That Amanda Blum Article on Adria Richards is Not What It Seems

The court held that the proliferation of pornography and demeaning comments, if sufficiently continuous and pervasive "may be found to create an atmosphere in which women are viewed as men's sexual playthings rather than as their equal coworkers." Barbetta, 669 F. Supp. At 573. The Commission agrees that, depending on the totality of circumstances, such an atmosphere may violate Title VII. See also Waltman v. International Paper Co., 875 F.2d 468, 50 EPD ¶ 39,106 (5th Cir. 1989), in which the 5th Circuit endorsed the Commission's position in its amicus brief that evidence of ongoing sexual graffiti in the workplace, not all of which was directed at the plaintiff, was relevant to her claim of harassment. Bennett v. Coroon & Black Corp., 845 F.2d 104, 46 EPD ¶ 37,955 (5th Cir. 1988) (the posting of obscene cartoons in an office men's room bearing the plaintiff's name and depicting her engaged in crude and deviant sexual activities could create a hostile work environment).

I use this to show that the bar needed to show a hostile environment is a lot lower than you likely think it is.

It's even low enough to include sexual jokes. While sexual jokes in the workplace are not prohibited under Title VII:

"In Commission Decision No. 84-1, CCH Employment Practices Guide ¶ 6839, the Commission found that active participation in sexual conduct at the workplace, e.g., by "using dirty remarks and telling dirty jokes," may indicate that the sexual advances complained of were not unwelcome. Thus, the Commission found that no harassment occurred with respect to an employee who had joined in the telling of bawdy jokes and the use of vulgar language during her first two months on the job, and failed to provide subsequent notice that the conduct was no longer welcome."

I interpret this to mean that someone who finds that "dirty remarks and telling dirty jokes" are not (or no longer) welcome can provide notice under Title VII. (And Title VII is quite broad about what constitutes 'provide notice.') If those jokes continue, then it may be a sign of sexual harassment.

But the very first step is to provide notice. Which is what happened here.

How do you conclude, based on the body of court cases and EEOC decisions on this topic, that complaining about dick jokes "is a slap in the face to all the men and women who actually have to endure sexual harassment" when the EEOC says that someone who doesn't like dick jokes should complain about it, and that continued exposure to unwanted dirty jokes can be an indication of sexual harassment?

Voting is an indication that some subgroup of people have a specific view, either positive or negative, towards a talk. The selection committee can use that information to guide their selection. They may even go back to the person and point out that while the talk content is very appropriate, it's structured in such a way that incidental aspects (eg, a joke about "Hans Reiser killing women attendees" at a talk at linux.conf.au) will detract from the talk and blunt the actual content.

Or they may decide that the content is important enough to override the vote.

You are right, by the way. In the US context, being offended goes not give anyone rights. What gives people rights is the law. The law prohibits discrimination in the workplace based on sex, the laws says that sexual harassment is a form of discrimination based on sex, the law says that frequent and unwanted dirty jokes at the workplace can be a form of sexual harassment, and the law says that if someone doesn't like dirty jokes in the workplace then the first step is to file a complaint. And the law gives wide latitude to what the complaint can be, including making a complaint in public, and says that making a complaint gives extra protections against retaliation.

So no, being offended does not give people rights. Civil rights laws give people rights.

As to your examples, the law does not say that references to evolution, gay rights, etc. are in violation of the laws against discrimination in the workplace. However, if the only Young Earth Creationist in the company was always singled out as the person to write the "earth geology" transcripts, and there was no special business reason why that Y.E.C. should be singled out, then that Y.E.C may file a complaint for discrimination based on religious beliefs.

Because singling out someone in the workplace based on their religious belief is against the law.

Do you have any context as to what is going on here?

The guy in the middle of the picture that's smiling at the camera is not the perp. Most people who just saw the picture, without reading everything that everyone else wrote, think that he is the perp.

Where did I write that I disagree with all forms of public shaming, and that they all need to be prohibited? However, posting up pictures of many men, with one of them clearly staring at the camera, and saying "he jokes about dongles" is wrong when the guy that is at the center of the photo and is staring at the camera is not the guy that joked about dongles. That's defamation. Case closed.

