Debugging conference anti-harassment policies [LWN.net]

Debugging conference anti-harassment policies

Posted Feb 5, 2011 22:47 UTC (Sat) by BrucePerens (guest, #2510) [Link]

It's about how the audience feels

You can go to jail for rape, or assault, or maybe even some form of harassment, and in some countries for hate speech, but not for simply hurting someone's feelings or making them uncomfortable with your words. Ever think about why? It's simply the difference between objective and subjective. We have no good way of fairly ruling on the subjective. That's why policies that rely on subjective parameters must, simply by their nature, be oppressive and unjust.

Debugging conference anti-harassment policies

Posted Feb 5, 2011 22:57 UTC (Sat) by mjg59 (subscriber, #23239) [Link]

We're talking about a policy that's analogous to a corporate sexual harassment policy, not a law. The original paper selection process was subjective too.

Debugging conference anti-harassment policies

Posted Feb 6, 2011 0:14 UTC (Sun) by BrucePerens (guest, #2510) [Link]

We're talking about a policy that's analogous to a corporate sexual harassment policy

OK, let's look at some corporate sexual harassment policies, then. First, it's important to recognize that they are regarding the environment in which a person has to spend much of their life working, not just a conference. But they have a lower standard that we seem to have for conferences, and real rules. This is from http://www.elinfonet.com/human-resources/Sexual-Harassment/

In June, 1998, the United States Supreme Court issued two opinions addressing an employer’s liability for sexual harassment in the workplace—Faragher v. City of Boca Raton, Fla., 118 S. Ct. 2275 (1998), and Burlington Industries, Inc. v. Ellerth, 118 S.Ct. 2257 (1998). Although the Court’s opinion in these two cases left a number of issues to be resolved by the lower courts, the Court’s decisions in both Faragher and Burlington Industries unequivocally demonstrate the importance to an employer of developing an effective and fair sexual harassment policy, communicating that policy to company employees, and taking prompt corrective action when sexual harassment is found to have occurred.

Definition of Sexual Harassment

Regulations promulgated by the Equal Employment Opportunity Commission (“EEOC”) defines sexual harassment as “unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment; (2) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual; or (3) such conduct has the purpose or effect or unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment.”

There are two specific forms of unlawful sexual harassment, including (1) quid pro quo harassment, and (2) hostile working environment harassment, both of which are described below. Although the line between these forms of harassment has been blurred by recent Supreme Court decisions, they continue to be important elements of any sexual harassment analysis.

Quid Pro Quo Sexual Harassment

Quid pro quo harassment occurs when an individual’s submission to or rejection of sexual advances or conduct of a sexual nature is used as the basis for employment decisions affecting the individual or the individual’s submission to such conduct is made a term or condition of employment. Such behavior must be engaged in by an individual with the power to effect the employment action or decision affecting the employee. Actionable sexual harassment can arise out of consensual sexual relationship between a supervisor and a subordinate employee, generally in situations in which the consensual relationship ends and adverse employment consequences befall the subordinate.

Hostile Environment Sexual Harassment

“Hostile work environment” sexual harassment exists when unwelcome sexual advances, request for sexual favors and other verbal or physical conduct of sexual nature has the purpose or effect of unreasonably interfering with an individuals work performance or creates an intimidating, hostile, or offensive working environment. 29 C.F.R. § 1604.11 (a)(3).

In order to establish a hostile environment sexual harassment claim, an employee must show the following:

the harassment was unwelcome
the harassment was based on gender
the harassment was sufficiently severe or pervasive to create an abusive working environment
the employer had constructive or actual knowledge of the harassment
the employer took no prompt and remedial action

To determine whether an environment is hostile or abusive, a court will look at all the circumstances, which may include the following:

the frequency of the discriminatory conduct
the severity of the discriminatory conduct
whether the discriminatory conduct is physically threatening or humiliating or a mere offensive utterance
whether the discriminatory conduct unreasonably interferes with an employees work performance

An employee is not required to show that he or she suffered psychological injury as a result of the hostile or abusive work environment. The Supreme Court uses the “reasonable person” standard—reasonable person must find the environment hostile or abusive, and the victim must subjectively perceive the environment to be abusive.

