What "Objectively" Qualifies as Sexual Harassment? Not Much.

Claims of sexual harassment/hostile work environment must satisfy what is called an "objective" standard: the conduct being complained about must be what a "reasonable person in the plaintiff's position" would have considered hostile. This standard makes sense, theoretically. Frivolous claims of inappropriate conduct, based on exaggerated, subjective opinions shouldn't be allowed to clog up the court system. But while the subjective views of the plaintiff alone shouldn't automatically determine what qualifies as sexual harassment (anything can be offensive to somebody), the objective standard still requires a subjective judgment call. Who, exactly, is this "reasonable person?" What does a "reasonable person" know or believe or feel? Who decides that?

Judges often decide that. Normally juries are supposed to make that call, but when a defendant moves for summary judgment before trial, they argue that no jury could possibly rule in favor of the plaintiff. A judge gets to decide if they're right.

To do so, the judges have to discern what a "reasonable person" would do in a particular set of circumstances. In sexual harassment cases, they have to decide how a reasonable person would react or feel in the same situation the plaintiff found herself (and it's usually a her).

Below is a passage from a court's decision dismissing a Kentucky sexual harassment case. It's a giant paragraph, which I apologize for in advance, but gives a good summary of how a so-called "objective" standard allows judges - usually men over the age of 40 - to subjectively decide what qualifies as a hostile work environment, often dismissing claims before they reach a jury.

I have emphasized the conduct considered by some courts to be insufficient to sustain a claim of sexual harassment/hostile work environment. Do you agree that, "objectively," these situations were something less than sexual harassment?

The Court finds that the conduct of [the accused harasser], while immature, inappropriate, and boorish, does not constitute offensive conduct actionable as harassment, especially in light of the alleged actions of harassers sued in the cases cited below, which various courts found did not give rise to a claim of hostile environment sexual harassment. See, e.g.,  Rabidue v. Osceola Refining Co., 805 F.2d 611 (6th Cir. 1986) (Sixth Circuit did not find actionable sexual harassment where (1) male supervisor referred to a female manager as "whore," "cunt," "pussy," and "tits" and stated "all that bitch needs is a good lay," and (2) the Company forced her to sit with female hourly employees during meetings, forbid her taking clients to lunch, and tolerated posters of scantily clad women in work areas), cert. denied, 481 U.S. 1041, 95 L. Ed. 2d 823, 107 S. Ct. 1983 (1987); Baskerville v. Culligan Intern. Co., 50 F.3d 428 (7th Cir. 1995)(held the following did not constitute sexual harassment: supervisor called the plaintiff "pretty girl", made grunting sounds like "um-um" when plaintiff wore a leather skirt, stated "all pretty girls run around naked", and stated that "with so many pretty girls", he "didn't want to lose control"), cited by Black v. Zering Homes, Inc., 1997 Fed. App. 0014p( (6th Cir. Jan. 14, 1997)held comments directed to the plaintiff including, "Nothing I like more in the morning than sticky buns", and "Hey weren't you there [at the biker bar] Saturday night dancing on the tables?", and references to property parcels as "Hootersville" and "Twin Peaks", did not give rise to a sexual harassment claim); Koelsch v. Beltone Elec. Co, 46 F.3d 705 (7th Cir. 1995)(held supervisor who stroked plaintiff's leg on one occasion, grabbed her buttocks on a separate occasion, told her that he found her attractive, and twice asked her out on dates, did not commit acts which were actionable); Weiss v. Coca-Cola Bottling Co. of Chicago, 990 F.2d 333, 337 (7th Cir. 1993)(held actions of supervisor unactionable even though he called subordinate "dumb blond", placed "I love you" signs in her work area, asked her for a date, put his hands on her shoulder, and tried to kiss her);  Saxton v. American Tel. & Tel. Co., 10 F.3d 526, 534 (7th Cir. 1993)(held the following acts did not constitute sexual harassment: supervisor made inappropriate remarks, kissed and repeatedly touched the plaintiff, and chased her around a forest preserve); Stoeckel v. Envtl. Management Sys., Inc., 882 F. Supp. 1106 (D.D.C. 1995)(held employee's attempts to kiss plaintiff, his lewd remarks about her appearance, his following plaintiff around the office, his unsolicited neckrubs, and hand-holding did not rise to the level of severity and pervasiveness); Gearhart v. Eye Care Centers of America, 888 F. Supp. 814, 825 (S.D.Tex. 1995)(held unactionable supervisor's conduct although supervisor touched plaintiff's breast and hair, kicked her in the buttocks, and made numerous lewd remarks directed at plaintiff); Lefevre v. Design Professionals Ins., 1994 U.S. Dist. LEXIS 20978, 1994 WL 514020 (N.D.Cal. 1994)(supervisor's repeated handshakes and hugs at business meetings and references to plaintiff as "babe" did not create an objectively hostile work environment); Ballou v. University of Kans. Med. Ctr., 871 F. Supp. 1384 (D.Kan. 1994)(held defendant's actions did not constitute sexual harassment where supervisor defendant asked plaintiff about her interest in a romantic relationship, asked her to kiss him on her birthday, often stared at her and followed her).

