This, as far as can ascertain, is the most generous way to interpret this ruling. (Although someone above did note that, in the full context, the racial epithet may have been uttered after he was no longer employed. Still: if your boss is gonna say that, it probably wasn’t a healthy work environment to begin with?)
2 Likes
You do know that RBG argued discrimination cases on behalf of men during her time with the ACLU, right?
So no, men are NOT excluded from suing over gender discrimination. It’s just that historically, it’s been women who have been systemically excluded and systemically sexually harassed.
7 Likes
Yes, I’m aware of that, and I never claimed that men were excluded from suing over gender discrimination. What did I say that made you think otherwise?
What I actually said was that treating both men and women equally shitty isn’t “discrimination on the basis of sex”. The words I used were “equal-opportunity bisexual harasser”. No discrimination, no title VII violation, right?
Title VII covers “sexual harassment” in practice because “harassment for the purposes of sexual gratification or humiliation” is usually directed at only one sex in each case, and thus actually differential treatment based on sex.
A good lawyer might be able to argue that the same bad acts have differential impacts on the two sexes, or that it is impossible to harass a man and a women in the same way because society itself treats them differently.
A great lawyer might be able to argue that sexually harassing a man, and then sexually harassing a woman is two separate acts of sexual discrimination, rather than none.
But neither are slam dunks squarely covered under existing law, however nice that would be.
2 Likes
Yes. It’s still discrimination. It creates a hostile work environment, whether it’s happening to a man or a woman. Most harassers don’t equally harass all people working under them, but specific people. The people (whatever their gender) are being discriminated against because it makes doing their job contingent and harder. That’s discrimination. Laws prior to the work that RBG did bringing these issues to the supreme court did not protect men from discrimination any more than it did women.
5 Likes
4 Likes
Thank you - as usual Ken sums it up nicely.
The outcome of that case was either due to having a bad lawyer or possibly an excessively honest client.
Judging by some of the court of appeal’s remarks, I would guess the former.
And so it could have been - but the Claimant didn’t put it that way.
This is precisely the point. If the Claimant had presented exactly that as evidence about how being called the N-word made him feel, it should have been enough to defeat the summary judgment application. Such applications are defeated simply by showing that there is some arguable evidence before the court which could if accepted amount to proving the claim.
In this case, the Claimant apparently did not present that evidence. Why not? No idea but see above for my guess.
It may be a ‘wrong’ outcome but there re good reasons why courts in the common law traditions at least decide cases based on the evidence presented to them and don’t (shouldn’t) go looking for evidence to hang their decisions on.
In this case the claimant had the usual opportunities to prepare and present their case. They ended up doing it in a way which simply doesn’t meet the basic requirements for a claim of this kind.
Reading the court of appeal’s decision, it could be used as a textbook on how not to prepare evidence and present a case.
That is certainly true. In this case however, the Claimant didn’t dispute the bad stuff said about him. He claimed that the evidence presented by the Defendant was one-sided and that there were also some positive reviews but he accepted that the bad stuff happened.
2 Likes
The problem becomes, for such a case to NOT involve discrimination, the employer would have to treat those employees equally in all other ways, too - pay, benefits, opportunities for advancement, etc. The number of employers who manage that is slim to begin with, and the number who do so and are such assholes approaches zero.
In other words, being abusive to everyone opens up the door to examining other facets of discrimination. If the boss is an ass to everyone but pays men 30% more then women, that’s discrimination.
3 Likes
I totally agree, but when the court contorts itself to reach a particular outcome, that ends up on pretty thin ice, no?
2 Likes
It does but this case is really not that. No contorting required. It would have required some pretty impressive contorting if the judges had wanted to keep the claim alive.
2 Likes
This topic was automatically closed after 5 days. New replies are no longer allowed.
