no one is likely to decree “no water cooler conversations about X.” However, if someone proposed to start an employee discussion group about the dangers of affirmative action, that would probably get someone’s attention, for better or for worse.)
That could be a concern. My sense is that courts generally don’t like to expand the scope of employment discrimination cases in that way, including because judges don’t want to shut off or penalize civil conversations.
The Shuler case was brought pro se (i.e., without a lawyer) and thrown out on a motion to dismiss, so it didn’t get very far. I tend to think that the courts should do more to keep all kinds of nuisance litigation under control.
July 30, 2010, 2:33 pmArthur Kirkland says:
You might be on to something, and I might have overheard something about this recently. Some politicos were discussing this tactic, and I think they used the code name “Southern Strategy.”
July 30, 2010, 2:36 pmbyomtov says:
Gravytop,
Well, I may have overstated things, but I do think the “water cooler” business was metaphoric, and I doubt Obama intended to suggest people spend a lot of work time on this. The general reaction here that focuses on the legal issues surounding such workplace discussions seems to me to be misdirected.
Lugo,
Do you think there are no racial divides in the US? And where did Obama call for kids to denounce their parents? Some serious ODS there.
July 30, 2010, 2:36 pmtroll_dc2 says:
I agree with the view that racial discussions at work ought to be prevented because of the ability of unhappy people to use them for their own ends, sometimes years later, even if nothing is said that a court would find worthy of liability. Truthful conversation on the subject does not fit in the modern workplace.
But there is still the need to have truthful conversation on the subject of race relations somewhere. The best way to get it, I believe, is to develop relationships across racial lines with people who are interested in the subject. Nothing that I have seen has been more useful in discussing the matter than John L. Jackson, Jr.’s Racial Paranoia: The Unintended Consequences of Political Correctness.
July 30, 2010, 2:39 pmKen Arromdee says:
Yes, of course it is. Again, it’s common on the Conspiracy for bloggers to act as though something which is clearly pretense is actually what it pretends to be as a form of sarcasm or irony.
July 30, 2010, 2:39 pmLugo says:
Obama was not calling for a genuinely truthful discussion of those divides. When the Left calls for a “discussion” about race, they mean they should do all the talking, while the Right stands there and listens quietly while feeling guilty.
Do I need to call myself Sarcastro for you to get it?
When he said, “around kitchen tables… and in our schools, and with our kids all across the country” what he meant was that Leftist teachers would indoctrinate the kids with the Correct attitudes about race, the kids would repeat these attitudes to their (racist) parents, and the parents would be too uncomfortable to contradict or correct what the kids had said. And thus the Leftist view would prevail.
July 30, 2010, 2:46 pmKen Arromdee says:
Nonlawyers are concerned about how badly the law will make them get hurt. Whether their activity is actually legal or not is a side issue and really something only lawyers care about. If the law is sufficiently unclear that someone can sue you, it won’t be declared frivolous, and it will be expensive to defend yourself, as far as the nonlawyer is concerned the law is unclear. The fact that the trial may result in exoneration makes no difference.
Pointing out that the law isn’t unclear enough to convict someone when it is unclear enough to subject them to massive expenses in court is pedantry.
(Also, it’s based on the legal fiction that innocent people cannot be forced to settle for damages.)
July 30, 2010, 2:49 pmalkali says:
It’s not the particular lack of clarity in the law that generates nuisance lawsuits. In the employment context, relevant factors that generate nuisance lawsuits are (1) the fact that people who have just lost jobs generally need money, (2) the considerable expense of defending even nuisance litigation and the associated incentive to settle, and (3) the lack of any effective sanction on people who bring nuisance lawsuits.
July 30, 2010, 3:08 pmtroll_dc2 says:
One way to address this problem is to take away the private right of action and require that all cases be processed and heard by the EEOC, similar to the way that Taft-Hartley cases are heard by the NLRB. That was the original plan for the Commission, but it was dropped as part of the compromise needed to get Title VII through the Senate in 1964. That is why the EEOC’s general counsel, even today, requires Senate confirmation; he would have had the same unreviewable discretion that the NLRB general counsel has.
I suspect that the civil rights community today would not be enamored of such a change.
July 30, 2010, 3:25 pmCornellian says:
Anyone who thinks talking about race in the workplace is a good idea doesn’t know how the theory of hostile work environment discrimination works in practice.
July 30, 2010, 3:27 pmKen Arromdee says:
It is. The law could have been written to make clear that a lawsuit over a single incident, is a frivolous lawsuit and should result in the plaintiff paying the defendant’s expenses. According to you, this kind of lawsuit should fail 100% of the time–so it should already be a frivolous lawsuit; the only problem is that it’s not obvious enough that that’s the case.
July 30, 2010, 3:45 pmdee nile says:
Or knows how it works and likes it.
July 30, 2010, 3:45 pmBruce Hayden says:
I don’t think that anyone thinks that it is a good idea. And I would suspect that no one here really condones it. Rather, the question is how bad is it, esp. when we put on our lawyers hats?
On a personal level, I let most things at work, on a one to one basis, roll off me. Life is just simpler that way. Sure, some people are racists. But it can be almost as offensive if someone is overly political. Or tells religious jokes. It all depends.
The problem from a lawyer’s point of view, esp. when advising clients, is that it is to a great extent subjective. What isn’t offensive to me may well be offensive to someone else. And it is that potential for liability to the person who is offended, who finds himself in a hostile work environment as a result, that we have to worry about.
July 30, 2010, 3:49 pmwhit says:
this is just an example of obama playing 4-dimensional chess again…
see, if people listen to him and start doing this, then this will bring more hostile workplace lawsuits, which will help alleviate the problem we already discussed – too many out of work lawyers.
obama’s already pissed off the teacher’s unions, so he’s throwing a bone to the lawyers.
July 30, 2010, 3:51 pmmuriel schwenck says:
People should be working at work, not chatting. IN reality I do not think anyone finds much to discuss regarding race, unless it’s to talk about how a small minority insist it’s something we should discuss.
July 30, 2010, 3:57 pmRace at the water cooler « One Thief to Another says:
[...] Race at the water cooler By nathanaelblake Volokh has a great post up on how Obama’s call for an open discussion on race in America is disingenuous. For while Obama might say that, “We should all make more of an effort to discuss with one another, in a truthful and mature and responsible way, the divides that still exist — the discrimination that’s still out there, the prejudices that still hold us back — a discussion that needs to take place not on cable TV, not just through a bunch of academic symposia or fancy commissions or panels, not through political posturing, but around kitchen tables, and water coolers, and church basements, and in our schools, and with our kids all across the country,” an employer who allowed such discussion would be setting themselves up for trouble. [...]
July 30, 2010, 4:06 pmPlugInMonster says:
Really? I thought the whole point was to be around the water cooler all day long just shootin’ the breeze Huck Finn style.
July 30, 2010, 4:08 pmSarcastro says:
Yes! Obama’s motivations are nefarious for every word or phrase! We can tell because Chicago.
July 30, 2010, 4:09 pmDrFunke says:
You look around today and see the race card being played by both sides which make it even more infuriating when trying to talk about it
I thought liberals and the left would use it often when Obama got elected but instead I see Rush and other conservatives bringing it up MORE than anyone else AND THEN trying to act like they weren’t the ones doing such a thing…..I mean, it boggles my mind. Obama attends a meeting and I see a blog asking whether it was racially motivated or not….and even left-wing blogs ask….huh?
July 30, 2010, 4:11 pmFloridan says:
Lugo: “And thus the Leftist view [on race] would prevail.”
And what, pray tell, is the Leftist view on race?
July 30, 2010, 4:28 pmXanthippas says:
This is poor advice. You can’t possibly expect to have a reasonable, non-offensive discussion of race, while you’re at work. Especially if you happen to work for or with Houston Lawyer.
July 30, 2010, 4:30 pmPerseus says:
Academia symposia are hardly the place where race is talked about in a truthful, responsible, and mature way.