Stacy v. Shoney's Inc., 955 F. Supp. 751, 755-756 (E.D. Ky. 1997).

Some years have passed since this decision, but the law has not progressed much with the passing of time. There is, after all, extensive precedent to bolster a particularly one-sided "objective" standard, as illustrated in the passage above. Case law doctrines gain quantitative strength and momentum as the years pass.

Sexual harassment claims remain very difficult to win in general, and some judges remain downright hostile to them. "Objectively," of course.

The Obergefell Dissents - C.J. Roberts Part IIB

Slowly but surely, I'm analyzing the dissenting opinions to Obergefell v. Hodges, the Supreme Court case that struck down state bans on gay marriage. I'm still working on the longest of those opinions, the one written by Chief Justice John Roberts, section by section. It's the longest one, and there is a lot to talk about. Previous installments are as follows:

Today, I turn to Part IIB, where the Chief Justice does his best to show that all the cases declaring a "fundamental right to marry" don't really create a fundamental right to marry, and even if they did, it wouldn't apply to gay people simply because they picked the wrong kind of people to fall in love with. And even though our concept of marriage has dramatically changed over time, it hasn't really changed, and changing our concept now would actually change the institution itself and then it wouldn't be marriage anymore. Something along those lines.

Justice Anthony Kennedy's majority opinion spent a lot of time talking about past cases which repeatedly declared there to be a "fundamental right to marry for all individuals." Specifically, he leaned on Turner v. Safley, Zablocki v. Redhail, and the biggest one, Loving v. Virginia. The way the majority saw it, if the states in those cases needed a really good reason to prohibit child support deadbeats, prisoners, and interracial couples from marrying, states today should also need a good reason to prohibit same-sex couples from marrying. Chief Justice Roberts disagrees. Those cases don't require that conclusion at all, he says. Those cases:

This is easily the most "lawyerly" passage in the entire dissent. Portraying these two concepts as mutually exclusive is wrong and misleading. Those cases did consider marriage to be a fundamental right for all people, and therefore, states must justify any barriers that they impose on access to marriage. One of those barriers was based on the race of the partners. One was on incarceration status. Another was on the status of child support payment. One might think that gender, as another status used as a barrier, would similarly need a compelling or important justification. Not so, according to the Chief Justice.

"None of the laws at issue in those cases purported to change the core definition of marriage as the union of a man and a woman," Roberts writes. And just as Judge Jeffrey Sutton of the Sixth Circuit did before, Roberts goes to great lengths to distinguish Loving, the most obvious case supporting the position of the same-sex couples in Obergefell:

This is a tad confusing, because the interracial marriage ban challenged in Loving was not "at common law,"and did, very specifically, criminalize such marriages and declare them summarily void in the state. Declaring a specific type of marriage instantly void is of course not explicitly defining marriage to be something else, but it has the same practical effect.

