White Guys Have No Rights. And They’d Better Shut Up If Think They Have (Part 1)Gail Heriot

This semester my employer required me to take a training course on sexual and other illegal workplace harassment. USD didn’t adopt this policy by choice; California law requires it. Alas, the course, turned out to be an annoying piece of propaganda. Here’s what I (and untold thousands of other Californians) "learned":

1. White Guys Can Be Scary. The core situation in the computer training course is a tendentious incident in which a recently-promoted black, female bank employee named "Shani" receives anonymous e-mails from someone who purports to be her secret admirer. This escalates into a kind of stalking. Finally, the "secret admirer" takes a large photo of a naked pregnant woman with a headshot of Shani (who is herself pregnant) pasted on it and hangs it on her office door with the caption "pregnant and looking for love." Obviously, no one imagines that this is proper office decorum. 

Who turns out to be the perpetrator? Can’t you guess? It’s the white guy who complained that he should have gotten Shani’s promotion. He earlier claimed that he was the victim of "reverse" race and sex discrimination, so he’s a scary guy. We’re told that his actions were calculated to frighten her into not returning to work after her upcoming pregnancy leave.

Okay, fine. No doubt white guys who complain that they are the victims of reverse discrimination do bad things sometimes, just as every other variety of humankind does bad things sometimes. And producers had to use some dramatic situation as its theme. But it’s needlessly insulting to its captive audience for it to portray the villain as a person who is unenthusiastic about the merits of affirmative action. No one else in the program is portrayed as anything more than a generic "employee."

Nevertheless, that alone would not have inspired me to write this blog entry. It gets worse ....

2. All Complaints Must be Treated Seriously. No jokes. No retaliation. This is a theme that the course returns to over and over again. A manager is REQUIRED to report any incident that might be interpreted as sexual, racial or any other kind of illegal harassment to the friendly bureaucrats who inhabit the "Human Resources Office." Hence, both Shani and her friend from another department had a duty to report the various incidents involving the "secret admirer"–the e-mails, the stalking, and the poster.

Another minor incident in the training course involves a women named "Ami" who is exasperated that a colleague of hers, "Wendy," has been complaining of being harassed on account of her obesity. Evidently, Wendy herself makes jokes about her weight. Ami says to her supervisor, "Hey, can I bend your ear for a minute? Is it safe? Are the Sensitivity Police out?" She then asks, "Look, can’t you get the [Human Resources Office] to drop this Wendy thing and let the rest of us get back to work? It’s really bringing down team morale, and people just aren’t laughing like they used to."

Course participants are instructed that Ami must be admonished. A good supervisor should [e]xplain that the organization expects all employees to act in a professional and respectful manner when dealing with each other." Participants are further instructed that "Ami should not make negative comments about the investigation, or about Wendy for making the complaint." Of particular importance is the so-called "No Retaliation" policy:

"Explain the no-retaliation policy. If Ami witnesses any retaliation against Wendy because of the current investigation, Ami should report it immediately–this includes ‘ribbing,’ teasing, or even giving the cold shoulder. Retaliation is strictly prohibited by law and the policy."

Got that? It’s not just that Wendy’s supervisor must not penalize her in her assignments or evaluation for making her complaint. It’s not just that nobody may tease her about it. Her colleagues may not even pay less attention to her socially than they did before. Absolutely no retaliation unless ....

3. Complaints Made by White Guys Don’t Count. Here Retaliation is Evidently Fine. The exception to the "take all complaints seriously" rule appears to be for white guys who complain that they are the victims of discrimination. When Shani first learns the identity of her "secret admirer," she tells the Human Resource bureaucrat:

"You know, I remember overhearing him saying something really offensive about how he was the victim of reverse discrimination when I got the job. Really out of line. I wonder if I would’ve reported it then ... (emphasis supplied, ellipsis in original)."

The Human Resources bureaucrat replied:

"That certainly would have been the right thing to do, and reporting it then might have enabled us to nip this in the bud earlier."

