random quotes ... to amuse, inspire, enrage:
  Analysis [of whether or not the accusations that an employer sleeping with an employee constitute sex discrimination] is complicated by the fact that a difference in sex is not a necessary condition of sexual activity and hence (most courts think) of sexual harassment. There is plenty of homosexual activity these days (perhaps all days); some of it occurs in the workplace; and some involves the extorting of sexual favors by superiors, or other behaviors that when heterosexual expose employers to liability for sexual harassment in violation of Title VII's prohibition of sex discrimination. E.g., Hopkins v. Baltimore Gas & Electric Co., 77 F.3d 745 (4th Cir. 1996); Morgan v. Massachusetts General Hospital, 901 F.2d 186, 192 (1st Cir. 1990). And then there is the specter of the perfectly bisexual harasser--a number 3 on the Kinsey Scale of sexual preference--who by definition is indifferent to the sex of his victims and so engages in sexual harassment without discriminating on the basis of sex. See Barnes v. Costle, 183 U.S. App. D.C. 90, 561 F.2d 983, 990 n. 55 (D.C. Cir. 1977). With examples like these the government urges us to affirm the dismissal of the plaintiffs' claim of sexual harassment on the ground that, since the harassment was impartially directed against the male and the female accused of improper sexual activity, there was no discrimination on grounds of sex.

We do not find this class of arguments compelling, and are rather surprised to find the Department of Justice urging them. Although supported by dicta in some cases, id.; Rowinsky v. Bryan Independent School District, 80 F.3d 1006, 1016 (5th Cir. 1996); Rabidue v. Osceola Refining Co., 805 F.2d 611, 620 (6th Cir. 1986); Henson v. City of Dundee, 682 F.2d 897, 903-04 (11th Cir. 1982), such arguments interpret sex discrimination in too literal a fashion. Sexual harassment was brought under the aegis of Title VII's sex discrimination clause because it makes the workplace difficult for women because of their sex. There is some homosexual harassment in the workplace and a little bit of sexual harassment of men by women, but these are relatively esoteric practices that do not detract seriously from the fact that sexual harassment is a source of substantial nonpecuniary costs to many working women. It would be exceedingly perverse if a male worker could buy his supervisors and his company immunity from Title VII liability by taking care to harass sexually an occasional male worker, though his preferred targets were female. See Steiner v. Showboat Operating Co., supra, 25 F.3d at 1464.

tagged: same-sex sexual harassment, sexism, sex discrimination, caselaw
  —Richard Posner, opinion by J. Posner, 7th Circuit Judge, 5/20/1996 decided .


Wednesday, March 4th, 2009

Just like Maddow after Jindal, I am rendered speechless by the DOJ memos released on Monday. Most were by my former Con Law professor; among the notable exceptions was the repudiation of these policies last October. Holy Constitutional Law, Batman. * DOJ – Office of Legal Counsel memos * NYT (3/3) * LAT (3/3) * […]

sweet (day 1: stop the bush regulations)

Wednesday, January 21st, 2009

sweet: Obama halts all regulations pending review 17 hours ago AP 2009/01/20 WASHINGTON (AP) — One of President Barack Obama’s first acts is to order federal agencies to halt all pending regulations until his administration can review them. The order went out Tuesday afternoon, shortly after Obama was inaugurated president, in a memorandum signed by […]

do people ever actually *read* Roe & Casey?

Sunday, December 7th, 2008

Ross Douthat’s op-ed in the NYT is a showcase for the deceptive rhetoric of the right. The piece is a long paean to the supposed reasonableness and willingness to compromise of the anti-choice movement. He wraps up by attempting to lay the “blame” on Roe and Casey for the “failure” of Americans to reach peace […]

reasonable limits on presidential pardoning power

Wednesday, November 12th, 2008

I’m contemplating Bush’s potential pardon of his various underlings for their roles in torture or other illegal actions, and I’m angry. The Presidential pardoning power can be and should be used for humanitarian reasons — for mercy, or for justice, when for whatever reason those are not available through ordinary means. There’s also a good […]

the bush administration: destroying the media environment and the real environment, again

Thursday, October 18th, 2007

The NYT tells us today about Kevin Martin & the FCC’s new plan to relax the cross-ownership rules, which restrict large corporations from dominating entire urban markets. And, on the same page, on the same day, a story that has all the classic hallmarks of the Bush approach to the environment: scuttle environmental protection schemes […]


Friday, May 18th, 2007

James Comey’s testimony Tuesday before Congress was riveting.

Requiem for habeas corpus

Monday, October 30th, 2006

Sometimes one despairs and relies on others to speak truth to power. Many have done so with respect to with respect to the “Military Commissions Act of 2006″, but Kent Keith Olbermann‘s was particularly eloquent. update: Ahem. Apparently that’s Keith Olbermann, and Kent Brockman. Another sign of aging, because I would never ordinarily confuse the […]

sunday morning reading

Saturday, October 29th, 2005

Forbes apparently publishes an annual list of the top-earning dead celebrities and creators. They note that Shakespeare would be way up there: [Forbes] calculated what the Bard’s heirs might collect each year if he were still under copyright and estimated it at $15 million with over 5,000 performances of his plays and hundreds of thousands […]

morning tea round-up

Saturday, October 29th, 2005

Yahoo!’s historically less-than-stellar track record of protecting user privacy is made much, much worse by this news: Yahoo! turned over a user’s identity information to the Chinese government, and now journalist Shi Tao has been sentenced to ten years for “e-mailing a government’s plan to restrict media coverage around the 15th anniversary of the Tiananmen […]

disappeared information

Wednesday, October 27th, 2004

bradblog chronicles the disappearance of info from the Bush administration websites chomsky reminds us of the reagan administration destruction of documents democratic underground.com covered the replacement of the National Archivist with a partisan hack [2004-05-05] — just in time to cover the release of the Bush I records! How con-veeeenient.

the media spins

Thursday, October 7th, 2004

“[The media] would still roll over for Bush in tonight’s debate, if only he had told his lies crisply and with folksy assurance.”

Good commentary on torture memo justifications from fafblog!

Tuesday, August 10th, 2004

From Fafblog! the whole worlds only source for Fafblog., Saturday 12-June-2004: Torture: A last recourse we may require sooner and sooner The Medium Lobster has been disquieted of late at by the latest round of Iraq torture scandal news. There has been much uproar – among that irritating minority which have not been studiously scrutinizing […]

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