FTFY.
Okay. Your reading of the implicature is different than mine. I can only get your reading of the sentence if it were to read “Amy Coney Barret doesn’t know any of the five freedoms guaranteed in the First Amendment.”
Exactly. If the evidence of intent comes after the fact, it’s still evidence of intent.
Add to that, if the termination was in process, then it hadn’t completed and the epithet was used while Smith was still employed.
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“Doesn’t know (sic) them” is read as just that; “doesn’t know (sic) them”. In fact, she knows four.
If we’re going to prevail, we need to be correct. Not necessarily civil, but correct. Otherwise we’re just as bad as the evil shits we’re fighting against.
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I’m gonna have to get all Purdue Owl on someone’s ass…
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The court was wrong. Which is why it is being brought up in Barrett’s confirmation hearing.
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“She doesn’t know the 5 rights conferred by the 1st Amendment” doesn’t have a single reading. It can mean:
“It is not the case that she knows the 5 rights conferred by the 1st Amendment.”
“The number of rights conferred by the 1st Amendment that she knows is not 5. (but another number)”
“It isn’t her that knows the 5 rights conferred by the 1st Amendment. (It was someone else.)”
etc.
To argue that there is only one meaning to the sentence and that your interpretation is the only meaning is not correct.
If the original writer had written “It is not the case that Amy Coney Barret knows the 5 rights conferred by the 1st Amendment” would your interpretation change?
It is the common interpretation, and correct, though other interpretations can also be correct.
ANYWAY…for anyone who only skims the first tweet without digging further, it’s an awkward rhetoric because it paints her as an idiot (which she clearly isn’t), and him as a misogynist (which I don’t think he intends).
Let’s just drop the “gotcha” pretense and admit it sounds rather sexist as it’s stated.
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It doesn’t matter how many people he abused.
“Look - I punch everyone- therefore- it’s not assault” is a shitty alibi.
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Agreed as a moral issue, absolutely. But suits under Title VII need to demonstrate some specific elements beyond that generally shitty environment, and in that context “ I punch everybody” IS a pretty persuasive argument to courts under the law as it stands. The way this plaintiff structured his complaint wasn’t able to get past that.
I think the law would be better if the use of a slur like that created a presumption of a hostile work environment, but that’s not where it stands now unfortunately.
(Bostock from June is a great decision, though, and gives some new life to Title VII cases—hopefully if we get another four progressive justices in the next few years it will get even more heft)
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Similarly the logic in Bostock fails against an equal-opportunity bisexual harasser. After all, they’re clearly not discriminating on the basis of sex.
It’s a damn shame that we only got protection from harassment and shitty workplace treatment by wedging it into discrimination law. Proving that terrible behavior is discriminatory is hard, and it’s even harder to prove that it rises to the level or “severe and pervasive” enough to effectively make the job unworkable.
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But the other people who were treated like shit weren’t fired. The plaintiff was treated like shit, fired, and called the N-word. Seems like that acts as a functional difference in treatment (a.k.a. Discrimination).
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I read the district court decision, and fwiw it appears that the guy was a genuinely terrible employee. Like, dangerously incompetent. That’s why it’s meaningful this was summary judgment and not just a motion to dismiss; the court had a full factual record to consider.
That’s what I was getting at above about the bad facts making bad law—him being a terrible employee who should have legitimately been fired isn’t mutually exclusive to the existence of a Title VII violation, and vice versa.
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You really have to be very careful about that kind of judgement. Any employer can make any employee look incompetent on paper. The only way to prevent it is if all the work is done in public or recorded.
Also, with the kind of things they admitted to saying to Smith, his co-workers definitely were incompetent. You just can’t say those things to a colleague. There was cause to fire them for that, but they weren’t.
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I agree one should be careful, which is why I looked up the record of the case on PACER. The summary judgment proceeding has the evidence the plaintiff presented. I don’t know if the filings are available elsewhere or not, but I suspect you might reach the same conclusion if you saw them.
To be clear, none of that means that there wasn’t necessarily discrimination, and it certainly doesn’t mean that the supervisors weren’t dicks. It just means that trying to separate out actual discrimination when it is a case with a seemingly legitimately bad employee is an extra level of difficulty in an already difficult area of law.
And to be extra, extra clear: I think Coney’s reasoning is wrong, and I think the way title VII cases are handled should be changed. But I also believe the reporting on the case is sloppy at best.
But I’ve been pedantic enough about this, so I will let it be. Have a good night!
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Very informative. Thank you @RickMycroft
Preach
(Related because Originalism)
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That is the main point: if she claims to be an originalist, she would obviously have memorized each of the 4400 words in the constitution simply because of her intense studies that revealed its one exact and clearly defined meaning as it was written at the time.
But she can’t even remember the gist of the first amendment.
So she fails at being an originalist. What’s left then?
And yet people typically refer to the five freedoms, and she clearly not at a loss what the question is about: she listed four of them.
I’m also pretty sure she would habe gotten away with listing six freedoms points, or simply quoting the text from memory.
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I realize that the reasoning was probably written to fit the desired verdict; but this seems like a baffling theory wholly regardless of alleged ‘originalism’.
She specifically agrees that an ‘egregious racial epithet’ was used; but then just states that there is no evidence of a hostile or abusive working environment. What kind of evidence is she looking for(and would accept) exactly?
Apparently “my superviser used racial epithets” somehow isn’t ‘hostile or abusive’ on its face; but I’m guessing that “your honor, my feels were much hurt during the course of my employment” also wouldn’t be considered ‘evidence’.
Aside from a shared disinterest in employee protections, this doesn’t even seem meaningfully ‘originalist’. It’s just a bold-faced willingness to set a standard that apparently admits of nothing and act like that’s normal.
