The Swinging Eleventh

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Burt Likko

Pseudonymous Portlander. Homebrewer. Atheist. Recovering Republican. Recovering Catholic. Recovering divorcé. Editor-in-Chief Emeritus of Ordinary Times. Relapsed Lawyer, admitted to practice law (under his real name) in California and Oregon. On Twitter, to his frequent regret, at @burtlikko. House Likko's Words: Scite Verum. Colite Iusticia. Vivere Con Gaudium.

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51 Responses

  1. Avatar Saul DeGraw
    Ignored
    says:

    Surprise surprise I agree with you.

    There needs to be a very in-depth psychological and neurological and anthropological study to see why people like the boss keep on getting into positions where they are the boss and can make their pervy comments or actions.

    I don’t even get why someone would find it socially acceptable to make such comments. Is there perhaps a chutzpah that allows people with no censorship mechanism to travel far in life?

    It seems to me that this is pretty much quid pro quo sexual harassment even if it involved the spouse and not the employee. If someone felt he or she would be denied employment, promotion, or be terminated unless arranging an indecent proposal than he or she should be allowed to file a sexual harassment claim.Report

  2. Avatar veronica dire
    Ignored
    says:

    The courts sometimes!

    Well, at the least this might pan out like the recent “upskirt” imbroglio her in MA, which a law quickly clarified, passed, and signed.Report

  3. Avatar Chris
    Ignored
    says:

    OMGWTFBBQ!

    I cannot imagine how being repeatedly asked to hook your boss up with your wife doesn’t create a hostile workplace environment.Report

  4. Avatar KatherineMW
    Ignored
    says:

    Wow. That’s incredibly disturbing. And there’s definitely something wrong with the law.

    no, that’s actually not sexual harassment.‡ Because your boss isn’t treating you any differently than he otherwise would because of your gender

    Logically, this connotes that nothing a bisexual employer does could constitute sexual harassment.Report

  5. Avatar Pinky
    Ignored
    says:

    I’d think that a decent prosecutor could do something with him offering money in exchange for you arranging sex.Report

  6. Avatar Tod Kelly
    Ignored
    says:

    I am stunned. And outraged. And furious.

    I thought it would be a months or years before I read about a ruling that would outrage me more that the MA Supreme Court ruling on the legal right of men to secretly take photos up girls’ skirts and post them online. And lookee here: the 11th managed to do it in just under three weeks.Report

  7. Avatar Mike Schilling
    Ignored
    says:

    No one’s forcing him to work there, right? If he wants a job that doesn’t include constant demands for kinky sex, let him find one.Report

  8. Avatar Guy
    Ignored
    says:

    It seems like the suit was dismissed because it was specifically about gender discrimination. Is there a way to file a sexual harassment claim that does not require gender discrimination? If so, there was probably a much better argument that could have been made. If not, of course, there is a gigantic hole in federal law wrt sexual harassment.Report

  9. Avatar LeeEsq
    Ignored
    says:

    I’m just going to join the chorus and express outrage at this opinion. It might not be a classic case of sexual harassment but an employer hinting to an employee that he’ll get fired if he doesn’t allow the boss to sleep with your wife is at very least an abuse of power.Report

  10. Avatar veronica dire
    Ignored
    says:

    Just curious, was this state or federal law? And if state law, is this a common wording and a common reading of such laws? How likely is this to happen in other states? In my state? If this is federal, how hard would it be to fix it? Here in MA we fixed the upskirt thing really fast. Can such a thing happen in this case?Report

    • Avatar Saul DeGraw in reply to veronica dire
      Ignored
      says:

      A good lawyer would write a complaint with every law that they thought was applicable and this would include federal and state laws.

      State laws on employment discrimination and harassment vary wildly.Report

  11. Avatar veronica dire
    Ignored
    says:

    Oh and I hope Mozilla doesn’t promote this guy to CEO.

    *crickets*

    Too soon?Report

  12. Avatar J@m3z Aitch
    Ignored
    says:

    Let’s posit for a moment that the judges on these courts aren’t complete and total idiots. This may in fact be a correct–or at least plausibly correct–reading of the law.* What may be outrageous here is not the ruling, but a gap in the law. And that gap in the law (assuming that’s what’s going on here) may in fact be because the defendant’s behavior is so outrageous that nobody anticipated it when writing the law.

