By David French
Tuesday, February 28, 2017
Many years ago, when I was a brash young conservative
lawyer working in a big law firm, I said something that could have ended my
career (and almost certainly would have today). It was March Madness, and I was
running one of the firm’s two bracket pools. As a basketball snob, I disliked
the traditional pool because it was too dependent on sheer, dumb luck. As I
recall, lawyers’ ten-year-old kids had won the previous two years, and I wanted
a pool for serious fans only.
So, I created what I called the “conservative bracket,” a
pool that put a premium on picking upsets. In a firm-wide e-mail, I said you
could join the traditional, “liberal” bracket — where merit was irrelevant to
outcome and even the most ignorant fan could win a trophy — or you could join
the firm’s Republicans and test yourself against the best.
That wasn’t the offensive part. Just wait.
Once the tournament got rolling, I intended to start each
Monday with a fun and highly politicized summary of the weekend’s results. The
year was 1995, and the mighty Arizona Wildcats were upset by Miami of Ohio in
the first round — a result I predicted. So, in the gleeful opening paragraph of
my Monday morning firm-wide e-mail (sent to every lawyer, paralegal, and secretary),
I explained at some length that Arizona lost because it played “like a bunch of
girls.”
Okay, that was the offensive part.
The chairman of the firm’s management committee was a
liberal feminist, and the firm’s female partners were by and large quite
feminist. I was a lowly first-year associate. My job was of no consequence, and
I immediately heard through the grapevine that the partners were not pleased. I
braced myself for the consequences.
The next morning, I came to work and saw that my office door
was closed. When I opened the door, my office was empty and the walls were
covered with posters of women’s college-basketball teams. I turned around and
every woman in the firm was standing behind me, triumphant smirks on their
faces. My secretary grabbed my hand and led me down the hall to the women’s
restroom, where they’d put my desk and chair and taped “David’s Office” on the
door.
They responded to my ham-handed attempt at humor with
some humor of their own — humor with a point.
I wasn’t called in to human resources. I wasn’t
“counseled.” I didn’t have to attend diversity training. And I certainly wasn’t
fined. I kept rolling with my conservative bracket (I came in last), and I kept
sending firm-wide e-mails.
I thought of that incident while reading Eugene Volokh’s
analysis of a ridiculous decision from the Equal Employment Opportunity
Commission (EEOC), handed down earlier this month. The facts are simple: A
public employee wrote an e-mail to her supervisor saying that she thought that
government employees worked less than private-sector employees, but she’d been
“working like a civilian.” In response, her supervisor wrote this:
Wow . . . then I must be a damn
fool . . . cause I’ve been working like a Hebrew slave the last 9 years and
don’t have enough time to take off . . . at least somebody got it right.
That’s it. That’s the whole incident. The employee who
received the e-mail was Jewish, and while the supervisor (called “S1” in the
opinion) testified that he was referring to the period of Hebrew slavery
recounted in the book of Exodus, she said that the comment “dredged up memories
of how her family was targeted for systematically [sic] murder, incarceration, and deportation during the Holocaust.”
Thus, the EEOC said that even this single comment could constitute “hostile
environment” harassment:
In this case, S1 made the comment
in an e-mail to Complainant, and S1
knew that Complainant is Jewish. Although S1 only made such a comment once, the
comment packed a painful, potent punch. Specifically, S1’s comment made light
of the long and painful history of Jewish persecution and genocide.
That single e-mail cost the supervisor $20,980, $10,000
in damages and $10,980 in attorneys’ fees — a crushing financial blow for most
people. All because he made a joke about the book of Exodus. All because one
person was too sensitive to either laugh it off or politely push back. All
because the government is now subjectively policing the emotional impact of
individual e-mails.
As Volokh notes, “hostile environment harassment claims
aren’t always (or even usually) this easy to win,” but the governing law is
inherently vague — asking courts and commissions to define what’s “severe” or
“pervasive,” and requiring that they consider claims from the standpoint of a
“reasonable person in [the] complainant’s circumstances.”
So, what do human-resources directors do? Faced with
uncertainty, they retreat to a position far short of the legal line. They crack
down even more on employee interactions. In other words, one small act of
government censorship in one small case metastasizes through the system —
leading private and public employees to engage in even more acts of censorship
to avoid even a whiff of impropriety or illegality.
This is how free speech slowly but surely dies. It’s not
just the finding that the supervisor’s single jokey e-mail was unlawful
harassment. It’s not just the inevitable overreaction in HR departments across
the land. It’s in the slow and corrosive erosion of our free-speech culture,
where an entire society is taught that free speech ends exactly when personal
offense begins.
The result is a world like many Americans live in today,
where they keep their mouths shut at work, they keep a tight rein on their social-media
feeds, and they confine their true opinions to the most private forms of
communication. This culture isn’t everywhere, of course, but ask conservative
employees in entire areas of public- and private-sector employment if they’re
as free to speak as their progressive colleagues, and the answer is a
resounding “No.”
How free are they to disagree with their diversity
trainer? Can they argue against same-sex marriage with the same vehemence that
their colleagues ask for “marriage equality”? Are they as free to discuss, say,
the border wall or Trump’s executive order on immigration as their progressive
friends? One thing I can say for certain, I have conservative friends who are
afraid to test the proposition. They have mortgages to pay.
In my example, my colleagues responded to a joke with a
harmless prank, and the result was a good story along with a lesson learned.
Good manners matter, not because my job is at stake but because I care about my
colleagues. Escalate the stakes, however, and you create environments of
oppression and favoritism that build resentment, squelch the free exchange of
ideas, and teach Americans that free speech itself is a problem to be managed,
not a fundamental liberty to be protected.
No comments:
Post a Comment