Competitive Enterprise Institute | 1899 L ST NW Floor 12, Washington, DC 20036 | Phone: 202-331-1010 | Fax: 202-331-0640
Earlier, I discussed how judges in the New York area, such as the Second Circuit Court of Appeals, enforce discriminatory double standards in sexual harassment cases and free speech cases that involve sexually explicit materials.
While the liberal Second Circuit has arbitrary politically-correct biases—like preferring gay porn to straight porn—judges in more conservative regions can be biased in the opposite direction, countenancing bias against gay people in sexual harassment cases.
For example, in Lockard v. Pizza Hut, 162 F.3d 1062 (10th Cir. 1998), the plaintiffs’ trial lawyer inflamed an Oklahoma jury by focusing on the sexual orientation of a Pizza Hut manager, even though it was plainly irrelevant. The manager was not accused of sexual harassment himself, but only of failing to prevent harassment of the plaintiff waitress by male customers. The trial court, amazingly enough, allowed this, claiming that the manager’s homosexuality was “relevant to his attitude toward sexual harassment and his inattention to [plaintiff’s] complaint.” (Why being gay would make someone more indulgent towards sexual harassment by heterosexuals is beyond me). The jury then ruled in favor of the plaintiff. The Tenth Circuit Court of Appeals then upheld the jury verdict against the defendant, claiming that it was a harmless error to admit the manager’s sexual orientation.
The Tenth Circuit’s assertion that the error was harmless was ludicrous, since it occurred in a close case where many courts would have ruled against the plaintiff. The conduct alleged by plaintiff, although disturbing, was less severe than conduct that other courts have found insufficient to support a jury verdict in favor of a plaintiff. The Sixth Circuit reversed a jury verdict based on worse conduct in Barnes v. Montgomery County Board of Education (1997), claiming the conduct was insufficiently severe or pervasive to constitute actionable sexual harassment—even though that case involved harassment by a supervisor, not mere customers. (The Supreme Court observed in Faragher v. City of Boca Raton (1998) that abusive conduct by a supervisor can create a hostile environment more quickly than the same conduct by a co-worker, given the supervisor’s power over his subordinates).