Huh? How can Shani, a bank manager, get away with pronouncing our villain’s complaint "really offensive" and "really out of line"? Isn’t our villain simply making a complaint that he has been mistreated by his employer under the laws of California and the United States of America? Doesn’t the no-retaliation policy apply to white guys complaining of discrimination too? Evidently not. The training program treats it as obvious that white guys are not supposed to complain about discrimination.  Can anyone imagine that if the roles were reversed, and Shani had complained that she was discriminated against in the promotion as a black female, that anyone would have called her protests "really offensive" or "really out of line" with the training program's approval?

We’re later told that the villain has been fired and that his case is being referred to law enforcement for possible criminal prosecution as "cyber-stalking."

This is really over the top. The message the employee is supposed to carry away is clear: Anyone who complains about any kind of inappropriate harassment or discrimination in the workplace must be treated with kid gloves (even if the complaint is silly), unless the complainant is a white guy concerned about "reverse" discrimination, in which case he’s "really out of line" and his conduct is "really offensive."

It occurred to me that this training course is itself a rather blatant form of racial and sexual harassment.  Employees taking the course are not so subtly being told, "Do not dream of complaining about race or sex discrimination if you are white or male.  Your employer will consider you to be 'really out of line' and your conduct 'really offensive.'  This may have an career shortening effect."

Update:  In my original version of this post, I identified New Media Learning as the producer of the training course.  I have since received an e-mail saying that I am mistaken about this.  I am checking to get the right info. 

Comments

[Dan Simon]

My understanding is that the content of these "courses" is not designed with the goal of preventing or even reducing sexual harassment, but rather with the goal of protecting the employer from liability in the event of every conceivable successful employment harassment lawsuit. I find it hard to fault employers for biting the bullet and imposing this drivel on their employees, given that the alternative is risking a monster judgment against them for having failed to anticipate the next nutty frontier of the ever-expanding universe of employee "harassment" tort law.

On the other hand, if you find yourself taking one of these courses in a classroom setting, I highly recommend reminding your instructors and classmates about this motivation for the course content at every opportunity. It should help everyone see the whole thing in the proper perspective.

[Gail]

Dan--In California, the employers' motivation is first and foremost to comply with the law that requires all supervisory employees (of employers with 50 or more employees)to take a two-hour course on sexual harassment every two years. I doubt these courses would have a fraction of the market they currently enjoy without that legislative mandate. And only a fool would "find fault" with the employer for complying with the law. I feel a bit sorry for them. Setting up these courses and ensuring that all supervisory employees have taken the course is a lot of work. Our poor provost had to send out warnng notices to people who hadn't taken the course yet. That's not something a provost should have to spend time doing. On the other hand, even in those states that do not require such courses, I don't think it's quite fair to say the courses are "designed" with the goal of protecting the employer and not with the goal of eliminating or reducing sexual harassment. (First, it's not the employer that "designs" the course, but that's another story.) When an employer pays someone to give such a course, they certainly will tend to have self interest in mind. That can't be a shock. But it's in the employers' interest to try to accomplish both goals--prevent illegal harassment and help insulate the employer from liability if illegal harassment occurs anyway. Whether they end up helping or hurting themselves in the long run is another issue. As for the "goal" of the actual designer of these programs, that's yet another thing. Some are true believers, some are scam artists and some ordinary salesmen with a product to sell that they hope will be useful. One of the most troubling aspects of all this is how these "harassment prevention consultants" managed to convince the California Legislature that only those with two or more years experience in the harassment industry should be permitted to create such a course. Protectionism in the provision of sexual harassment courses is no prettier than in the provision of any other good or service. More on that aspect of the issue later...

[krm]

Gail - Only a fool, or an ideologue, would not "find fault" with an employer complying with an idiotic legal mandate in such a way as to inflict the very sort of discrimination that the courses are purportedly (but not actually) designed to help fight.

The content of the course makes it clear that any sort of "minority" is favored over white males and that, in the employment area, it is full out open season on white males.

[J. Bogart]

It seems to me that if you found the presentation/course offensive you should file an appropriate complaint with your employer.

[y81]

Don't you have tenure? Why didn't you point out to the instructor how stupid and offensive all this was and make his/her life a living hell for the duration of the course? What's the point of tenure if you can't have fun? Back when I was a civil servant and we had to take one of those courses, that is what we did, but of course now that I am at a law firm I would not do that.