Debugging conference anti-harassment policies

Posted Feb 6, 2011 0:17 UTC (Sun) by mjg59 (subscriber, #23239) [Link]

...which appears to be a list of a variety of subjective rules. What point are you actually trying to make?

Debugging conference anti-harassment policies

Posted Feb 6, 2011 0:27 UTC (Sun) by BrucePerens (guest, #2510) [Link]

The one that stands out most is:

whether the discriminatory conduct is physically threatening or humiliating or a mere offensive utterance

The point here is that an environment where obscentity is used is not for that reason alone a sexually harassing environment. The presence of a physical threat or humiliation is evaluated. Certainly we must entirely prohibit physical threats and humiliation at our conferences, and we can do so with much more precise language than we are using. But "mere offensive utterance" is so subjective that whether or not you are guilty is not based upon a "reasonable person" standard but upon the specific people who make the decision.

Debugging conference anti-harassment policies

Posted Feb 6, 2011 0:36 UTC (Sun) by mjg59 (subscriber, #23239) [Link]

With the difference between "humiliating" and "mere offensive utterance" being precisely and objectively defined?

Debugging conference anti-harassment policies

Posted Feb 6, 2011 0:48 UTC (Sun) by BrucePerens (guest, #2510) [Link]

With the difference between "humiliating" and "mere offensive utterance" being precisely and objectively defined?

Obviously whether a communication is directed toward a person or class of people would be a determination. Calling a woman "b***h" is intended to humiliate her. Undirected obscentity is merely offensive.

But this is not to say that courts or corporate sexual harassment policies have really grappled with the subject, either. In fact, there is one place where they seriously blow it, which is that they consider harassment to be only unwelcome advances. Making it entirely dependent upon something the recipient decides after the message has already been sent. A fair rule would simply direct employees not to make such advances to their co-workers.

Debugging conference anti-harassment policies

Posted Feb 6, 2011 0:55 UTC (Sun) by mjg59 (subscriber, #23239) [Link]

Well, that would be one determination - but it's hardly the only one. Which seems to support my point. The rest of the world doesn't rely on precise and objective definitions of acceptable and unacceptable behaviour, and so your argument that a conference anti-harassment policy should doesn't seem to be terribly grounded in reality.

Debugging conference anti-harassment policies

Posted Feb 6, 2011 1:00 UTC (Sun) by BrucePerens (guest, #2510) [Link]

So because those deciding a loosely-related topic don't do better, you think you don't have to either. And thus ignoring the fact that you could have drafted a fair policy, and still can is in some way OK, even though people are being oppressed and treated unfairly.

That hardly seems ethical.

Debugging conference anti-harassment policies

Posted Feb 6, 2011 1:10 UTC (Sun) by mjg59 (subscriber, #23239) [Link]

It is impossible to simultaneously achieve your definition of a fair policy and for that policy to achieve its desired goals for reasons that have been previously explained. While it's clear that conference organisers can take advantage of the fact that we're working in a grey area in order to unfairly punish individuals, the reality is that conference organisers can do whatever they want at their conference anyway. I haven't seen any evidence that they tend to do so, and I don't think I've seen any cases where the anti-harassment policy has been used to oppress or treat people unfairly.

Debugging conference anti-harassment policies

Posted Feb 6, 2011 23:20 UTC (Sun) by shmget (subscriber, #58347) [Link]

"I don't think I've seen any cases where the anti-harassment policy has been used to oppress or treat people unfairly."

Have you read the article your are commenting on?
I would imagine that Mark Pesce does not share your selective blindness.

Debugging conference anti-harassment policies

Posted Feb 6, 2011 23:30 UTC (Sun) by mjg59 (subscriber, #23239) [Link]

The policy states that no sexual images should be displayed in public places. Mark's keynote displayed sexual images in public places. There's nothing subjective whatsoever about the decision that followed, and Bruce's statement was related to the distinction between subjective and objective decision making. So on that basis, no, it wasn't used to oppress or treat anyone unfairly.

Mark's made no indication that he believes that the organisers' decision to apologise was unfair. In fact, without being required to in any way whatsoever, he made a personal apology. So even on the grounds that you're arguing, there's no evidence that anyone was oppressed or treated unfairly.