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Wednesday, December 20, 2017

Sexualized Misconduct

Michael Dorf has two posts on the Alex Kozinski saga. In discussing the various allegations against the now-former judge, Dorf uses the term "sexualized misconduct" to describe some of Kozinski alleged behavior. That term captures actions outside of employment (such as his comments and unwanted touching of women during visits to law schools) and conduct of a sexual nature that does not constitute harassment or discrimination. I want to consider the latter and figure out whether it exists.

Consider some of the things Kozinksi and others have been accused of doing: Showing or talking about porn to female clerks and employees, talking about sex and one's own sexual activity (although without explicitly propositioning the listener), asking about the listener's sexual activity (although without explicitly propositioning the listener), telling sexually explicit stories and jokes that are not at the expense of the listening employee.

This behavior is boorish and obnoxious. It is "sexualized misconduct"--misconduct that involves sex. But is it unlawful discrimination/harassment/hostile environment "because of sex"--what Title VII requires by its terms and the 14th Amendment requires by interpretation? And when does discussion of sexual things cross the line into unlawfulness? Are all discussions of anything sexual, at least between male supervisors and female employees, per se hostile environment? Or (as one law prof correspondent suggested) is it evidence of a hostile environment, but requiring a broader contextual judgment? Is sex and sexual activity different than politics or sports, so women are going to be disadvantaged by such talk? On one hand, many of the sexual conversations objectify women in some way (Kozinski's "knock chart," for example); so even if women are as willing and able in the abstract to talk about sex as men, they remain differently situated for purposes of such conversations. On one other hand, to say yes relies on stereotypes and assumptions about women and how they react to discussions of sex, sexuality, and sexual activity compared with men.

So how does or should the law treat sexualized misconduct in the workplace that does not involve unwanted touching or propositions? Is everything sexual off-limits and should it be?

Note some broader consequences if the answer to that question is no. It creates a divide between elite high-profile professions and workplaces and everyone else. Even if not prohibited by Title VII, sexualized misconduct disgusts the public and creates sufficient anger and backlash to drive a judge from the bench* or a television personality from the airwaves.** But it is not going to effect the manager at Wal Mart, whose misconduct would be outside the reach of Title VII but outside the public eye (or public interest) as to cause him to lose his job.

[*] Yes, Kozinski allegedly did far more than talk about sexual activity, so this is not the only reason he was driven from the bench.

[**] Ditto.

Of course, that divide exists even if sexualized misconduct is because of sex and even as to conduct that moves into propositions and touching. Plaintiffs must show that harassment was "severe and pervasive" as to change the conditions of employment. Susan Estrich's defense of Kozinski warned about "bringing men down for conduct that, even if true, does not rise to the level of harassment," which I (perhaps in a forgiving mood) interpret as referring to conduct that is not sufficiently severe and pervasive to be a violation of Title VII or the Constitution. The public becomes disgusted and angry about misbehavior that might not rise to the level of a violation, driving out those in high-profile positions. Meanwhile, the manager at Wal Mart gets away with conduct that may be far worse because of difficulties of proof and the imbalances in the legal system. One way of thinking about this is that the public is holding those in positions of power to higher standards--it is not enough to refrain from unlawful conduct, they also should refrain from disgusting, boorish, and obnoxious conduct (at least of a sexual nature). Another way is that the law, as it is being applied at all levels, has not caught up with where public attitudes are moving (at least for the moment).

Posted by Howard Wasserman on December 20, 2017 at 09:31 AM in Howard Wasserman, Law and Politics | Permalink


While there are many responses I have to this entire situation I'll repeat what I said before in the thread calling for him to resign. Where do we go from here? I don't believe there is a self-evident or objectively-based social reality when it comes to making judgments about these types of situations. We are constructing social norms not deriving laws of physics. My grievance is that when it comes to constructing social norms we should not be making it up as we go along. For one, that is highly subject to post-hoc bias (something which looks bad now would not have looked bad in the past) and so the person socially judged has no prior notice of their bad behavior and so no opportunity to exercise self-control or self-restraint. Further it tends to promote arbitrary and capricious social prosecutions because there is no standard other than raw power. Anything can be made plausible and the line between vengeance and justice becomes erased. As near as I can tell that seems to be the actual end-game to which we are headed. Why? Because in building a more just society requires a blue-print and I see none in the offer.

Posted by: James | Dec 20, 2017 1:36:25 PM

Thanks for that interesting post , you tend with all due respect , to put judges , and other officials or public servants or other famous figures or managers , in the same basket , and this is wrong !! First , formally , the US constitution , provides so ( article III , section 1 ) :

" The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behavior, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office. "

End of quotation :

So , we read clearly : " during good behavior …. " it is provided so , good behavior is a constitutional obligation !! Can one claim , that sexual misconduct , brutal speech and so forth…. Towards women , even if not addressed to the specific women present , by a judge , wouldn't be considered as " bad behavior " .I doubt it a lot !! A judge , is not an ordinary civil servant . The public , should , and put in fact , much more trust in him , over any other official , this is sufficient in this regard . Trust , that is to say , impartial attitude , clean of bias , judging the case impartially , without any introduction , of personal bias , views , stigmas and so forth……


Posted by: El roam | Dec 20, 2017 1:43:51 PM

I just didn't have much time , but , he who wants , can engage in international or national domestic laws comparison , and in this regard , to my best knowledge , the Israeli law , is the utmost progressive one , in protecting from sexual abuse and sexual misconduct , here for example :

" prevention of sexual harassment law " here :



Posted by: El roam | Dec 20, 2017 1:59:44 PM

In this regard , one may find great interest in this post ( " the interdependent third branch" , very recommended blog by itself ) :



Posted by: El roam | Dec 24, 2017 10:31:34 AM

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