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Your Law Professor discusses WFC, SFWA, Sexual Harassment and Other Stuff

The recent nauseating incidents at World Fantasy Con prompted the following response from SFWA, which all members received in their e-mail yesterday:

“The SFWA administration, employees, members, and volunteers are responsible for assuring that all persons who participate in SFWA programs and activities do so in an atmosphere free of all forms of harassment, exploitation, or intimidation. Sexual harassment is unlawful and impedes the realization of SFWA’s mission to inform, support, promote, defend and advocate for our members. SFWA will respond promptly and effectively to reports of harassment and discrimination of any kind and will take appropriate action to prevent, to correct, and if necessary, to discipline behavior that violates this policy. This policy applies to any events or spaces sponsored by SFWA, including but not limited to the SFWA discussion Forums, the SFWA website, the Nebula Awards Weekend, and the SFWA suite."

I wholeheartedly agree with the spirit of this policy statement. But…

What follows is my lawyer's quibble with the italicized passages. They perpetuate some common misconceptions about the law related to discrimination in general and sexual harassment in particular. I spend a lot of time in my business law classes trying to disabuse my students of these errors, and I wish to help the SFF community to understand them better. I hope y'all will take these comments in that spirit. As I say, I have no problem whatever saying that the behavior at WFC sucked, and that SFWA and organizations do well to try to prevent it from happening again.

Discrimination in General

Many people will erroneously say, "Discrimination is illegal" or even "Discrimination is wrong" without really thinking about what they mean. But these statements, as written, are false.

To discriminate is to treat one person (or thing) differently from another. This is something people do all the time, and, in fact, something that we are unable to prevent ourselves from doing. When, for example, SFWA awards a Nebula to a writer who gets more votes than another writer, it is literally discriminating among writers based on votes. Mostly people don't find this objectionable, and obviously it's not illegal. You can easily think of personal examples in which you treat one person (a friend) differently than another person (a stranger); this is discrimination too, but it's not illegal and (generally) not thought of as offensive.

So we begin with this: Most forms of discrimination, in most contexts, are both legal and unobjectionable.

Certain particular forms of discrimination, in certain particular contexts, are thought of as objectionable, and a narrower group of these is illegal. The ones that are illegal are all defined by specific statutes. So, for example, discrimination in employment based on race, color, religion, national origin or sex is forbidden (for most, but not all employers) by Title VII of the Civil Rights Act of 1964. Discrimination in public accommodation based on race, color, religion or national origin (but not sex) are forbidden by Title II of the same statute. Discrimination based on disability in both employment and public accommodation is forbidden by Titles I and III, respectively, of the Americans with Disabilities Act of 1990. Discrimination based on sexual orientation, unfortunately, is forbidden only by a handful of state statutes, and there is generally no federal prohibition against it. And so forth.

The broader class of discrimination that many people find objectionable, but which is not (yet?) illegal, we generally call invidious discrimination. This refers to treating people badly (or even differently) because of their membership in a larger class of people — in other words, treating individuals as representatives of groups, rather than as individuals. In this category there are types of discrimination that:

  1. would be illegal if they occurred in different contexts. E.g., discriminating based on religion at a purely social function like a party isn't illegal, but doing so in an employment context is.
  2. would be illegal if they were on a different basis. E.g., discriminating in private employment based on someone's political affiliation isn't illegal, but doing so based on their religion is.
  3. would not be illegal unless you changed both the context and the basis. E.g., discriminating based on political affiliation at a purely social function.

Among the third group there are plenty of examples of invidious discrimination which some would find offensive and others wouldn't. For example, if you refused to speak civilly to me at a party because you generally don’t like lawyers, this would be an example of invidious (but not illegal) discrimination. Personally I would find it offensive, because I think I deserve to be dealt with on my own merits, rather than as a representative of lawyers in general. But it's not illegal, and there are probably reasonable people who would not even find it objectionable.