July 30, 2010, 4:45 pmAlex Bensky says:
Pretty much all of these cases are decided under the Matsuda Doctrine, named after law professor Mari Matsuda who says, pretty much openly, that certain select groups are entitled to rights that other groups, especially majorities, are not.
Some years ago, for example, I worked in the law department of a large midwestern city that mostly black. Instances of casual anti-Semitic remarks were frequent and when I complained I was told not to be so sensitive. I am just guessing, but I rather think casual and frequent racism would not have been dismissed so lightly.
My impression is that for understandable financial reasons once the complaint is made the alleged perpetrator is fired. I do a lot of unemployment cases and one, a guy fired because his supervisee claimed he had touched her inappropriately.
At the hearing to my astonishment she actually admitted the truth, which was that he had touched her on the sleeve to direct her attention to a computer screen, and she made the complaint because he was about to issue a written disciplinary notice and she wanted to deflect attention to him.
Ten years with this employer, he loved his job, hoped to make it a career, and she shot it to hell. My client plaintively asked when we got the decision if he could ask for his job back. I told him sure, he could ask, but I didn’t think he was going to get it, as indeed he did not.
July 30, 2010, 5:08 pmWhiteyC says:
The President has no meaningful experience in the American workplace, and it shows.
I have worked for many years in professional and management positions in Silicon Valley. The message from management and the unwritten custom of the culture both have been very clear: never, never, never have a non-trivial discussion in the workplace about race, religion, sex, or politics. And nobody ever did, or does, at least not in my hearing.
At one point, when I was working at Compaq, all managers had to take a HR training course on these matters. I’ve forgotten its real title, but it was informally known as “Be a Manager, Go to Jail.” It explicitly reinforced the same message.
Whether or not an eventual lawsuit would be successful or not was not a major consideration. What people feared was the enormous amount of time and hassle required to deal with a HR case of any kind. There was and is never enough time to do everything that needed doing; spending hours and hour on HR issues would mean time not spent on key issues like product cost and quality. Not the kind of situation that gets anyone a raise or a promotion.
July 30, 2010, 5:15 pmnot a hacker says:
Here’s a water-cooler discussion that allegedly took place between two mgrs. at Oracle, resulting in a lawsuit:
“The south should have won the civil war.”
“no kidding.”
A black employee, Johnnie Taylor, claimed he inadvertently overheard this. He quit, and sued for constructive discharge based on “hostile work environment.” During discovery it was learned he’d faked up his resume, and he voluntarily dismissed his action.
July 30, 2010, 5:16 pmwhit says:
you have a real difficulty with reading comprehension.
4 dimensional chess is not a moral indictment of obama.
it’s riffing on kneejerk obama SUPPORTERS who tend to try to think beyond the obvious in re: his choices when they disagree with them in theory, in the same way they see rove behind everything.
iow, obama didn’t invite donnie mcclurkin to his inaugural in any way , shape or form, to throw GLBT’s under the bus. he was just playing 4 dimensional chess
or obama isn’t continuing the unitary executive grab for power because he’s a “fascist” like bush. he is just playing 4 dimensional chess
etc.
sometimes, you are pretty funny. but sometimes you are just kneejerk and see everything as a criticism of obama by the right, which is simply not what was my point
July 30, 2010, 5:24 pmMenshevilk says:
Alkali, do you have a link for Smith v. Alcon Laboratories? I can’t find it on Google, Google Scholar, FindLaw, or the Lexis beta site, and I don’t want to use Lexis-Nexis if I can avoid it.
July 30, 2010, 5:38 pmptt says:
You need to get out of Southern California more. Try some of the 32 states with no workplace protections for gay people. You’d be surprised how “candid” folks still are.
July 30, 2010, 5:43 pmdepartment 11 says:
Dear MAM:
would you mail me privately? I’m seeking a black correspondent on race. I’d like to relate to 4 or 5 stories, and get your considered perspective. only if genuinely interested, please. thank you.
July 30, 2010, 5:56 pmSarcastro says:
The Obama supporters in whit‘s world must be interesting folks. Alas, everyone I meet seems unhappy with the guy.
July 30, 2010, 6:08 pmwhit says:
sarcastro, i am referencing those in democratic underground, huffpost, etc.
there is the “i know it seems bad but obama is actually very smart. he’s a constitutional scholar. he is actually playing three dimensional chess here that we can’t possibly understand. trust him. he is obama” camp
and the “OMG obama is selling the left out” camp
a significant portion of threads involve the former telling the latter “sorry you didn’t get your pony” and other such ilk, and the latter calling the former a bunch of purists or repub plants
it’s pretty funny, actually.
it’s approaching critical mass where a lot of the obama cheerleaders are FINALLY catching on to what libertarians knew 3 years ago – obama is a statist ninny, just as bush was.
of course many of these leftists are incredible statists when it comes to hate speech, etc.
the current meme is that the FCC (even though fox is on cable, but i digress) andor the feds in general should be able to require fox news to remove the word “news” from their title
i am not joking
July 30, 2010, 6:50 pmSarcastro says:
[Well yeah, whit. Crazy people abound.]
July 30, 2010, 6:56 pmwhit says:
and it’s our job to make fun of them. DU is like electronic crack… or lay’s potato chips. you can’t read just one post…
July 30, 2010, 7:00 pmElliot says:
Just to get the ball rolling, maybe Obama could list the specific discrimination and prejudices that hold us back? And tell us exactly what we are being held back from? All I hear is vague generalities.
July 30, 2010, 7:35 pmSarcastro says:
[Heh. I'm totally the same way for Free Republic.
Can't do DU. Too painful to see folks take ideas I like far, far too far.
Being from the opposite side of the spectrum(ish), how are you on Free Republic and it's ilk?]
July 30, 2010, 9:12 pmwhit says:
almost a funhouse mirror version.
i spend about 5 minutes on FR and think “these people are over the top, idiotic, illogical, uninformed nimrods”. and on THE RIGHT.
otoh, i spend time on DU and think “these people are over the top, idiotic, illogical, uninformed nimrods”. and it’s somehow more palatable :)
kind of ironic.
DU reads like a rightwingers parody of leftwingers and FR reads like a leftwingers parody of rightwingers.
maybe it’s all some kind of weird turing test like experiment…
i actually enjoy and respect stuff like “the nation” etc. i may disagree with them, but at least they generally don’t argue from complete ignorance and emotion
what is most interesting is the DU gun forum. there, you have pro 2nd amendment leftists. it’s kind of awesome to see them use the same arguments against their (other than 2nd amendment) fellow travelers that the right uses against the left in general.
a lot of them start to realize that DU and FR are just funhouse mirror versions of each other.
July 30, 2010, 9:26 pmSarcastro says:
[One thing I like to do is compare both sides amazing hatred of the first ladies of the opposition.
The Right calls Michelle Obama a man, a wookie and trashy. They have entire threads devoted to unflattering pictures of her.
The left called Laura Bush a stepford wife, dumb, and heartless. They have entire threads devoted to plays where she meets Iraqi children killed by Americans.
We need like Freud and a sociologist to analyze the parallels and differences between crazies on both sides.]
July 30, 2010, 9:41 pmwhit says:
i like to point out to those who make the stepford claim that laura is the first first lady ever to hold a masters degree (hillary has a JD of course).
one of my best friends is far left. she refers to condi as “beady eyed and evil looking”.
July 30, 2010, 9:44 pmSarcastro says:
[I think the gender politics of the extremists on both sides is fascinating in their difference.
Liberals caricature conservative men as savage and conservative women as vapid.
Reverse the roles, and the men are feminine while the women are masculine.]