[Jobless_Jacob]

I'm a white guy. It was made rather clear in college that I had no rights and I learned that I'd better shut up in law school. It's a high-priced education, but it's worth it!

[Hans Bader]

New Media's training course seems to be giving faulty legal advice.

White guys DO enjoy the well-established legal right not to be retaliated against when they complain about affirmative action, even though they don't always have a right not be discriminated against by the affirmative action itself. While affirmative action itself is often legal, retaliation against those who criticize it is not.

Here's the email I sent New Media:
There's a bit of faulty legal advice in one of your programs could expose your clients to civil-rights litigation, especially retaliation claims, judging from a law professor's recent description of your "preventing harassment" program.

Judging from your program, as recently described by San Diego Law Professor Gail Herriot, you suggest that employee criticism of employer affirmative action programs that is perceived as "offensive" should be subject to employer investigation and possible sanctions.

In fact, criticism of workplace affirmative action policies (even perfectly legal affirmative action policies) is protected by the anti-retaliation provisions of Title VII, Section 1981, FEHA, and other laws, see, e.g., Setser v. Novack Investment Co., 638 F.2d 1137 (8th Cir. 1981). (And in the public sector workplace, it is protected also by the First Amendment, see, e.g., State Personnel Board v. California Dept. of Corrections, 59 Cal.App.4th 131 (1997)).

A Bay Area university paid $2.4 million in damages to a white male employee who was disciplined after complaining about his employer's affirmative action policy.

You might not like such complaints. The courts, however, called the employer's hostile reaction to his complaint "unlawful retaliation."

Disciplining employees for criticizing affirmative-action plans is forbidden by law, since such criticism is typically believed by the employee (rightly or wrongly) to be a form of protest against violations of the civil rights laws, and such protests, unless patently unreasonable, are protected by the anti-retaliation provisions of the civil rights laws.

[Hans Bader]

Punishing employees because they criticize affirmative action violates the anti-retaliation provisions of Title VII, Section 1981, and FEHA, as I noted above, and also violates the First Amendment when it occurs in the public-sector workplace. (See California Department of Corrections v. State Personnel Board, 59 Cal.App.4th 131 (1997) (I gave the name of this case backwards in my above comment)).

Professor Heriot says that the "training course is itself a rather blatant form of racial and sexual harassment."

Perhaps this is true, although only in one sense. In Hartman v. Pena (1995), a white man was allowed to sue (and settled for some damages) after being exposed to a 3-day diversity training seminar that insulted white males (and thus constituted sexual harassment).

Of course, as the Supreme Court observed in the Meritor Savings Bank v. Vinson case (1986), not all "harassment" in the ordinary sense violates Title VII. The harassment has to be "severe" or "pervasive," and a short training program typically doesn't satisfy that requirement.

But a long 3-day diversity training seminar, like the one in Hartman v. Pena, can.

And even a short training seminar that is needlessly biased can be one building block of a "hostile environment" sexual harassment claim, even if it is not, all by itself, sufficiently severe to violate the law. But employees wouldn't be wise to sue if that's the only bias they were subjected to.

[Suetonius@religious.com]

"Can anyone imagine that if the roles were reversed, and Shani had complained that she was discriminated against in the promotion as a black female, that anyone would have called her protests 'really offensive' or 'really out of line'?"
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Yes. The people who can imagine it are black people. The people who would call her protests "out of line" are called white people. That is why these training programs exist.

You would think someone smart enough to switch her party affiliation so as to circumvent the law and stack the Civil Rights Commission with Republican hacks hostile to the advancement of civil rights could write a smarter post than this.

[Bill]

"Yes. The people who can imagine it are black people."

Soooo... You're saying black people can imagine a training program video that would call protests by a black female 'really offensive' or 'really out of line'? I would suggest they work on that over-active imagination.

You would think someone smart enough to write cliched talking points about how Republicans are 'hostile to the advancement of civil rights' would write a smarter comment than that... actually come to think of it, you wouldn't. Carry on.