At any rate, even conservative Justices recognize now that removing racial barriers to marriage didn't change what marriage was, but a lot of people didn't think that in 1967 and before. In 1955, the Supreme Court of Virginia upheld its interracial marriage ban in a now-infamous decision called Naim v. Naim:

The institution of marriage has from time immemorial been considered a proper subject for State regulation in the interest of the public health, morals and welfare, to the end that family life, a relation basic and vital to the permanence of the State, may be maintained in accordance with established tradition and culture and in furtherance of the physical, moral and spiritual well-being of its citizens.
We are unable to read in the Fourteenth Amendment to the Constitution, or in any other provision of that great document, any words or any intendment which prohibit the State from enacting legislation to preserve the racial integrity of its citizens, or which denies the power of the State to regulate the marriage relation so that it shall not have a mongrel breed of citizens. We find there no requirement that the State shall not legislate to prevent the obliteration of racial pride, but must permit the corruption of blood even though it weaken or destroy the quality of its citizenship. Both sacred and secular history teach that nations and races have better advanced in human progress when they cultivated their own distinctive characteristics and culture and developed their own peculiar genius.

197 Va. 80, 89-90 (1955).

Before Loving, many judges believed that marriage, as "a relation basic and vital to the permanence of the State," had to be kept segregated to "preserve the racial integrity of its citizens." It was strongly believed that allowing whites to marry blacks would "change what a marriage was." Not only that, integration would "weaken or destroy the quality" of citizenship itself! 

Chief Justice Roberts' version of marriage law history is that of a revisionist. But he must portray history this way or his argument falls apart. He ignores the incredible cultural battle waged when Mildred and Richard Loving sought recognition of their marriage in Virginia just a few years after Naim v. Naim, reducing it to a "well duh, interracial marriage was no big deal" throwaway distinction of their case. Sure, Chief Justice Roberts seems to say, the Loving's sought the same old marriage we've always had, but not gay couples. They seek something totally different.

The right the Obergefell petitioners seek, says the Chief Justice, is not the fundamental right to marry as the Supreme Court has repeatedly called it, but a new right, a "right to make a State change its definition of marriage."

By that same logic, didn't the Lovings seek to make Virginia change its definition of marriage as only between people of the same race? The Chief Justice says no, because Virginia didn't explicitly define marriage that way. But if a state law specifically prohibits interracial marriage, isn't it effectively defining marriage as an institution between only people of the same race?

Regardless, the argument that the Lovings didn't seek to change the definition actually lends support to the couples in Obergefell. In Virginia, one example of marriage is a marriage between two people of the same race. That kind of marriage still exists and is still the most predominant example of marriage across the country. Only the barrier to an additional form of marriage was struck down. Marriage itself - the civil bond between two people to share property, medical decision-making, and maybe children - wasn't changed at all. Access to it was merely expanded.

The couples in Obergefell merely sought access to the same institution long enjoyed by different-sex couples, just as the Lovings sought access to the same institution previously only enjoyed by same-race couples.

In the next subsection, Chief Justice Roberts distinguishes cases cited by the majority such as Griswold v. Connecticut (contraception by married couples), Eisenstadt v. Baird (contraception by unmarried couples), Olmstead v. United States (wiretapping), and Lawrence v. Texas (gay sexual activity). These are "privacy" cases, he writes, that dealt with criminal statutes - government intrusions different from a civil ban on gay marriage. They don't apply to restrictions on civil benefits.

What Chief Justice Roberts calls "privacy," Justice Kennedy calls "autonomy." Those concepts are related but not exactly the same. Griswold and Eisenstadt gave sexually active different-sex couples the autonomy to choose contraception instead of childbirth without the threat of government penalty. Lawrence gave gay couples the autonomy to engage in sexual activity and not have to face arrest and jail time for it. Those cases, in Justice Kennedy's view, carved out a realm of personal autonomy that should be free of unjustified government regulation. So, too, marriage. Because marriage is a fundamental right, even a civil restriction with no criminal penalty is still a type of government intrusion that must be justified by an important or compelling government purpose. "It's always been this way" is not enough.