Thus, for SFWA to say that it will respond to reports of discrimination in any form is an absurdity, and isn't even what SFWA meant to say. I think SFWA meant to say that it would respond to reports of invidious discrimination, but I'm not even sure of that. (Would SFWA take action against lawyer jokes told at the annual Awards Ceremony, much as they would hurt my feelings?) On the other hand, I don't think SFWA meant to say it would respond only to illegal discrimination, as the bad behavior at WFC mostly wasn't illegal (although some of it was, but not because of discrimination law, see below). Probably the question of exactly what types of discrimination SFWA finds objectionable and worthy of response needs considerably more thought.

Sexual Harassment in Particular

Sexual harassment is illegal in certain contexts, but only because it represents a category of a broader discrimination that is illegal. In other words, there is no specific sexual harassment statute (at least not on the federal level). Thus, for example, sexual harassment in employment is illegal because it is a form of sex discrimination in employment, already forbidden by Title VII (see above). To be precise, illegal sexual harassment in employment has taken place when you:

  1. are subjected to unwelcome harassment,
  2. based on sex,
  3. that affects a term, condition or privilege of your employment,
  4. in a context where your employer (the entity that pays your salary) can be held responsible for the harassing activity.

By the same token, racial harassment, religious harassment or national-origin harassment are all illegal in the employment context, if the elements above are satisfied (substitute "race" for "sex," etc.), because they too represent violations of Title VII. Sexual harassment in education would be similarly illegal as a form of sex discrimination in education, forbidden by Title IX of the Education Amendments of 1972. Disability-based harassment in employment would violate Title I of ADA. And so forth.

Note, though, the other requirements on that list of elements. For example, if the harassing activity (by, say, a co-worker or an employee) occurred in a context where the employer isn't accountable for it at all (say, where the employer had no warning that it might happen and no way to stop it from happening) then illegal sexual harassment hasn't taken place, because employment discrimination is an action committed by the employer. Harassing activity by a co-worker is bad, but by itself it doesn't violate Title VII. (Although it might violate other law, see below.)

In the case of the behavior at WFC, if we assume that it was unwelcome harassment based on sex (probably true), the problem is that it didn't happen in a context where sex-based discrimination is illegal. It didn't affect a term, condition or privilege of employment (Title VII), didn't alter access to education (Title IX), etc. It occurred at a social gathering. It might arguably be discrimination based on sex in public accommodation, but Title II, as mentioned above, doesn't forbid that type of discrimination.

Thus, SFWA's statement sexual harassment is unlawful is generally false, and specifically false in the case of the WFC behavior. Again, let me emphasize that that behavior was rotten, and SFWA is right to police such behavior, just as those who run Burning Man are right to police such behavior there, even though it wouldn't be illegal.

Common Law Torts

However, some aspects of egregious con behavior have been illegal for centuries under the common law of England and its U.S. descendants. For example, common law has always forbidden battery, which is the deliberate touching of another person against his/her will. Even putting your hand on someone's shoulder, when the other person clearly and obviously does not want to be touched, is a battery. Additionally, any touching that would be offensive to a reasonable person (e.g., putting a hand on a person's genital area) is battery even when the perpetrator has no prior warning that the victim would not welcome that behavior.

(Note: It's the "unwanted or offensive to a reasonable person" part that makes this actionable. Obviously people engaged in a romantic encounter touch each other in all sorts of marvelous ways, but these are welcome and not reasonably offensive — that is, it is the sort of touching one expects/hopes to occur in such an encounter. As soon as someone says "No," however, it becomes unwelcome, and an immediate battery if it isn't stopped.)

Similarly, common law forbids assault, which is deliberately putting another person in reasonable apprehension of an immediate battery. So, if you make as if to touch a person's genital area but do not actually succeed because s/he backs away from you, you have committed an assault.

Note that battery and assault do not depend on particular settings in order to be torts, unlike discrimination generally and sexual harassment in particular, which both are illegal only when they happen in certain contexts (e.g., employment or education).

Therefore I think that organizations like SFWA would do better to police unwanted touching, or threatened unwanted touching, of any kind, rather than to hang their policy-hats on concepts like sexual harassment or discrimination. It is much closer to the spirit of the problem (invading personal space), and doesn't depend on legal categories that were designed for specific (and inapplicable) contexts.

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