Severe or Persuasive Harassment:
A surprisingly common legal concept, it turns out: "Severe or persuasive" and "severe and persuasive" appear nearly 100 times in Westlaw-searchable cases, and my quick glance at some originals suggests that this isn't just a Westlaw glitch.
The actual legal phrase, of course, is "severe or pervasive," which is what speech or conduct must be in order to create a "hostile, abusive, or offensive work [or educational] environment." "Severe or persuasive," though passes the spell-checkers and the casual eyeballing.
Almost seems to make sense til you wonder what the heck "act or control" means. Well nothing as it turns out, the standard was "active control" It was in fact a typo in a quote in one case that got repeated through a number of other cases no longer as a quote but as a statement of the rule.
A quick Lexis search seems to indicate they fixed it at some point, I am not sure when, been a long time since I did a longshore case.
Ironically, in my experience (as a defense side employment attorney), most sexual harassment is notable for its utter lack of persuasiveness. While I suppose there are a few smooth predator types who can subtly work some kind of implicit job threat/reward into their otherwise effective "rap", the vast majority of the cases I've seen are from guys who think it's a real turn-on for the object of their affection to be subjected to explicit photos or worse (groping, etc.). In fact, I imagine the pop psychology explanation would be that they're not trying to persuade the female employee into having sex with them at all, but rather acting out some other frustration. In any case, severe or not, the hostile work environment is rarely "persuasive" to the victim. So, from the employer's side, I say let's keep up the accidental change -- it's much easier to defend these cases with a "severe or persuasive" standard than using "severe or pervasive."
Isn't that tautological? If the "victim" is persuaded, she would not consider it a hostile work environment.
...hostel environment...
well played
In the SCHOOL setting, a student must show that the harassment is severe AND pervasive to recover damages, as the Supreme Court emphasized no less than four times in Davis v. Monroe County Board of Education, 526 U.S. 629 (1999).
Yet some lower courts ignore this, allowing students to recover for harassment that is pervasive but not severe (like dirty jokes that are commonplace but not life-altering), even though the Supreme Court clearly required that a Title IX plaintiff show that the harassment is severe AND pervasive, requiring a showing of severity in any case.
(Other lower courts, by contrast, properly require severe AND pervasive harassment, as the Supreme Court emphasized).
Moreover, unlike in the Title VII workplace context, where a single act of physical harassment can be severe enough for liability, the Court's opinion in Davis made clear that a single act is not enough under Title IX.
I'm honestly surprised that it only shows up 100 times. If you reverse the "s" and "v" (persavive) all of my spell-checkers suggest "persuasive" as the top (or only) fix. I guess lawyers are better typists than I have been led to believe from my admittedly limited exposure to the general law school population -- or maybe the fact that there are two letters between "s" and "v" in this case serves as a deterrent to that particular typo. If you flat-out don't know how to spell it, and put in "purvasive," all the spell-checkers I have correctly suggest "pervasive" as the fix.
Motion to discuss: The court forces you to talk about whatever is bothering the other person.
Waigl: