Today, I have two posts at Point of Law. One is about how a recent Supreme Court decision may preempt state regulations on vehicle emissions of greenhouse gases. The other is about prejudice and double standards in sexual harassment law, which can cut both ways (today, I write about gay-baiting that the courts permitted in an Oklahoma sexual harassment case; yesterday, I wrote about the politically-correct New York courts’ disturbing bias against heterosexual males in harassment cases).
All too often, the uneven way that sexual harassment law is applied serves to reinforce prevailing biases, rather than deter actual discrimination (and it usually comes at the employer’s financial expense, since it is usually the employer, not the employee who engages in “harassment,” that is held liable and forced to pay damages).
As UCLA Law Professor Eugene Volokh observes, sexual harassment laws (and related religious and racial harassment laws) have been used by aggressive judges to impose a wide array of restrictions on speech, both inside and outside the workplace, including political and religious speech, that were unforeseen by those who originally enacted the civil rights laws.
Usually, courts ignore the First Amendment in harassment cases — but not always. Occasionally, courts construe harassment law so as to avoid violating free speech rights. In Lyle v. Warner Brothers Television Productions, 132 P.3d 211 (Cal. 2006), the California Supreme Court rejected a lawsuit by a female employee against Warner Brothers and its sitcom writers based on the off-color jokes the sitcom writers told in her presence while producing the popular adult-oriented sitcom “Friends.” A few of those jokes were used, after modulation and refinement, on the air in Friends episodes. The court did so by rejecting the position taken by court rulings like Patane v. Clark (2007), that a plaintiff can sue for sexual harassment under antidiscrimination laws without showing that the conduct occurred because of her sex, simply because she perceives her work environment as “offensive” or “hostile.” (I assisted Manny Klausner of the Individual Rights Foundation in submitting an amicus brief on behalf of Warner Brothers, advocating the statutory construction that the California Supreme Court adopted).