[Suetonius@religious.com]

"You would think someone smart enough to write cliched talking points about how Republicans"
*******************************************************************************************

Except I didn't say that. The CRC has 6 Republicans on it. Two re-registered as independents to avoid breaking the law. So the Commission really has 6 Republicans on it. Ms. Heriot is one of those shadow Republicans who re-registered. Her hostility to civil rights is not really in question -- that's why the law was circumvented to keep her on the Commission! And the commissioners on the Commission in general are hacks, even the Democrat appointees are know-nothing cronies of Harry Reid and Nancy Pelosi.

So when I wrote "You would think someone smart enough to switch her party affiliation so as to circumvent the law and stack the Civil Rights Commission with Republican hacks hostile to the advancement of civil rights could write a smarter post than this," I was referring to the Republican hacks on the Civil Rights Commission, not making a statement about Republicans in general. While such a general statement about all or most Republicans might be cliched and/or a talking point, I didn't make that statement; I was merely talking about the 6 Republicans on the Civil Rights Commission.

There are plenty of nice Republicans out there who aren't hostile to civil rights, like Jack Kemp. Ms. Heriot isn't one of them.

[Suetonius@religious.com]

You're saying black people can imagine a training program video that would call protests by a black female 'really offensive' or 'really out of line'?
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No, just hostile co-workers who chide them for their "overactive imaginations."

[Suetonius@religious.com]

http://www.boston.com/news/nation/articles/2007/11/06/maneuver_gave_bush_a_conservative_rights_panel?mode=PF

Maneuver gave Bush a conservative rights panel
By Charlie Savage, Globe Staff | November 6, 2007

WASHINGTON - The US Commission on Civil Rights, the nation's 50-year-old watchdog for racism and discrimination, has become a critic of school desegregation efforts and affirmative action ever since the Bush administration used a controversial maneuver to put the agency under conservative control.

Democrats say the move to create a conservative majority on the eight-member panel violated the spirit of a law requiring that no more than half the commission be of one party. Critics say Bush in effect installed a fifth and sixth Republican on the panel in December 2004, after two commissioners, both Republicans when appointed, reregistered as independents.

"I don't believe that [the law] was meant to be evaded by conveniently switching your voter registration," said Commissioner Michael Yaki, one of the two remaining Democrats.
...
In early 2007, Senate Republicans restored the 6-to-2 bloc by appointing Gail Heriot, a member of the conservative Federalist Society who opposes affirmative action.

Heriot was an alternate delegate to the 2000 Republican National Convention and was a registered Republican until seven months before her appointment. In an interview, Heriot said her decision to reregister as an independent in August 2006, making her eligible to fill the vacancy, "had nothing to do with the commission."

"I have disagreements with the Republican Party," she said. Asked to name one, she declined.

[Hans Bader]

The above comment from the anonymous commenter "Suetonius" is evasive, unpersuasive, and hypocritical. Suetonius supports a poorly-designed harassment training program that provides bad legal advice by suggesting that criticizing affirmative action is a form of harassment, when in fact criticism of affirmative action is protected by the anti-retaliation provisions of the civil-rights laws, and also the First Amendment.

For years, the Civil Rights Commission had "shadow Democrats" on it to avoid any meaningful Republican representation, like Mary Frances Berry, a flamboyantly left-wing phony "independent" and Democratic donor who repeatedly behaved in ways that were illegal (as demonstrated by a ruling by the D.C. Circuit Court of Appeals), and left the Civil Rights Commission in an utter shambles financially by the time she departed. Liberals back then were quite happy with nominal "independents" giving the Democrats a lock on the Commission, and insisted that all that mattered was being a registered independent.

Suetonius expresses no concern about that. Instead, Suetonius expresses (selective) concern only about the status of Professor Heriot, whom is undeniably a registered independent, and who appears to have taken far fewer public ideological positions than Mary Frances Berry ever did.

"Suetonius" never does address the central problem with New Media's training course: that it is giving bad legal advice.

Contrary to New Media Learning's claim, white males DO enjoy the well-established legal right not to be retaliated against when they complain about affirmative action, even though they don't always have a right not be discriminated against by the affirmative action itself. While affirmative action itself is often legal, retaliation against those who criticize it is not.

New Media Learning suggests that employee criticism of employer affirmative action programs that is perceived as "offensive" should be subject to employer investigation and possible sanctions.