"Autonomy," the way Chief Justice Roberts sees it, however, is a gateway to anarchy:

If asked to list as many examples of "free-wheeling autonomy" as I could, "getting married" would probably not show up on the list. Marriage, for many people, signifies the end of the free-wheeling period of their life in exchange for permanence and stability. It is odd to frame the desire of same-sex couples to get married - something different-sex couples, at least of the same race, have always enjoyed with minimal restrictions - as some kind of wild idea that finds support in just one out-of-favor case.

Roberts acknowledges that "the majority does not suggest that its individual autonomy right is entirely unconstrained." But he dismisses those constraints as arbitrary, in line only with the majority's "own reasoned judgment," similar to the kind he repeatedly criticizes in Lochner. But the autonomy the majority recognizes is not something new. It's an old form of autonomy already - and repeatedly - recognized by the Supreme Court as fundamental. We're talking about the autonomous right to get married, not something like the novel, autonomous right to suicide claimed in Washington v. Glucksberg.

This obvious fact nearly unavoidable, Chief Justice Roberts turns to slippery slopes as a distraction:

First of all, if Chief Justice Roberts dislikes plural marriage and doesn't believe there's any Constitutional basis to strike down its prohibition, he should probably not make future petitioners' arguments for them. That tactic backfired notoriously on Justice Scalia in his dissent to Lawrence v. Texas in 2003:

Today's opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned. If moral disapprobation of homosexual conduct is "no legitimate state interest" for purposes of proscribing that conduct, and if, as the Court coos (casting aside all pretense of neutrality), "[w]hen sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring," what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising "[t]he liberty protected by the Constitution?" Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry. This case "does not involve" the issue of homosexual marriage only if one entertains the belief that principle and logic have nothing to do with the decisions of this Court. Many will hope that, as the Court comfortingly assures us, this is so.

539 U.S. 538, 604-605 (2003). Not coincidentally, these words were cited by many district court judges when they struck down state gay marriage bans prior to Obergefell.

Chief Justice Roberts attempts to disarm critics of his parade of horribles, making sure to say that he does not "mean to equate marriage between same-sex couples with plural marriages in all respects," and noting that "there may well be relevant differences that compel different legal analysis." I would say the analysis would be the same: all individuals have a fundamental right to marry who they want to marry. If they want to marry more than one person simultaneously, and the state prevents them from doing so, then the state has to justify the restriction. Maybe the states have good reasons to prohibit plural marriage, and they'll win some future case. But in this case, they couldn't produce any good reasons to prohibit same-sex marriage. No justification the states trotted out could pass any form of scrutiny except in the eyes of the Sixth Circuit and the minority of dissenters in Obergefell. Plural marriage may fare worse, but simply saying that the marriage some people seek is not really marriage at all even though it involves all the same basic elements (love, commitment, property sharing, children) is disingenuous and hopefully will not carry the day in some future plural marriage case.

In the final subsection of Part IIB, the Chief Justice takes on "the harm principle," which the majority in Obergefell only touched on but Judge Richard Posner of the Seventh Circuit fully embraced in his opinion striking down the gay marriage bans in Indiana and Wisconsin. In short, the principle generally holds that a government regulation is not rational when it restricts activity that does not harm the actor or third parties. In other words, regulations based on morality or tradition alone cannot withstand any form of scrutiny when they regulate non-harmful behavior.

For pragmatists like Judge Posner, this seems quite obvious: why should government be allowed to regulate non-harmful personal choices just because it wants to? But to supporters of the majoritarian imposition of moral codes, this is crazy talk. To them, the arbitrary beliefs of the majority can interfere with personal autonomy if the majority so chooses - even when only a small, identifiable minority of the population is specifically targeted for this interference. Like when Texas banned consensual sexual acts between gays and lesbians but not those exact same sexual acts between straight people.

To Chief Justice Roberts, the arbitrary beliefs of judges who favor individual autonomy over collective moral imposition must defer to the arbitrary beliefs of voter majorities:

If the majority in Obergefell "overlooks our country's entire history and tradition," then so did the Supreme Court in Loving v. Virginia. Anti-miscegenation laws, after all, dated from before the American Revolution. By that same logic, the Court in Brown v. Board of Education overlooked America's entire history and tradition of slavery and then Jim Crow segregation. Not only overlooked it, but repudiated it in full. But Chief Justice Roberts cites favorably to those revolutionary decisions as not just welcome but obvious. The distinctions he makes between the rights sought in those cases and the right sought by the Obergefell petitioners thus ring hollow. What we viewed as integral to both education and marriage at the time Brown and then Loving were decided - total segregation of the races - we now view as obvious governmental overreach without legitimate or compelling justification. Roberts thinks that the repudiation of history and tradition was fine in those cases but not in the one before him.

