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Sunday, December 23, 2007

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.

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Gail Heriot


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.

Posted by: Dan Simon | Dec 23, 2007 9:44:21 PM

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...

Posted by: Gail | Dec 23, 2007 10:53:12 PM

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.

Posted by: krm | Dec 24, 2007 7:26:27 AM

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

Posted by: J. Bogart | Dec 24, 2007 9:36:52 AM

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.

Posted by: y81 | Dec 25, 2007 9:47:30 AM

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!

Posted by: Jobless_Jacob | Dec 25, 2007 11:41:09 PM

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.

Posted by: Hans Bader | Dec 26, 2007 8:16:25 AM

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.

Posted by: Hans Bader | Dec 26, 2007 8:40:00 AM

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