July 30, 2010, 9:48 pmwhit says:
this is quite true. iirc, it was margaret thatcher (might have been another) who was referred to as “not an authentic woman”. another conservative woman (whose name escapes me ) was tagged as “without uterus” (which is an interesting insult from a leftist, on a # of levels). and of course, conservative blacks are not “authentically black” or are “uncle toms” and such…
and you are right about the wimmins being masculine from the conservative insulters. ESPECIALLY hilary.
of course, the ultimate example imo of gender politix from the left was the duke thang. fwiw, i’ve investigated scores of rapes, and that case stunk FROM THE VERY BEGINNING. but it just got more stinky. when the friggin’ defense attorney VOLUNTEERED for his clients to give DNA and confidently predicted the DNA evidence would not be found on the victm, you KNEW they were innocent. they were jumping over backwards to cooperate with police, one guy provided a rock solid alibi, etc. etc. generally speaking, ime, when stuff like this happens – they are innocent (lots of other stuff pointed to problems with her credibility as well, of course)
yet, you had near unanimity on the left that she MUST be a victim because she was a lower middle class, african american, single mother, working woman, and they were (presumably) rich spoiled fratish boys of privilege. the metanarrative was just too juicy. a big group of faculty even wrote a damning letter to this effect. facts be damned.
to this day, there are “feminists’ at the feministing site who insist that the duke “boys” were still in the wrong, at least for hiring a stripper, etc.
the reality is this. when the metanarrative fits the prejudice, ideologues of the left or the right (depending on who it fits) will jump on board w/o hesitation.
one thing i thought hilarious was this winter, when we had a # of record freezes in various places, righties would claim it was PROOF THAT GLOBAL WARMING IS A HOAX. and lefties would say it was a temporary blip, not proof of anything.
now, this summer when we are having record highs, lefties are claiming it’s proof of global warming, and …
of course, neither is PROOF of anything. weather is like the stock market. it varies.
in the long run, we can talk about trends and averages, but one season does not prove ANYTHING.
the underlying truth about GW is irrelevant to this point. my point is that scant evidence is PROOF if it supports your beliefs. and double standards are par for the course
July 30, 2010, 10:08 pmJoe says:
the practical unsoundness of President Obama’s suggestions
I’m with the person who said it was a ‘metaphor’ but why the use of the plural? [EV: Good point, I meant to speak only about the "water cooler" suggestion; I changed the post to say "suggestion," thanks.]
“but around kitchen tables, and water coolers, and church basements, and in our schools, and with our kids all across the country”
If we are going to use the word “watercooler” in such a careful way, I think “suggestions” should too. Why isn’t it practical to discuss race around kitchen tables, church basements, at schools and with our kids?
And, since when — rather strange from you really — is “discussion” NOT in some fashion part of the solution? He isn’t saying it is the ONLY solution, is he?
I find it really silly actually to take one word from a speech like this — it misses the forest for the trees. Like finding it “interesting” to tell us the Brennan criticized Marshall at some point and that is all we learn about a book of hundreds of pages, this is somewhat shoddy. This is underlined by the comments, which focuses on that, not the overall points he makes in a speech, not some throwaway reference.
I also find a comment here that people should do their jobs at work and not talk to each other fairly amusing. Talk about not knowing what goes on at a typical work place. I respect the discussion of case law, but the idea that interpersonal relations are not dealt with in conversations at work is not realistic either. Also, given the context, I’m not sure if “watercoolers” is merely a work reference.
To the degree it’s a toss in that as toss ins can be is a bit dubious fine; but such focus is dubious too.
July 30, 2010, 10:41 pmLaura(southernxyl) says:
MAM, I hear you.
I enjoy having it explained to me about how women are, and then it’s all, oh, I’m not talking about you, Laura. (What the heck am I, then?)
I tend to avoid conversations about race unless I am really, really comfortable with the other person. Too much potential for misunderstanding and hurt feelings on either side.
July 30, 2010, 10:48 pmtheobromophile says:
Good points, but I have to ask: what employee, who is in her right mind, would ever air a remotely politically incorrect view on race in work? Betty’s employer could happily fire her (especially in at at-will employment situation) for making those views known; why would she take that risk upon herself?
Also, even if there is no legal liability, the amount of *(&#$ that people take for even suggesting some rather benign views is incredible. I once opined that Obama is a terrible President and was called a cross-burning, white-hood wearing, backwoods, hick racist. (No exaggeration on the words.) Some of us have zero desire to discuss any racial issue because it’s simply not worth it to have that garbage heaped on our heads. (I’ll also note that when I did work on affirmative action in law schools in 2006, no one called me a KKK member, but even opining about the state of our economy is now a cause for that. What changed?)
July 30, 2010, 10:50 pmalkali says:
Here is a copy.
July 30, 2010, 11:09 pmleo marvin says:
That’s right, which is why this:
isn’t. Unless you think “the left” consists nearly unanimously of ideologues. Of course ideologues are overrepresented in comment threads generally, and echo chamber (DU, FR) comment threads especially. But as I thought you were agreeing, DU and FR aren’t “the left” and “the right.”
July 30, 2010, 11:49 pmwhit says:
yes, that was implied. by the “left”, i mean the extremists, the ideologues, etc. the type that gravitate towards DU, FR, and feministing.
and sadly, if duke is any indication, a very substantial portion of liberal arts professors at that university (and god knows, others) fits solidly in that demographic. mebbe somebody can pull up the link . iirc, it was a substantial group of faculty, and of course heavily skewed towards the “social sciences”, where one naturally finds ideologues.
July 31, 2010, 12:33 amA national discussion about race “around water coolers”? says:
[...] way to get the employer sued, Mr. President [Volokh, with much interesting discussion in the comments section about the workings of [...]
July 31, 2010, 1:06 amMalcolm Smith says:
It hasn’t quite got that bad here in Australia, but it is nevertheless the case that our political class watch closely what theire counterparts in the U.S. do. Any stupid and socially destructive policy which they get away with in America, will eventually tried down here.
July 31, 2010, 1:42 amThat was why, when some consultant was brought in to talk to us about inappropriate behaviour at work, I several times spoke up and stated forthrightly: “This policy is totally unacceptable. We do not give up our freedom of speech as soon as we arrive at the office.”
This sort of thing must be nipped in the bud.
So, to use Mr Volokh’s example, if the boss came and castigated Betty for what she said to Alan, surely the proper course of action would be for her to call her colleagues together and let both the boss and Alan know that their behaviour is unacceptable, and will not be tolerated. If they belong to a union, the union should also be put on notice to stand up for them.
One of the problems affecting modern democracies is that we are too ready to let governments tell us what to do.
G-Veg says:
I don’t know what our President was specifically suggesting – if it was intended to be a specific suggestion at all. President Clinton went farther out on a limb to get a discussion started. I didn’t take part in any of those sessions and I don’t remember the MSM following up on them so I can’t comment as to how national discussions of race would or could work. (My guess would be that those who attended were deeply invested in particular causes and, so, were willing to assume the labels that would be assigned to them based upon their statements in the forum.)
What I really wanted to comment on is the descriptions of the workplace above.
I think that the present environment is one of “guarded cliques.”
People talk about politics, their relationships, family life, and, particularly, about management all the time. However, they do so with a small group of like-minded persons and there is a general rule in the office space that that which is confined to the cliques cannot be shared outside of it. There is even an overlapping of cliques – situations in which a person is part of two or more cliques.
The key is that the cliques are very narrow. They aren’t “black” or “gay” and excluding persons that, to the outside, would “fit” in a particular clique is normal. It should be noted that being or not being part of some clique seems to have no relationship to the formation of one-on-one relationships to other people at work. (This is the only aspect that is different than high school.)
The other thing that strikes me as odd is that so many commentors have hinted at without saying that the cost to the alleged perpetrator in any allegation of harassment is career ending. EVEN IF you are completely exonerated, you are too badly damaged to continue advancing in your career. Knowing this, smart employees are absolutely paranoid about being misunderstood, some employees intentionally cause great harm to their organization with their frivolous claims, and managers are absolutely draconian in their response to any perceived offense.
July 31, 2010, 5:41 amKen Arromdee says:
It can get you fired (or if you are an employer, get lots of bad publicity that can seriously cost you) and make you lose lots of money paying for your defense. Whether it permanently ends one’s career or not, that’s still pretty bad and plenty to lead to what you describe.
You’re probably right that it won’t permanently end your career unless you’re a politician or such. But it can reduce your career prospects a lot. Imagine one of the Duke students accused of rape trying to find a job now, with all the feminists out there still believing that they’re guilty, and some of them in positions to keep them from getting hired. This is especially bad in the age of Google.
