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Opening Arguments

Let's be reasonable

Marsha Bradford "believes she's been wronged," the victim of "inappropriate conduct" that created a "work environment" she found "offensive." The city of Bloomington, which employed her, says Bradford took isolated comments that were not directed at her and used them as the basis for her complaint.

"The number of incidents Ms. Bradford has brought to the City's attention is quite small and spread over many months. None of them involved improper touching. They were in the nature of pranks or joking comments and not in any reasonable person's view 'severe,'" the city argued in its 98-page statement.

That "reasonable person" argument goes only so far in "hostile environment" cases, which tend to focus on the subjective perceptions of the person who claims to be harmed by the environment. Such an approach does not lend itself to objective, clearly defined law in which everyone knows what the rules are. But that's the way it is. If you're one of those people who still say "nobody has a right not to be offended" probably should not study harassment case law; it would just drive you crazy.

Interestingly, not too many management lawyers have tried to use the First Amendment to fight against hostile-environment claims, although that would seem a reasonable defense.


Tue, 03/21/2006 - 8:22am

Seems like management wouldn't want to get too carried away with a Free Speech theory. I assume a company would want to be able to control how employee's speak to clients, for example. And if you control how they speak to clients, you can control how they speak to each other, I presume.

And you probably don't want to get into claiming that the Free Speech rights of the company are at stake because that would seem to imply some sort of endorsement by the company of whatever the employee was saying.