The Obergefell majority did not overlook American history and tradition. It fully acknowledged our history and tradition of inequality and moral intrusion into harmless personal autonomy. But it did repudiate it, and rightly so.

Media Coverage of the Rowan County Clerk Case

As the Eastern District of Kentucky hears a motion to hold Rowan County Clerk Kim Davis in contempt, national media coverage of the case has picked up.

This morning, I appeared on Democracy Now! to discuss the legal issues in the case and our clients' position. Public officials cannot use their religious beliefs as an excuse to deny rights and government services to other people. Ours is a simple argument, and the courts so far have ruled totally in our favor. Allowing religious whims as an excuse for public officials to discriminate would nullify the Fourteenth Amendment.

In other news appearances, my colleague Dan Canon has been making the rounds. He appeared on Al Jazeera on Tuesday and on Nightline yesterday.

News and Happenings

Since the Obergefell v. Hodges ruling in June, I've been posting reactions to media coverage of the case as well as to the opinions filed by the dissenters. But a lot more has been going on in the world of Joe Dunman.

Following the defeat of marriage discrimination nationwide, at least two county clerks in Kentucky have refused to issue marriage licenses to anyone, citing their own anti-gay religious beliefs. In Rowan County, a team of attorneys from the ACLU and my firm (including me) has filed suit on behalf of four couples (same-sex and different-sex) to protect their right to marriage. This month, District Judge David Bunning granted our motion for preliminary injunction, ordering the clerk to resume issuing marriage licenses. That order is currently being appealed by the clerk. Meanwhile, the clerk is also seeking a stay of that injunction. Litigation in this case will likely take a long time to resolve.

In other practice news, I have secured favorable settlements for clients in numerous cases this year, most recently a case of pregnancy discrimination against a major restaurant chain. Several of my clients have also won their appeals in unemployment benefits hearings, defeating spurious claims of misconduct by their former employers.

I continue to write periodically for Insider Louisville. My article opposing legislation to excuse county clerks from having to do their jobs was shared over three thousand times on social media. Other pieces, such as a criticism of the local Fraternal Order of Police president's inflammatory language against protesters and a call to help existing residents of Portland transform their own neighborhood (rather than be gentrified by outsiders) were also popular. My most recent piece tackles the futile and troublesome jaywalking crackdown proposed by local police.

The day before the Obergefell decision, I received a first place award in the category of political commentary from the Society of Professional Journalists for my writing in Insider Louisville. I've also been selected, for the second year in a row, as a "Rising Star" by the Super Lawyers professional rating organization. 

I'm also writing academically. I am now in the final revision stage on a law review article tracing how Bowers v. Hardwick - the 1986 Supreme Court case upholding sodomy laws - continues to control judicial decisionmaking despite its overrule by Lawrence v. Texas in 2003. The article will be published in the Thomas M. Cooley Law Review later this year. This will be my second published law review article with more in the works.

And finally, my colleague Dan Canon and I have launched a podcast called The Parade of Horribles. Why? Because we love to hear ourselves talk, of course. But we also love to talk to interesting people doing civil rights work, so each episode features a special guest. In Episode 1 we spoke to attorney Chris Gadansky about defending police in abuse of force cases and his role in extinguishing whistleblower protections for city employees. In Episode 2, law professor Sam Marcosson joined us to talk about Obergefell, gay marriage, and that time he worked for Clarence Thomas. In Episode 3, attorney Becca O'Neill helped us dispel common myths about immigration law in the United States. So far the podcast has been tremendous fun, and has attracted a decent-sized audience despite being brand new and focused on legal issues. The podcast is available at Soundcloud and through iTunes. Subscribe if you don't mind.