July 31, 2010, 9:52 ambyomtov says:
Lugo,
Obama was not calling for a genuinely truthful discussion of those divides. When the Left calls for a “discussion” about race, they mean they should do all the talking, while the Right stands there and listens quietly while feeling guilty.
You are wasting your time commenting here. Given your incredible mind-reading skills you should be at the poker tables, raking in the dough.
Do I need to call myself Sarcastro for you to get it?
No. But trying to be clever works better if you actually write something clever.
When he said, “around kitchen tables… and in our schools, and with our kids all across the country” what he meant was that Leftist teachers would indoctrinate the kids with the Correct attitudes about race, the kids would repeat these attitudes to their (racist) parents, and the parents would be too uncomfortable to contradict or correct what the kids had said. And thus the Leftist view would prevail.
Again, take it to the poker tables.
July 31, 2010, 11:32 amElliot says:
Neither does he. It’s all boiler plate formula churned out by rote. That’s why we should ask him exactly what discrimination and prejudice he references. Show me.
Note how anxious he is to talk about race and the Black Panthers? The justice department is not even allowing its people to speak.
July 31, 2010, 1:36 pmA. Criminal says:
Surprised? At least he seems to be aware that “Affirmative Action” is nothing but racial discrimination, but it’s a *complete mystery* to me why he supports that kinda stuff and then apparently complains about it. He must be a very deeply spiritual individual.
July 31, 2010, 2:33 pmJoseph Slater says:
(1) Enjoyed (and at least mostly agree with) the back-and-forth between Sarcastro and Whit.
(2) Tend to think the “water cooler” mention was metaphorical or just a part of a laundry list of places people gather, rather than a real call for folks to engage in intense discussions of race at the workplace.
(3) Used to practice employment discrimination, now teach it. Sure, some folks bring weak cases. That’s partly a result of the U.S. lacking the general just-cause discharge rules that exist in pretty much all other industrial democracies — for most folks, there won’t be any other even faintly plausible theory to challenge a discharge they perceive as unfair. And yeah, employers fear litigation costs as well as losing cases.
On the other hand, what you don’t hear so much about on this blog is the fact that there still is a great deal of discrimination in the workplace on the basis of race and sex. And some of that takes the form of truly vile harassment. We’ve decided as a society that we want a legal remedy for that — correctly, in my view. Because while it can be unpleasant and expensive to be falsely accused of discrimination, it can be unpleasant and expensive to be discriminated against on the basis of race or sex. So, plaintiffs sometimes bring weak cases. And employers sometimes get away with outrageous practices.
July 31, 2010, 3:34 pmChrisTS says:
whit:
No doubt some mere ideology was at work with some of the academics at Duke. However, it is useful to keep in mind certain matters specific to that case: Duke has a long-standing town and gown problem based primarily on race and class.
And there are other factors that have nothing to do with politics in the usual sense: notably, that most academics are uncomfortable with fraternities and with privileged (and expensive) athletic programs. The problem of sexual abuse associated with both frats and male athletes created a perfect firestorm in the Duke case for many of those professors.
July 31, 2010, 7:39 pmDavid M. Nieporent says:
I think you’re missing the point. Nobody is suggesting that a single water-cooler conversation about racial issues will be deemed (actionable) racial harassment. Hell, even a single racial epithet is unlikely to be deemed actionable racial harassment. The point is that by design, liability comes from aggregating a lot of incidents which by themselves don’t add up to actionable racial harassment. So it’s no response to say that courts don’t find such water-cooler conversations to be harassment; they can form part of a case for harassment. And since there’s no bright line for when one has crossed the line from individual incidents to an actionable hostile work environment, no one who actually graduated from law school would ever let his corporate client have anything other than a zero tolerance policy.
July 31, 2010, 8:55 pmGaryP says:
Obama was just talking his book (as they say in investing)
July 31, 2010, 9:26 pm“Healing the racial divide” is his schpeel to get the moderate whites to vote for him to assuage their guilt. “Anyone who opposes me is a racist” is used to rally the faithful and the professional victim class. Obama’s entire career has been about manipulating people using race. It has made him wealthy (and President) without actually doing anything.
Discussing race is pointless. If you wish to do something for race relations, smile and be polite to everyone you meet. Treat co-workers politely and respectfully, learn about their families, remember what is going on in their lives, and, if they need help, be helpful. Treat everyone the same way.
Sharing politically correct opinions around the watercooler is BS and only self-important blowhards (such as the academics in the Duke case or politicians) trying to make themselves look good indulge in that.
Either you live your life so that all the people you interact with can see that you consider them to be fellow human beings whose lives, hopes and needs touch and concern you, or you don’t. Anything else is meaningless posturing. Don’t talk about race, act by treating your fellow man as you want to be treated, all of them, every day, every one.
Shut up about how “unprejudiced” you are. If you live that way, everyone around you will know it. If you don’t, you’re just a blowhard trying to make yourself look good to people that don’t know you.
whit says:
except the point that made it clear it was about ideology is that people who normally scream “innocent until proven guilty” etc. and rail about the innocence project, the wrongly accused, the criminal justice system in general, not only assumed these boys were guilty, but they did so while ignoring metric assloads of red flags that casted significant doubt on the accuser’s story.
even in a “normal case” where there weren’t all these red flags, they would have been premature. in THIS case, they were simply bigots. white privileged jocks = guilty.
do you honestly think if three lower class black men were accused by a privileged white woman of raping her, that they would have been so quick to accuse?
second of all, not only did they jump to this conclusion, but they were willing to do it very openly and publically via their stupid manifesto
that is a hell of a lot of hubris, ideology, bigotry, etc. even for a big place like duke
August 1, 2010, 12:10 amwhit says:
i would hope these guys have no problem finding jobs (or at least no more problem than anybody else with similar skills).
they handled themselves honorably, and bent over backwards to cooperate with the investigation and prove their innocence to that criminal (as far as i am concerned) prosecutor nifong.
dealing with adversity, and handling it with dignity is a sign of character and i hope prospective employers see that.
i also think the duke women’s lacrosse team deserves a lot of respect for sticking by their fellow lax players
August 1, 2010, 12:18 amRick H. says:
Obama is full of bull. Normal people aren’t obsessed with race like the typical liberal democrat. I’ll talk about whatever I want to talk about.
August 1, 2010, 8:13 amAKD says:
If you have a small company in the suburbs in most places outside of the South, you can get away with never hiring a black person. (The government cannot impose a hiring quota for a firm with, say, 15 employees in a location that’s 5% black.) But if you hire a black person you know that firing him (or even not promoting him), for whatever reason, can get you sued for racial discrimination — whether or not he has ever heard some plausibly offensive comments around the water cooler. The economic and social costs of such a suit mean, sadly, that the current legal structure, designed to protect the economic rights of minorities, is the one thing that might tempt a rational business owner or manager to discriminate against minorities in their hiring. I do not have a solution to this problem.
August 1, 2010, 8:15 amwillis says:
Generally, whites are racist and only oppose the leftist agenda out of racism.
August 1, 2010, 8:29 amJim says:
I cannot believe that on a libertarian website no one seems to have a problem with the idea of the state dictating what is or is not correct thought. Really? No one finds this to be outrageous and EVIL:
“As one Sixth Circuit decision put it, “In essence, while [harassment law] does not require an employer to fire all ‘Archie Bunkers’ in its employ, the law does require that an employer take prompt action to prevent such bigots from expressing their opinions in a way that abuses or offends their co-workers. By informing people that the expression of racist or sexist attitudes in public is unacceptable, people may eventually learn that such views are undesirable in private, as well. Thus, Title VII may advance the goal of eliminating prejudices and biases in our society.”
You people support this? Disgusting.