    _____________________________
    *I don’t actually know. I haven’t read Title VII or the relevant cases closely–certainly not as closely as I would assume these judges have as a consequence of hearing this case.Report

    • Avatar Burt Likko in reply to J@m3z Aitch
      Ignored
      says:

      The good professor has a point here. The 11th’s reading of 42 USC § 2000e-2(a)(1) is more than colorable: it is, in fact, probably better read as predicating discriminatory treatment upon the plaintiff’s membership in a protected class (in this case, gender). The plaintiff’s spouse is not the victim (although she may very well be squicked out by the whole thing), and the putative harasser’s conduct is based upon the gender of the plaintiff’s spouse, not the plaintiff.

      I almost fell for it myself. Where it stumbles is a bunch of caselaw describing what a hostile workplace environment is, and unfortunately I do not have time to research and cite it at the moment. I’m thinking of the Jacksonville shipyard and the Caesar’s palace receiving warehouse cases. Suffice to say that I suspect that there is common-law support for a sufficiently sexually-charged general atmosphere giving rise to a cause of action for environmental harassment despite the absence of individually-directed conduct. So the problem was not that the panel ignored the statute, the problem is that the panel ignored the case law interpreting the statute.Report

      • Avatar caleb in reply to Burt Likko
        Ignored
        says:

        Do you have those case cites?

        From what I was able to find, the Caesar’s palace receiving warehouse case was interpreting § 2000e-2(m), and so is not directly on point. The only Jacksonville shipyard case I could find was an M.D. Florida case, so not controlling authority for the 11th Circuit.Report

      • Avatar J@m3z Aitch in reply to Burt Likko
        Ignored
        says:

        And of course I haven’t read those cases, and however colorable the 11th’s textual reading of the law might be, the actual on-the-ground meaning of the law is also determined by the existing case law, as my friend, Burt, notes. And having read none of that particular case law myself, I hurry to affirm my point was only theoretical, not meant as a definitove statement about this particular case. Which also squicks me out, badly. I think Nick Cage’s character in Raising Arizona had an appropriate response.Report

      • Avatar Jason Kuznicki in reply to Burt Likko
        Ignored
        says:

        Didn’t Crooked Timber once claim that if you’re a libertarian, you are obliged to wholeheartedly support the boss in a scenario exactly like this?Report

    • Avatar trizzlor in reply to J@m3z Aitch
      Ignored
      says:

      I think this is a fair analysis. Here’s what I took to be the relevant part from the decision:

      To prevail on a hostile work-environment gender-discrimination claim under
      Title VII, a plaintiff “must always prove that the conduct at issue was not merely
      tinged with offensive sexual connotations, but actually constituted discrimination
      because of sex.” Oncale v. Sundowner Offshore Servs., 523 U.S. 75, 81, 118 S.
      Ct. 998, 1002 (1998) (quotation marks omitted and alterations adopted). While
      Supervisor Thompson’s conduct was highly offensive and inappropriate, the
      district court did not err in determining that no reasonable juror could conclude that
      Thompson discriminated against Richardson because of Richardson’s gender.

      and the relevant portion from that case:

      Title VII does not
      prohibit all verbal or physical harassment in the work-
      place; it is directed only at “discriminat[ion] . . . because of
      . . . sex.” We have never held that workplace harassment,
      even harassment between men and women, is automati-
      cally discrimination because of sex merely because the
      words used have sexual content or connotations.
      “The
      critical issue, Title VII’s text indicates, is whether mem-
      bers of one sex are exposed to disadvantageous terms or
      conditions of employment to which members of the other
      sex are not exposed.” Harris, supra, at 25 (G INSBURG , J.,
      concurring).

      So, according to the supreme court at least, it seems like Title VII is only meant to target the subset of harassment that is gender discriminatory.Report

    • Avatar caleb in reply to J@m3z Aitch
      Ignored
      says:

      Came here to say this. From reading the opinion, and cited case law it seems that the 11th’s ruling is more than colorable. It looks like § 2000e-2(a)(1) was simply the wrong vehicle for the complaint. (And/or there is a gap in the law.)Report

    • Avatar Barry in reply to J@m3z Aitch
      Ignored
      says:

      “Let’s posit for a moment that the judges on these courts aren’t complete and total idiots.”

      I for one am not; I’m *concluding* that they are evil.Report

  13. Avatar Kolohe
    Ignored
    says:

    My outrage is much more directed at the school district for (apparently?) not canning the offending supervisor but instead seeking double damages against the man who submitted a complaint.Report

    • Avatar Kolohe in reply to Kolohe
      Ignored
      says:

      Ok, thanks to Slade’s link above, that supervisor guy is gone.

      @Pinky “I’d think that a decent prosecutor could do something with him offering money in exchange for you arranging sex.”

      Per that same link Thompson was later arrested in Richardson’s home on solicitation of prostitution charges during a Bay County Sheriff’s Office sting operation.

