Pornography and Public Employment: Further Implications of Garcetti

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5 Responses

  1. Howard Wasserman says:

    Suppose she had been fired just off her refusal, grounded in First Amendment and/or Equal Protection ideas, to participate in the audit? Or suppose she had been demoted after that refusal? Any Title VII and/or First Amendment claim then?

  2. Paul says:

    As far as the First Amendment, if she were fired for just refusing to participate in the audit (either because she had privacy concerns for the physicians or did not want to view pornographic material), I think that might be more seen as insubordination and she would probably lose because her “speech” would be either as viewed as an employee pursuant to official duties (per Garcetti) or at the very least speech on a matter of private interest, not public concern (per Connick).

    Equal Protection? No fundamental right involved, so you would either have to show that the government classification was not substantially related to an important government end (unlikely) or you would have to go the “class of one” route and I think the Supreme Court is well on its way to say that that theory is not available in employment cases in the Enquist case in which the Court just granted cert.

    Demotion vs. constructive discharge probably doesn’t make a whole lot of difference under the First Amendment as Garcetti itself involved a demotion for disagreeing with a supervisor’s decision.

    As far as Title VII on demotion, a demotion is still an adverse employment action under all circuit precedent for sexual harassment, discrimination, and retaliation cases (though there is a broader standard for retaliation adverse employment actions after the Burlington Northern case). If she in fact was discriminated, harassed and/or retaliated against and was demoted, she could have a cognizable claim under Title VII.

  3. Howard Wasserman says:

    Your last point is what I was trying to get at: Is it “harassment” to make her look at pornography that is on a computer she is auditing as part of her job?

  4. Paul says:

    Harassment is not the issue in the First Amendment context. There, the issue is whether her speech was non-official capacity speech on a matter of public concern.

    As far as Title VII sexual harassment, the conduct would have to be severe or pervasive (not sure this conduct would qualify), subjectively and objectively harassing (maybe being generous), and “because of” sex. I think this last element might be hardest to prove, especially if similarly-situated male employees were also assigned to the same audit.

    The 9th Circuit employs something called the “reasonable woman” standard when it comes to sex harassment, but we’re not in the 9th Cir. (far from it) and it still doesn’t help with the causation inquiry noted above.

  5. Hans Bader says:

    I don’t really see much of a harassment case here.

    The Fifth Circuit expressly rejected the Ninth Circuit’s “reasonable woman” standard for sexual harassment cases, in favor of a gender-blind “reasonable person” standard, in DeAngelis v. El Paso Municipal Police Officers Ass’n, 51 F.3d 591 (5th Cir. 1995).

    So the plaintiff had no right to dump the unpleasant task of reviewing the porn on her male co-workers.

    Moreover, the Supreme Court cast doubt on whether exposure to sexual speech that is relevant to your job can qualify as sexual harassment in Clark County v. Breeden (2002), saying that the fact that your job requires you to view sexual material weighs not just against the claim that viewing it harasses you, but also even against your claiming to have a reasonable belief that it constitutes harassment.

    (The Breeden case rejected the claim that the female plaintiff had a Title VII retaliation claim for complaining about an instance of exposure to such material).

    And in Butler v. Ysleta Ind. Sch. Dist. (5th Cir. 1998), the Fifth Circuit said that the fact that you were repeatedly exposed to sexually offensive material isn’t usually enough where it was aimed at you based on your gender.

    Here, there’s no proof that the plaintiff wouldn’t have been asked to do the unpleasant task had she been male rather than female, is there?