August 1, 2010, 9:04 amMike G says:
Yeah, I’d say expressing my actual opinions about how an impressive-seeming black guy can be promoted steadily ever upward in our society, from Sidley to Chicago politics to the presidency, while never really accomplishing anything or having a clue about what really goes on in a workplace, would be enough to get my ass fired and possibly prosecuted for a hate crime. Thanks for the great advice, there, Barry. If you’d run so much as a Dock’s Fish franchise for two weeks, you’d know better than this nonsense, MR. PRESIDENT SIR.
August 1, 2010, 9:52 ammac says:
AKD nailed it in one. I have heard employers state bluntly that they would never hire a black employee because they could not afford to take the chance he/she might turn out to be a bad hire. They knew that if they hired a black they were stuck with them no matter how poor their performance because any attempt at termination would most likely be met with a racial discrimination lawsuit.
It was safer and smarter to just not go there. I suspect most small business owners think the same way as they understand they cannot afford Pyrrhic victories. Law of unintended consequences strikes again, eh?
August 1, 2010, 9:56 amjosh says:
I’m all for precision, but this is WAY to literal a reading of what he said.
August 1, 2010, 10:56 amSarcastro says:
[I daresay the racial anger I'm seeing here does mean we need a discussion, though perhaps not in the workplace.]
August 1, 2010, 11:01 amLaura(southernxyl) says:
I terminated a black direct report back in Memphis once, for falsifying data. She filed for unemployment and the company opposed it. I had to go to the labor board. Interestingly, she and I told the same story – she simply didn’t see a problem with what she did (fudged a number on a data sheet, signed off on it, left it on my desk, and “meant” to tell me about it later; it was an accident that I knew it was fudged at all). It was a black hearing officer who heard us out. From his body language I could see no sympathy for her; and in fact, she lost her case.
My husband’s boss, also in Memphis, hired a lot of minimum-wage people for entry-level work and had to let a lot of them go, including black folks. He had many EEOC grievances filed, and never lost a single one because he documented everything. He also had a lot of productive black employees.
It simply is not true that you can’t fire a black person for any reason. It’s not, it’s a paranoid thought whose purpose is to justify discrimination in hiring.
August 1, 2010, 11:31 amandycanuck says:
I wonder if any George Jeffersons will ever be fired?
August 1, 2010, 11:51 amleo marvin says:
Yeah, what good’s an African president if he can’t fix the race problem by shutting up about it?
August 1, 2010, 12:48 pmMike G says:
Laura(Southernxyl)– I have to say I’m a bit surprised that your experiences getting hauled in front of some tribunal on a regular basis left you with the conclusion that it’s NOT a real problem…
August 1, 2010, 1:44 pmPacRim Jim says:
The whole argument about arguing about race creates a hostile environment. Look for meta-lawsuits.
August 1, 2010, 1:47 pmrenminbi says:
Why even have anti-discrimination laws? All this has done is create much mischief. Well it is wonderful for lawyers.
August 1, 2010, 1:56 pmBen says:
It’s really a lot more than that. Racism is the key to modern leftist thought. If leftist policies hurt people, it’s OK because the other side can be labeled “racist”. If you’re losing an argument, “racist” is the key word to use to shut the other side up (if they refuse to shut up, just keep saying “racist” instead of continuing the debate). When you’re not getting exactly what you want, say it’s because someone is a “racist”. Saying “racist” is an all-purpose tool to a leftist.
Leftists’ actual views on race are deplorable and harmful. Leftists believe non-whites (and usually non-Asians) can’t succeed on their own and need a (usually white) leftist champion to protect them. Among other things, this effort involves leftists exempting these folks from the practical and societal rules that everyone else is expected to follow. Failing to follow these rules is disadvantageous and often leads to poverty, so leftists are actually harming these folks. But don’t disadvantaged and harmed folks need a champion?
Racial strife is empowering to leftists, and they do what they can to encourage it and to divide people along racial lines. If people aren’t divided, the “racist” label rings false and there’s not much for a champion to do.
August 1, 2010, 1:58 pmDas says:
I agree with GaryP you don’t counter racism with more racial talk; you counter racial hysteria with more life; treat all people with courtesy and respect. As the white half (dad) of an interracial couple and a black son (adopted) I can assure you that most of the outside daily irritating stuff that blacks complain of about white folks goes the same way when you reverse the mirror. I have special sympathy for young black cashiers at the stores in our high-percentage black part of town. After I pay they often turn from me to my son to ask, “May I help you?” He’s ten now but that was really weird when he was 6 or 7. It was even weirder when I would buy something obviously for him like a bright yellow toy truck. What to do? Shout for the store manager and make a scene about extreme racial insensitivity? Of course not. I’ve learned (I’m a slow learner) to preempt it all by announcing loudly, “he’s with me.” I have lots of stories like these but most end with a smile. Those that don’t, O well. I think in time we’ll lick the racial fevers the country goes through and we’ll be stronger for it.
August 1, 2010, 2:14 pmDavid M. Nieporent says:
Laura, I think this misses the point. People don’t want to have “many EEOC grievances” filed against them, even if they win those grievances. That’s expensive, time-consuming, and wasteful. And while “documenting everything” may be a good idea, people don’t want to be forced by the government to “document everything,” and/or to realize one day that because they didn’t document something, they can’t fire someone they want to fire.
I’m not saying that these are the worst tragedies on the planet. But they’re expenses which are only incurred by firing someone in a protected class, which means that they’re only risked by hiring someone in a protected class. (*)
(*) Note to pedants: I know a white person can file a claim with the EEOC that he was terminated because of his race, too. But what percentage of terminations of white employees result in an EEOC claim, vs. terminations of black employees?
August 1, 2010, 3:03 pmXTeacher says:
I was a teacher at a high-minority, high-poverty school. The new Principal, who had formerly been a Vice-Principal at the school, was assuming her first position as a Principal. The consensus among the faculty was that she was incompetent. One consequence of this was that 40% of the staff signed a grievance against her. While the school district administration did nothing about the grievance, it eventually agreed with the grievance by not renewing her contract several years down the road.
Some Black teachers said that they had been getting pressure from the Principal, who was Black, to support her as a measure of racial solidarity.This may have been a factor in their not signing.OTOH, I am white, considered her incompetent, and did not sign the grievance- which I regret. At the same time, many black teachers were very vocal in their condemnation of the Principal. I doubt there was much variation in the proportions of Black, Hispanic, or White teachers who considered her an incompetent Principal. A teacher who had won multiple awards for her teaching, who was Black, got harassed by the Principal over trivial matters, which led to the teacher finding a position at another school. At the end of the school year, the district gave the teacher another award. At the ceremony, the Principal said how much this teacher was appreciated at the school- in stark contrast to how the Principal had treated the teacher all year.
While the Principal tried to make the conflict into a racial one, she was not successful. She was simply an incompetent who happened to be black. BTW, she replaced a Principal whom all teachers respected, who was also Black.[The former Principal got promoted.]
August 1, 2010, 4:53 pmSarcastro says:
Yes! This is exactly how liberals think! They’re all angry simpletons! How did you break the liberal code?! I’m mellltttinnnngggg!
August 1, 2010, 5:51 pmCatt Cantu says:
The idea of “water cooler” talks or racism can be beneficial, IF you don’t invite those who are already known to everyone as “bigoted” (you know the type…)
I worked for Flextronics, who hired us to work as “the complaint dept.” for Verizon in Wyoming.
I was a bit older than those already employed there. I was also the only Black employee. I felt a little like an “experiment”.
However, once they got used to me and noticed that I wasn’t the “scary Black person” they expected, things became easier. They got comfortable enough to ask questions, and even tell jokes, some of it racial, some downright blue. I laughed with them, knowing they were just being themselves, curious and questioning. I didn’t see animosity from any of them.
Except one. SHE made remarks that had nothing to do with ribbing, about me (to my face) and customers (after they’d left). If transsexuals came in, she made nasty, religious-based comments. Called one Asian customer a “chink”, a family of Middle-Easterners “Taliban-Iraqis”, and so on. With her, minority customers didn’t get the “courtesy” breaks we were allowed to extend to people who had extreme problems.
She’s still there; I’m not.