      So that’s exactly what they did. Good call.Report

  14. Avatar Fnord
    Ignored
    says:

    Because your boss isn’t treating you any differently than he otherwise would because of your gender, and it’s your gender, not your spouse’s, that’s at issue in a claim under 42 U.S.C. § 2000e-2(a)(1).

    Upon close examination, is that even true? Presumably he’s not propositioning female employees to get them to convince their husbands to have sex with him. It’s not ONLY gender, but I’m guessing that combining gender with marital status in another context “I only proposition my unmarried female employees, because I don’t want to encourage adultery” wouldn’t fly. Same-sex marriage is currently not legal in Florida, so you can’t be propositioning women to convince their wives to have sex with him.Report

    • Avatar Jim Heffman in reply to Fnord
      Ignored
      says:

      “Presumably he’s not propositioning female employees to get them to convince their husbands to have sex with him. ”

      Are you suggesting that women can’t marry women? How Republican of you.Report

  15. Avatar Damon
    Ignored
    says:

    The victim in this case probably would get into trouble, but I’d still recommend Dolly Parton’s lines in “9-5” when her boss kept coming onto her. Something about “getting my gun and turning you from a rooster into a hen”. That would most likely have solved the problem. 🙂Report

    • Avatar Barry in reply to Damon
      Ignored
      says:

      “The victim in this case probably would get into trouble, but I’d still recommend Dolly Parton’s lines in “9-5? when her boss kept coming onto her. Something about “getting my gun and turning you from a rooster into a hen”. That would most likely have solved the problem. :)”

      The problem is that Florida’s ‘Stand Your Ground’ law is enforced a tad bit, uh, unevenly? (wink, wink, if you know what I mean, nudge, nudge)Report

  16. Avatar zic
    Ignored
    says:

    Just so’s I’m clear:

    Even if there was a law violated here, because the lawyer sued under the wrong law, this particular case results in a not-guilty verdict?

    In the article @slade-the-leveller linked to above, the plaintiff says he is going to appeal; in an appeal, can the lawyer cite other laws that might have been violated?

    (And you should read that article, if it’s accurate, the dude here wasn’t a smooth operator, he was a stalker, and he sounds mentally ill; he became obsessed with her breasts, and let her know on the very same day she was diagnosed with breast cancer — a serendipity I wonder at. Also, just for the record, they weren’t teachers, they were maintenance workers.)Report

    • Avatar J@m3z Aitch in reply to zic
      Ignored
      says:

      Even if there was a law violated here, because the lawyer sued under the wrong law, this particular case results in a not-guilty verdict?

      “Not guilty” is not relevant because it was a civil case, not a criminal case, but overall, correct. The judge or jury rules on the law that is claimed to have been violated, it’s the plaintiff attorney’s responsibility to choose the right basis for the case.

      In the article@Slade the Levellerlinked to above, the plaintiff says he is going to appeal; in an appeal, can the lawyer cite other laws that might have been violated?

      I’m not an expert in civil procedure, but I think generally no. The appellate hearing is not a trial, so new claims are not allowed, and basing a claim in a different law is, as a legal matter, a new claim. Appellate hearings just review the trial court ruling to determine if the law was applied correctly.

      Since this was a U.S. Circuit Court of Appeals ruling, that means an appellate court has already ruled that the trial court applied the law correctly. And while that’s far from definitive proof they ruled correctly, generally speaking the Circuit courts get their rulings right far more often than not. Or, that is to say, the vast majority of their rulings are not overturned by the Supremes, and its to the Supremes that this would next have to be appealed.

      Fewer than 100 cases are accepted each year, out of around 10,000 appeals (see here). So the odds of the appeal being accepted are slim.Report

      • Avatar Mike Schilling in reply to J@m3z Aitch
        Ignored
        says:

        IANAL, but I presume it’s possible to sue a second time based on violation of a different law. Double jeopardy would not apply in a civil case.Report

      • Avatar Mark Thompson in reply to J@m3z Aitch
        Ignored
        says:

        They do have the option of an en banc appeal, which is still difficult, but more likely to get heard than a petition for cert from the Supreme Court.

        It’s worth mentioning that two of the three judges on the panel that upheld the lower court’s decision on summary judgment (though not on the attorney fee issue at least) were themselves district court judges hearing appeals because of vacancies on the 11th Circuit that need to be filled thanks to decades of Congress using appellate level judicial appointments as a political football.Report

      • Avatar J@m3z Aitch in reply to J@m3z Aitch
        Ignored
        says:

        D’oh! I forgot about en banc appeals! How embarassing.

        Thanks, Mark.Report

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