It depends on several factors. A company cannot use a legitimate reason for firing someone as a pretext for an illegal reason to fire someone. The courts will ask questions like: Does the company have a policy that if an employee makes an incorrect statement like this then that person can be fired? Are there examples of other employees who made an incorrect statement but did not get fired? Here's the actual EEOC statement:

> The anti-retaliation provisions make it unlawful to discriminate against any individual because s/he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, hearing, or litigation under Title VII ...

> The anti-discrimination statutes do not limit or condition in any way the protection against retaliation for participating in the charge process. While the opposition clause applies only to those who protest practices that they reasonably and in good faith believe are unlawful, the participation clause applies to all individuals who participate in the statutory complaint process. Thus, courts have consistently held that a respondent is liable for retaliating against an individual for filing an EEOC charge regardless of the validity or reasonableness of the charge\26. To permit an employer to retaliate against a charging party based on its unilateral determination that the charge was unreasonable or otherwise unjustified would chill the rights of all individuals protected by the anti-discrimination statutes.

> Typically, pretext is proved through evidence that the respondent treated the complainant differently from similarly situated employees or that the respondent's explanation for the adverse action is not believable. Pretext can also be shown if the respondent subjected the charging party's work performance to heightened scrutiny after she engaged in protected activity.

"If I have an employee who ..."

The law gives broad anti-retaliatory protections to someone who made a complaint. As I quoted above, the courts protect a claim made in good faith. "To permit an employer to retaliate against a charging party based on its unilateral determination that the charge was unreasonable or otherwise unjustified would chill the rights of all individuals protected by the anti-discrimination statutes."

"Good faith" is given a very broad interpretation. It's not expected that an employee will know the Title VII laws, nor know if a certain practice is actually prohibited under the law. However, if it was not made in good faith (the wording is something like "no reasonable person would agree"), then that complaint does not have Title VII protections.

Also, the employee may not make unreasonable forms of complaint. The EEOC writes: "[C]ourts have found that the following activities were not reasonable and thus not protected: searching and photocopying confidential documents relating to alleged ADEA discrimination and showing them to co-workers\17; making an overwhelming number of complaints based on unsupported allegations and bypassing the chain of command in bringing the complaints\18; and badgering a subordinate employee to give a witness statement in support of an EEOC charge and attempting to coerce her to change her statement.\19 Similarly, unlawful activities, such as acts or threats of violence to life or property, are not protected. ... If an employee's protests against allegedly discriminatory employment practices interfere with job performance to the extent that they render him or her ineffective in the job, the retaliation provisions do not immunize the worker from appropriate discipline or discharge."

That tweet can be parsed in many ways. Does "support me" mean that the company agrees that hearing unwanted dirty jokes while at the workplace is a valid reason to complain? Does "support me" mean that the company supports her legitimate use of Title VII protections? Does "support me" mean that her supervisor told her she was supported by the company, but upper-level management later decided that she wasn't?

Given that a company is supposed to support an employee's Title VII civil rights, I think that there is a reasonable person (the law says 'a reasonable person' not 'every reasonable person') who would say that tweet is nowhere near the bounds of what is impermissible in a Title VII action.

You always have a right to be offended, but I have a right to not give a crap. Vote with your wallet (don't go to conference), vote with your feet (don't go to that talk), but don't try to get material banned from everyone because it offends YOU, let me decide for myself... I have the same options you do, to not go to the conference, to not go to the talk.

I will even lean into your example. Obviously, having or distributing child porn is a felony, so it is assumed the talk author wouldn't really bring any (if (s)he did, just call police, they go to jail)... so maybe his talk would be about how to hide your identity online... maybe how to hide it from oppressive governments? Maybe how to use the TOR network? Maybe how to safely help women get online and protest in countries where they aren't allowed to go outside alone? Maybe the title was intended to drum up some media attention and get a packed hall for a talk about people being stalked online, and how to be invisible.