My point is: There is a right way and a wrong way to talk of diversity and race relations at work. I felt comfortable answering questions my coworkers had about “black culture”, including stereotypes. I felt somewhat like a teacher AND a student. Except for that true bigot, it was a great job for me.
I understand what Obama was saying. Its important to get the discussions underway, find the underlying concerns and air them out with intelligence and fairness. There is no need for the uninformed animosity and bigotry some carry around, just waiting for a non-white or non-hetero to cross their paths.
August 1, 2010, 6:04 pmJohn says:
Joseph,
I’m curious about the just-cause discharge rules you mention. Would give a brief explanation of what you mean by them and how they would be preferable to current practice?
August 1, 2010, 6:10 pmBen says:
Mock as you wish. If you think my description is false, please explain how leftists would act differently if it were true. If you don’t think non-white folks need a champion, then what’s the explanation for affirmative action policies and minority set-asides in government contracting? Are you claiming leftists are against race-based policies to benefit minorities?
If you don’t want to be grouped with angry simpletons, don’t agree with them.
BTW: I don’t think leftists are angry simpletons. I think leftists are greedy, self-absorbed, amoral, power-hungry, hateful people. Championing minorities is a tool to elevate a leftist’s own view of himself, justify absolutely any behavior, gain power and wealth, and hate the enemy of the day. The enemy of the day is usually someone with money that the leftist covets.
August 1, 2010, 7:02 pmSarcastro says:
[blacks and women still make less money than whites for the same work. What's up with that?
That being said, the folks in admissions I talk to speak to diversity as a virtue in and of itself, and not as a way to champion black people.
As for what you think about leftists, you are wrong. The way I know is that the leftists I know are not moral monsters, just as the righties I know aren't. Though some do confuse the correctness of their cause with a monopoly on virtue.]
August 1, 2010, 7:24 pmMike G says:
“The idea of “water cooler” talks or racism can be beneficial, IF you don’t invite those who are already known to everyone as “bigoted” (you know the type…)”
The idea of a discussion can be beneficial, if you don’t invite anyone who doesn’t already agree with you.
August 1, 2010, 7:34 pmElliot says:
I think you are making the point that firing a black requires more time and resources.
August 1, 2010, 8:03 pmElliot says:
“The enemy of the day is usually someone with money that the leftist covets.”
Perhaps their problem is people value a plumber more than someone with a MA in social work or French Literature?
August 1, 2010, 8:07 pmLaura(southernxyl) says:
Elliot, a lot less time and resources than not hiring them and having an entire unemployed underclass in your city. You have to give people a damn chance. Besides, what about all the good employees you miss out on if you never hire a black person?
BTW, the person I went to the labor board about didn’t file a grievance based on race. She simply thought she shouldn’t have lost her job over falsifying data. You all are acting like the fact that she was black meant she should automatically have won it. The other person whose unemployment claim I’ve had anything to do with was white. She lost hers too.
August 1, 2010, 8:32 pmleo marvin says:
I won’t say “FIFY,” not just because it’s obnoxious, but because I don’t believe this version any more than I believe yours. But I do know people who believe each of them. Following on Sarcastro’s observation, I’m amazed by the arrogance it takes to angrily claim moral virtue divides neatly along such conveniently self-serving ideological lines. FYI, that’s bigotry.
August 1, 2010, 8:37 pmFat Man says:
When you are at work, you are not among friends. Nobody among your co-workers wants your honest opinion about anything. Not even about their work responsibilities. Especially not about not about their work responsibilities. Although comments like “please stop standing on my foot” are appropriate. Furthermore the last thing your boss wants is controversy or even a hint of disagreement. My brother runs a billion dollar company. His slogan is “show up, put up shut up”.
A word to the wise should be sufficient. “Lose Lips Sink Ships”.
August 1, 2010, 10:02 pmspostrel says:
Joseph Slater has confessed that he used to practice employment discrimination! Now he teaches other people to do it, too! Quick, call CNN or Fox!
August 1, 2010, 10:06 pmTantor says:
I learned at my new company’s orientation from a PowerPoint slideshow about the harassment policy that only 12% of complaints were male against female. That means one out of eight complaints are male vs female which means seven of eight are female against male, which means that females complain against males seven times as often as vice versa.
I knew the corporate environment was hostile to men but here was the metrics to prove it. The corporate system is rigged against men, promoting complaints against them while suppressing complaints against women.
You’d be insane to talk race at the office, which is far more incendiary than gender politics. The politically correct gender and race bigots of corporate HR would hang you out to dry. They’re looking for white males to harpoon.
August 1, 2010, 11:47 pmSarcastro says:
[Though you gt paid more for the same work in recompense your trouble]
August 2, 2010, 1:04 amG-Veg says:
Sarcastro,
The generalized proposition you state – that men are paid more for the same work – is one that continues to bug me because I have no idea how valid it is or even what it actually means.
In government service, there is a strange dynamic in which high-level female managers have been selecting mostly women for first – level manager jobs for many years. Of the last five directors, four have been female. At present, of the 14 managers in the district, there are three men.
A fellow employee brought this up at a mandatory Employment Practices course and was told by the trainer “discrimination laws weren’t created for people like you, they were created for those of us who have suffered discrimination for centuries.” (He is close-to-retirement man and is white. For the record, that he had been passed over so many times may have been a good thing and may have had nothing to do with his gender. It is the interaction between instructor and student that interests me.)
It strikes me as unlikely that men and women in precisely the same positions are paid differently in this hyper-sensitive age of litigation. It seems more likely that women are likely to take long leaves of absence and, so, gain tenure, seniority, and work credits more slowly. Thus, a man and a woman who begin together are at a different non-supervisory place ten years later if she takes a three-year absence from work for, for example, having a child. (I am not debating the choice to stay at home. My wife made that choice and it will cost her in the workplace promotion and pay increase. It is a choice but choices have consequences that have nothing to do with discrimination.)
August 2, 2010, 5:44 amSarcastro says:
[Yet blacks are paid less for the same work too, which obviates the idea that having children can be the sole explanation for demographic income disparities. This suggests that despite litigation fears, some actual discrimination remains in the system, whether conscious or unconscious. Look a the Ledbetter case.
However, even taking your claim as true, Trantor's claim that white men are the victim in the corporate system is pretty weak. The fact that women file more complaints of men might be because they have more to complain about, or because they are the sort to avail themselves of the system more often, or a whole host of reasons that do not involve white males being the victims.
There seems to be a growing sentiment that white males have it rough somehow. "that's it. I declare myself black. It seems easier." "I'm going to apply for a greencard - being a noncitizen seems easier." "Obama is a racist who is taking money from us whites to give it to the blacks." Just cause claiming to be the victim is fun doesn't make it true.]
August 2, 2010, 6:46 amDavid says:
Sarcastro,
I do not claim to speak for anyone other than myself.
In my experience – and I have been passed over once now in favor of a female candidate – discrimination in hiring and promotion is often mischaracterized as the selection of an unqualified candidate over a qualified candidate on the basis of an unlawful or, at least, unfair evaluation of immutable traits. I expect that this is rarely the case.
In my case, the woman selected is qualified for the position she holds. She has significant experience, is knowledgable and driven to excel. In the cases of all of the other selections of women that I have seen, I believe there is at least a colorable claim that the selected persons were qualified. In many ways, it is this situation that makes discrimination so difficult at this point.
If one is passed over in favor of a truly qualified individual, it is likely to be very difficult to win a discrimination claim. Not so if one is, at this point, passed over in favor of an unqualified person. The discrimination is much more subtle and, therefore, much harder to root out. Indeed, I am suggesting that the subtle discrimination of this age – the prejudice that splits us into cliques along income, cultural, religious, and gender lines – is well entrenched.
My point the above comment was meant to point to this seeming reality: that the open, systemic discrimination of the past has been largely addressed and now there is a broader, more subtle discrimination at work that is beyond law to effectively deal with.