In fact, criticism of workplace affirmative action policies (even perfectly legal affirmative action policies) is protected by the anti-retaliation provisions of Title VII, Section 1981, FEHA, and other laws, see, e.g., Sisco v. J.S. Alberici Const. Co. (8th Cir. 1981). (And in the public sector workplace, it is protected also by the First Amendment, see, e.g., California Dept. of Corrections v. State Personnel Board, 59 Cal.App.4th 131 (1997), a case in which a white male employee's angry diatribe against affirmative action to a female Hispanic beneficiary of affirmative action was held to be speech protected by the First Amendment).

A Bay Area university paid $2.4 million in damages for "retaliation" to a white male employee who was disciplined after complaining about his employer's affirmative action policy.

Disciplining employees for criticizing affirmative-action plans is forbidden by law, since such criticism is typically believed by the employee (rightly or wrongly) to be a form of protest against violations of the civil rights laws, and such protests, unless patently unreasonable, are protected by the anti-retaliation provisions of the civil rights laws.

Moreover, since biased diversity training or harassment training programs can in some cases constitute sexual harassment (see Hartman v. Pena (1995) (judge ruled that anti-male, 3-day diversity training program supported sexual harassment claim by white male FAA employee)), any employee who criticized the New Media Learning program under the belief that it is harassing would be protected against retaliation for such criticism by Title VII's anti-retaliation provisions (that would be true even if the biased training were not severe enough to constitute illegal harassment, see Quinn v. Green Tree Financial (complaint of sexual harassment is protected if the complainant reasonably believes that it is sexually harassing, even if it is not severe enough to constitute illegal harassment under court precedent)).

Moreover, there is a remote possibility that New Media Learning itself could be sued for harassment in some cases for giving biased sexual harassment training, since the Seventh Circuit Court of Appeals has allowed trainers who create a "hostile training environment" for public employees to be sued under 42 USC 1983. (No such cause of action exists in the private sector, where an employee must meet the more rigorous test of showing that sexual harassment created a "hostile work environment").

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[JDH]

Well, I think assbigparade just about said it all. What is there left to discuss?

[Hans Bader]

Can this blog remove the references in my above comments to any specific diversity training provider?

I reasonably assumed that the provider of the faulty training was a particular firm, given prior unrebutted blog coverage attributing it to that firm, and the fact that my two emails to that firm containing the essence of my above comments also went unrebutted (until now).

However, THE FIRM IDENTIFIED AS PROVIDING THE TRAINING DESCRIBED ABOVE NOW TELLS ME THAT PROFESSOR HERIOT'S UNIVERSITY IS NOT ONE OF ITS CLIENTS, AND THAT THE TRAINING DESCRIBED ABOVE APPEARS TO BE FROM A DIFFERENT PROVIDER THAN IT.

Since I have no firsthand knowledge of which firm provided the training program, and am in no position to gauge whether or not the firm's claim is true, I, personally, am not currently in a position to blame any particular firm for the content of the training described above.

Thus, it would be nice if my comments above could be edited to remove any reference to any specific firm that provides diversity training, to reflect that fact. Sorry for any inconvenience. Thanks.

[Sal Monella]

Just for the record, Straight White Guys are the only minority the country can't do without.

[Dingo]

I hope that I live to see the day when White Males become just another disenfranchised minority and gain all of the benefits available.

[Suetonius@religious.com]

Liberals back then were quite happy with nominal "independents" giving the Democrats a lock on the Commission, and insisted that all that mattered was being a registered independent. Suetonius expresses no concern about that.
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I'm not a liberal. I'm against circumventing the law. I complained about the unethical Professor Heriot because that unethical professor wrote this post.

[AF]

Suetonius said: "I'm not a liberal. I'm against circumventing the law. I complained about the unethical Professor Heriot because that unethical professor wrote this post."

And because you have certain bigotries that you wanted to advance. I quote from your first post:

"The people who can imagine [a hypothetical black female's protests against discrimination being called 'really offensive' or 'really out of line'] are black people. The people who would call her protests "out of line" are called white people. That is why these training programs exist."