One final comment: I am not aware of a single formal grievance filed by a man in my district against being passed over but know of three grievances by women for failure to be included in a management training course and failure to be promoted. I am not saying that the women filed anything other than a bona fide claim for their perspective may well be that they were discriminated against and, when it comes to this curious area of law, “perception is everything.” I AM saying that men have a general aversion to claiming discrimination. There is a solid social stigma attached to male complaints and a general perception that the law will ultimately find against us. Not having done any research on the topic, I do not know if my perception is boarn out by any studies. It is my perception that this is true and, I would suggest, adding this perception to the reality that one is passed over in favor of a truly qualified candidate, that men don’t file complaints shouldn’t be taken as any sort of evidence that there is no bias in favor of women in hiring these days.
August 2, 2010, 7:31 amSarcastro says:
[David, both your points seem reasonable, if, as you said, opinion.
Even if, as you say, overt, legally actionable discrimination is largely eliminated, that does not mean that we don't need the laws there for preventative reasons.
As to the operation of the law, I could totally see there being some truth to the stigma idea. Though again, I don't think there is a good legal remedy for a group refraining from availing themselves of the law. Perhaps education some high profile cases could change that attitude.
Clearly there are some costs to the current system, but the same is true of tort law. And, while many advocate for reform of tort law, no one I know wants to eliminate the system. I have a similar idea with respect to discrimination law.]
August 2, 2010, 7:52 amA. Criminal says:
I noticed it – and thought it was pretty slimy – but didn’t react much because judges are statists and therefore believe and write a lot of silly things.
It’s only true in the sense that people with fewer qualifications, less work experience and who work fewer hours are paid less. This has been documented to death, and the ignorance of the mini-Kos crowd you refer to is irrelevant.
August 2, 2010, 10:47 amBen says:
The folks in admissions have read the script then. They recite the lines without slipping out of character. Maybe the audience will forget it’s not real. For a while anyway. Be careful not to give away the ending.
They’re always happy to steal their neighbors’ money though. They love creating new rules and forcing the rest of us to bend to them by force, with violent reprisals and ruin for he who might disobey.
The hatred at the core of leftism — hatred for Christians, businessmen, Texans, executives, SUV drivers, anyone who makes a profit, Israelis, people who work at insurance companies, soldiers, bankers, boy scouts, and 1000 other categories of enemies — isn’t monstrous or amoral? Why not? Because it’s also part of the script? Maybe it’s just another part of the performance — meant to keep us from noticing what we’re all paying for tickets.
August 2, 2010, 11:22 amJoseph Slater says:
The U.S. is pretty much the only industrial democracy where “at will” is the default rule (meaning an employer can hire/fire for any reason, many bad reasons, and doesn’t have to give a reason). Of course the U.S. has a number of modifications to the at-will rule, Title VII being one of the biggest, listing specific “bad reasons that are also illegal” to fire somebody.” But for folks under the at-will rule (most private sector employees), the employer doesn’t need a “good” reason to fire someone.
In most other industrial democracies, “at will” has been replaced by a default of “just cause” — to legally fire someone, the employer must have a good reason. Specific rules and penalties for violating the rule vary country to country, but that’s the general idea.
My point wasn’t that just cause is generally a better system than at will. My point is that one of the reasons some people bring weak Title VII claims in the U.S. is that they don’t have general just cause protection. Say you’ve been fired, you believe unfairly, for a bad or stupid reason and you tell a lawyer that. If you’re covered by the general at will rule, you have no claim. But, if you can show you were fired because of your race, sex, religion. . . .
A general just cause regime would, IMHO, cut down on weak Title VII claims, because the employee in the above scenario would be able to argue “there was no just cause to fire me,” and wouldn’t have to try to fit his/her case into Title VII.
Beyond that, just cause regimes have advantages and disadvantages, but that’s a bigger issue than I want to get into here.
Finally, let me stress again that while you wouldn’t always know it from threads at the VC, there is in fact a great deal of real, and often quite gross race and sex discrimination at the workplace in America today.
August 2, 2010, 11:49 amJoseph Slater says:
Hmm, I was kind of hoping for ESPN.
August 2, 2010, 11:53 amJoseph Slater says:
For those concerned that men, whites, and/or white men can’t win discrimination claims, the last time I checked the stats, (1) plaintiffs in age discrimination claims had a much higher win rate than plaintiffs in race or sex discrimination claims, and (2) plaintiffs in age discrimination claims were overwhelmingly white men.
August 2, 2010, 11:57 amSarcastro says:
[I have an issue with the premise of you question sir. See, I know a lot of liberals, folks way to my left. And they're not motivated by hate or animus or even guilt.
Needless to say, anything they say or do that might be proof of this you will dismiss as 'following the script.' Speaking of hate, or at least anger, you don't seem to be a very happy dude either. You might try not assuming your fellow men have evil motivations. Works wonders for me!]
[I believe the studies control work experience, education, occupation, tenure, and hours worked. Wikipedia links to a study that claims "women continue to earn less, even after controlling for characteristics thought to influence productivity."
There is still work to be done on the race and gender equality front, though one may still argue about the means.]
August 2, 2010, 11:59 amVirginia says:
A general just cause regime would, IMHO, cut down on weak Title VII claims, because the employee in the above scenario would be able to argue “there was no just cause to fire me,” and wouldn’t have to try to fit his/her case into Title VII.
This is sort of like arguing that cutting off your hand is a way to eliminate the pain of a hangnail.
August 2, 2010, 12:13 pmJoseph Slater says:
Virginia:
Again, I wasn’t advocating for a general just cause regime. Although again, almost all other democracies have it. And you could make an argument that a general just cause regime would be easier and simpler than the current system of “at will default with a million exceptions, some big, some small, many fairly vauge.”
August 2, 2010, 1:38 pmJoseph Slater says:
P.S. Heck, the great state of Montana abolished the at-will presumption over a decade ago.
August 2, 2010, 1:39 pmElliot says:
Nobody seesm to care that a female 45-year-old third grade teacher with 20 years experience is paid more than a female 45-year-old third grade teacher with ten years experience. Why not? Isn’t that unfair? Equal work, equal pay?
However, they do complain if a male 45-year-old engineer with twenty years work experience is paid more than a female 45-year-old engineer with ten years work experience who took a total of ten years off to raise kids.
August 2, 2010, 3:29 pmElliot says:
It might be from a legal perspective, but an employer would probably change his hiring practices. If I’m stuck with a hire, that increases future risk that I will be saddled with adequate employees when I am trying to build a group of exceptional employees.
(Would “just cause” mean law firms would be stuck with all the associates who don’t make partner?)
August 2, 2010, 3:42 pmJoseph Slater says:
Elliot:
(1) As to your two hypothetical comparisons, in the first case, I think the teacher with more experience certainly would care. And others might too. But that person probably wouldn’t have a legal claim. The reason we have a law barring sex discrimination in employment is a long history of discrimination on the basis of sex in employment (as opposed to a history of randomly giving otherwise-similar people with less seniority better pay). Of course, even in your second hypo, the woman who took ten years off probably wouldn’t have a good legal claim, because discriminating on the basis of experience, skill, and even senority is not discrimination on the basis of sex and is entirely legal.
(2) Re the effects of “just cause” on employers, we don’t have to speculate, because again, much of the world and even large swaths of the U.S. economy use the just cause default rule, not at will. So you could see how various types of firms in Europe and Canada operate. As to your question about hiring practices, it would probably depend on the type of “just cause” rule: many, but not all, have some form of “probation” period in which the employee can, in fact, be fired without a showing of cause; just cause rules kick in a year or two into the job.
Finally, again, my point was not to defend (or attack) just cause rules in general. I only wanted to say that to the extent there are weak anti-discrimination claims brought, you almost certainly get more such weak claims in an at-will system than in a just-cause system.
August 2, 2010, 4:28 pmlls says:
The water cooler conversation,as opposed to a comment string,hmmm? Seems to me that the conversation is always highkacked by too many insensitive perspectives from all sides. It’s sad that knowbody listens in an effort to grow the conversation into something pratically sound.
August 2, 2010, 5:45 pmCatt Cantu says:
If you mean that I wouldn’t allow people who are dead-set on insisting that non-Christians, non-whites or non-heteros are entitled to equal rights in employment and everything else every other citizen (read: white Christian) enjoys, THEN YES!
People who are confused or curious, by all means. If the known bigot in the group can discuss with intelligence and TRUTH in any opposition, then okay. (“Gays bring AIDS” is an example of ill-logic in this group.) But including, say, devoted members of the Westboro Baptist Church in discussion on how to make a gay ex-soldier feel welcome and comfortable as a new employee… not a good idea.
By the very nature of their unwillingness to treat all as equal, bigots and racists exclude THEMSELVES from meaningful dialogue.
And if you want to discuss my current EEOC complaint against Flextronics/Verizon Wireless for racial discrimination, ask your questions.. I’ll be honest.
August 2, 2010, 5:49 pmBen says:
Then how do they decide whose money they want to take? And how do they justify taking it by force? I’ve never heard a justification of normal leftists’ greedy money grabs without some sort of hatred or other reason the victim is somehow second class and therefore deserves to be stolen from.
Maybe your leftist friends are the ones who go out of their way to be fair to oil companies and drug companies and insurance companies and the people who work there. Maybe your leftist friends are the ones who were out there giving George Bush the benefit of the doubt on things. But somehow I don’t think so.
This is not about me. I call them as I see them. People who repeatedly do evil can eventually be assumed to be evil. Pretending they have good motives while they hurt people is just a fantasy. Willful blindness to evil is hardly a virtue.
August 2, 2010, 11:15 pmSarcastro says:
[My leftist friends and family do not give Bush the benefit of the doubt. They treat him as you treat liberals - as the enemy, as evil. According to them, Bush's threw the lives of the poor away in wars and by neglecting the things they needed to survive. He did this to funnel money to his Haliburton and other corporate buddies. I don't buy that madness - I think he meant well and did what he though was best for security and for society. I disagree, but so what? (Though I do judge Bush on the torture issue.) My liberal friends are just as unhappy as you that evil continues to exist.
As to your premise of liberals taking people's money "by force," that isn't liberal, that's taxes. Taxes are justified cause society needs them to function. Conservatives, even libertarians understand the necessity of taxes. If you think that the degree of taxes liberals want cross the line into evil, that's pretty arbitrary. Sweden had an over 100% tax rate for a while, and they don't seem evil at all!
The idea that society has a responsibility to it's members may be wrong, but it is not evil, nor is it greedy. You can go about assuming the worst in people, or you can figure out why they think what they think.]
August 2, 2010, 11:53 pmJohn says:
Thanks for the response. I would agree that introducing a just-cause rule would decrease Title VII claims, though I suspect it would be made up by a larger increase in just-cause claims. My understanding was that at will employment in the US was decreasing. Per Wikipedia a majority of states have the implied contract exception and 11 have begun to use a “implied in law contracts” assumption which is similar in practice to just cause. I would be curious to know how those states differ in Title VII claims.
As to your final point, I would agree that there is a substantial amount of abuse [including sex and race discrimination] occurring in work place environments. Like many things in life, these laws attempt to balance providing a remedy for that abuse while not impeding lawful employers from making optimal business decisions.
August 3, 2010, 2:46 pmJoseph Slater says:
John:
I agree with almost all of what you say. One quibble: I don’t think implied contract theories have gotten rid of at-will, because even in states that have accepted these claims in their broadest/vaguest form, most employees still won’t have enough stuff (language in a handbook, statements from employers, etc.) to form even an implied contract. In fact, most employers are sophisticated enough to write “YOUR EMPLOYMENT IS AT WILL” somewhere.
Having said that, we do have a LOT of statutory and common law exceptions to at-will. When I teach this subject, I often say that both sides are unhappy with the U.S. regime. Employers are unhappy that there are so very many exceptions (certain specific bad reasons to fire people that are made illegal by statute or common law). Employee advocates are unhappy because most of these exceptions turn out to be pretty narrow and/or pretty hard to prove.
Interestingly, surveys of both employees and employers indicate that majorities in both groups don’t believe the default is at-will: indeed, majorities in both groups believe that generally the law requires employers to have a good reason to fire someone.
August 3, 2010, 3:51 pmBen says:
If my friends and I break into our neighbors’ houses and steal money to buy ourselves something we want, it’s evil.
If we hire a politician to “tax” the same money from the same people to buy the same stuff, then it’s perfectly OK? So if we hurt people using a certain specific procedure, then right and wrong don’t apply. It’s an all-purpose “get out of morality and decency free” card. (Since this is your thought process, I don’t understand why you wouldn’t be happy with torture. It’s the government doing the torturing. The “get out of morality and decency” card should work for that too, right?)
No. Taxes for unnecessary spending, for charity causes, and for direct transfer payments to individuals are simply theft. If someone wants to buy a luxury item, give to a charity, or pay grandma’s rent, they don’t need the government to do that. The only reason to involve government is to steal from other people so you can spend money you didn’t earn, against the will of the people who did earn it.
(There are some judgement calls on what’s necessary and what isn’t. But they don’t matter until most of the obviously-wrong spending in every other category is eliminated. If we cut government and taxes in half, then it might be time to take a second look.)
August 3, 2010, 10:58 pmSarcastro says:
[So if spending on something is unnecessary according to you, it's evil to disagree?]
August 3, 2010, 11:20 pmBen says:
Taking money from innocent people, by force, against the will of those people, when it isn’t necessary, is morally and ethically wrong. Supporting it is also wrong.
Again, it’s not about me. It’s either evil or it isn’t, regardless of my thoughts on the subject.
But, as I said before, I call them as I see them. And I see a lot of greedy leftists who love spending others’ money, who use hatred and demonization to justify taking as much as they possibly can, and who use threats and violence to enforce and facilitate the transfer.
August 4, 2010, 1:02 amSarcastro says:
[Once you allow some taxes, it is about line drawing what is necessary. That is not an objective measure. You are defining necessity, and if someone else defines it differently, they are evil. So it is about you.
I would point out that by your definition, just about every non-failed state is evil, as they all have some sort of social safety net, which does not seem necessary under your rubric.
You seem rather out of the American and civilized person mainstream in your exhalation of the individual over any sort of societal obligation. Such an extreme position is the inverse of the Communist's elevation of society over the individual. Perhaps a moderate view is the correct one - I know I think so.
But we have to leave that discussion there, as at that point our disagreement becomes philosophical - you say that the freedom of the individual is vastly more important than the social compact, while I draw the line where that compact involves an obligation to prevent folks from dying of poverty.
The point is that to say that I must be evil because I don't adhere to your ideas imputes bad faith to me without any proof of such just because you really like your point of view. I hope by elaborating some of my philosophy, I showed you that there is something beyond mere greed that drives the many, many people to your left.]
August 4, 2010, 8:05 amleo marvin says:
Ben, if you’re still reading, a question, and I ask it sincerely: How would you know if your judgment was being skewed by a personal bias? And if the answer is that you might not know, doesn’t that argue for at least seasoning your judgment with a healthy does of humility?
August 4, 2010, 10:16 pmBen says:
Sure. What could be more humble than the government doing less and less and taking less and less away from people? How is leaving people alone not the humblest and least imposing of courses of action?
Or did you really mean something else when you said “humility”?
August 4, 2010, 10:32 pmBen says:
If you covet your neighbors’ money (to buy government goodies with), then there are more authoritative opinions than mine on the subject.
I really didn’t mention anything like that. It’s too bad a simple idea like “don’t hurt people” or “don’t take money from people by force” can’t be understood by some folks. It doesn’t come with the context you’ve put (hidden?) it in.
I’m all for you having whatever kind of society you want, BTW. Just pay for it out of your own pocket. Ask people to help you fund it if you need more. Hold a fundraiser. Take as much as is freely given. I’ll even personally contribute myself if the cause is right and the money is spent responsibly. There’s no need for government force unless you intend to victimize people.
August 4, 2010, 10:56 pmSarcastro says:
Victory!
August 5, 2010, 6:13 amleo marvin says:
As ever, wise beyond your years.
August 6, 2010, 1:58 am