So, you are asserting the existence of certain white people who would not only engage in discriminatory behavior against a hypothetical black female but, in addition, would attempt to stigmatize and discourage her attempts to call attention to the discriminatory behavior. You suggest that "these training programs exist" because of the (asserted, not demonstrated) existence of such white people, and a need to rein in their (asserted, not demonstrated) discriminatory behavior.

Let us assume, arguendo, the existence of some such white people. It is not unreasonable to stipulate the need to educate some such white people that the discriminatory behavior in question is unacceptable.

BUT... what makes it okay for training programs like THESE training programs to teach black people that for THEM to commit such discriminatory behavior is acceptable and laudable?? Far from being acceptable and laudable, it is ILLEGAL, as case law already cited here has made clear. But as described, the training program teaches black people that if they encounter any white person who feels that they have encountered discrimination, that white person SHOULD BE stigmatized and discouraged. "[Reporting a white person's expression of belief that he was the victim of discrimination] would have been the right thing to do, and reporting it then might have enabled us to nip [subsequent illegal behavior] in the bud earlier."

Just because a problem really exists does not mean everything which is purported to be a solution to that problem is good and justified. The training program as described advocates plain bigotry: if a black female complains about discrimination, she is fully justified and must not be so much as criticized; if a white male complains about discrimination, he should be "reported" so that the illegal behavior he is clearly already contemplating (or so the stereotyping of the production would have you believe) can be "nip[ped] in the bud". Suetonius, if you still stand by your assertion that the existence of SOME white people who discriminate necessitates the existence of "these training programs", including the ones which actually advocate illegally punishing white males for expressing a belief that they have been discriminated against, then you have done nothing except identify yourself as a bigot.

And I'm sure this is already obvious to every non-bigot here, but Professor Heriot's political affiliation has no relevance to the bigotry inherent in this training program. What you are doing by addressing Heriot's politics rather than her arguments is called "poisoning the well".

[Suetonius@religious.com]

Let us assume, arguendo, the existence of some such white people. It is not unreasonable to stipulate the need to educate some such white people that the discriminatory behavior in question is unacceptable.
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If you doubt the existence of such people, you need to go back to high school for a basic history course. You might also bother googling the word "denial".

The point is Professor Heriot not only doubts the existence of such people -- which makes no sense, given that the Civil Rights Commission exists precisely to document the pernicious activities of such people -- but also doesn't agree with you and I that discriminatory behavior is unacceptable. That is why she was put on the Commission: to destroy it. That she was willing to subvert the rule of law to do it only proves the point.

[AF]

Number of words Suetonius spends addressing the key issue, that this training program does NOT teach that discriminatory behavior is unacceptable, but rather that discriminatory behavior IS acceptable when it's done by people of color: zero.

The plethora of red herrings Suetonius throws out in order to DISGUISE her support for this bigotry is rather amusing to see, though. "This training program teaches that if a black female tries to exercise a right, no one is allowed to stop her, but if a white male tries to exercise the same right, he should be reported SO THAT he can be stopped." "OMG you are trying to deny that any white person ever has been discriminatory Professor Heriot is a dishonest person who is trying to deny that any white person has ever been discriminator Black people are discriminated against all over the place" "Do any of your claims, even if true, alter the fact that this training program, supposedly AGAINST discrimination, is in fact ADVOCATING discrimination? Is that fact altered in the least?" "OMG OMG let me repeat more ad hominem against Professor Heriot Let me quote you starting with 'Assume the existence of such people' and nevertheless nonsensically try to claim that you doubt the existence of such people I cannot defend my position but I want to maintain it anyhow"

[JT]

@krm: it is that kind of attitude that gives the civil service and tenured academics a bad reputation. Also, I suspect that this class is on-line as the UC's is, so it would be rather pointless to try to derail the class with asinine behavior. I have found the one the UC purchased is tedious and boring (and I just realized I forgot to finish it by the end-of-the-year this time, I wonder what will happen to me) but as a straight white male I found nothing about it that was patently or latently offensive, and the only real advise it seemed to give was, when in doubt, a supervisor should error on the side of contacting the sexual harassment prevention officer in HR.

[JT]

@krm; nevermind; @y81; my comments were directed at you.