The Nightmare BE HEARD Act: Be Knocked Out Of Business By Legal Fees Over Trivialities
(Or just personally lose everything, after you're, say, accused of making a joke someone finds offensive.)
Hans Bader writes at Liberty Unyielding about the Biden "Racial Equity Plan" announced recently.
He wrote in an email with the link that this "is not just about racial issues (although it does expand affirmative action and federal spending a lot). It would redefine workplace speech that is not severe or pervasive as 'harassment.'"
It would likewise "radically transform American employment law in an extreme, anti-business way, subjecting even the tiniest employers to crushing burdens, such as massive attorneys fees and unlimited punitive and compensatory damages -- mostly in cases having nothing to do with race!"
There's much more at the link. An excerpt on the speech bit:
Under current Supreme Court precedent, conduct has to be more than trivial -- "severe or pervasive" -- to constitute sexual or discriminatory harassment. (See Clark County School District v. Breeden (2001)).So employers don't need to ban harmless joking. The bill complains that "some lower court decisions have treated 'severe or pervasive' as a threshold for liability." But that's exactly what the Supreme Court did.
By eroding that limit, the bill will pressure institutions to restrict speech that is not severe or pervasive, leading to First Amendment violations: Courts have overturned campus sexual harassment policies that prohibited speech that was not severe or pervasive. (See Saxe v. State College Area School District (2001); DeJohn v. Temple University (2008)). A college lost a First Amendment lawsuit after it punished a professor for a sexual metaphor that mildly offended listeners. (See Silva v. University of New Hampshire (1994)).
The bill declares that several well-known court rulings contain an "erroneous analysis" about what constitutes sexual harassment -- such as "Black v. Zaring Homes."
But there was nothing wrong or odd about that decision, which was written by a female judge. It dismissed a sexual harassment lawsuit because the plaintiff had sued over trivial things, like a worker joking about liking "sticky buns," while reaching for a pastry.
By rejecting sensible court rulings clarifying what does -- and doesn't -- constitute "harassment," the BE HEARD Act could lead to sexual harassment law being unconstitutionally vague and overbroad.
The definition of harassment is already rather vague. A court ruled that a standard college sexual harassment policy was unconstitutionally vague as applied to a professor's longstanding sexually-oriented lectures, because it lacked detailed guidance fleshing out its meaning. (See Cohen v. San Bernardino Valley College (1996)).
By classifying more speech as harassment, the BE HEARD Act will lead to censorship. Its many provisions hostile to employers will harm the business climate and make it harder for businesses to thrive and create jobs.
The whole article is worth reading. Very disturbing.
If only the Libertarians were running a viable candidate -- like one anyone who isn't libertarian has heard of, for starters.
Because if you can't effect government regulation of private behavior, the next best thing is to implement corporate regulation of it.
Besides, suing your neighbor for calling you a name won't get you much money, but suing an employer if a coworker calls you a name will be a windfall. Those businesses are made of money, ya know.
Conan the Grammarian at July 30, 2020 5:26 AM
Sounds like the LAWYERS BE PAID act to me.
Shtetl G at July 30, 2020 8:16 AM
If only the Libertarians were running a viable candidate
They're going for the moon shot right out of the gate, when they need to be doing the hard work of building up a bench.
Yes, that's right LP: run for and win dog catcher, city council, mayor, an water district positions. Show the voters you can get shit done.
Work your way up into the state legislature, governors, and then US House and Senate seats. Again, get shit down. Now take your shot as POTUS.
If for some reason they could win POTUS without underlying support, Congress would be running circles around the White House and blaming the LP for any whoopsie moments.
I R A Darth Aggie at July 30, 2020 12:11 PM
These people are seeking unlimited power to destroy you even if they are wrong. For example, in England, law students objected to discussion of rape in a criminal law class--do you want a lawyer for rape who never heard the word in law school? Several lit profs have been hit for using the N-word when it is the title of a prominent book by a black author, and one for reading from Letter from a Birmingham Jail by ML King. In lit class also, there is constant sexual content in literature (the Decameron for example) because there is constant sexual content in life, but students have complained.
There are also cases where the hearer didn't understand what was said and still got offended, like a prof who used the word "niggardly" which is not the N word. Some people think everything is about them, like if someone says "the elephant in the room" they think it is a poke about their weight. People are now objecting to "black friday" but "in the black" means profitable (a good thing) from accounting where losses are in red (in the old days of physical ledgers). It is nearly impossible to speak without offending someone, since there are idiots and fanatics all over.
cc at July 30, 2020 12:25 PM
Have you looked at the people managing the Libertarian Party? All they want is to get high and get laid. These are not serious people. They don't understand the concerns of people who actually have jobs or families. Of course they aren't running for lower office. You are lucky if they are sober enough to keep their clothes on.
Ben at July 30, 2020 12:49 PM
I've been saying that for years. The LP is not a serious governing party. It's children who want to be able to smoke pot in public; not realizing that to pass such a law will require having the support of members of Congress, that just capturing the presidency won't effect that change. Like too many candidates promising that "On day one, I'll make this happen," they don't seem to realize the limits the Constitution places on presidential power. They want a daddy who will let them smoke pot.
Now, there are some serious libertarians who want a limited government - low regulation, low taxes, etc. - and understand the limitations on each branch. But they're not what seems to be animating the Libertarian Party these days.
Can you really expect to be taken seriously as a party when Vermin Supreme is one of the candidates running for your party's nomination? And the guy proposed as his running mate is now the party's VP candidate.
William Weld and Gary Johnson were the first serious politicians with practical experience that the LP ever nominated and, based on this year's field, look to be the last.
While I don't want the French system of having more political parties than types of cheese, I would like to see a viable third party, but only a third. Our politics are optimized for polarity; we are not a parliamentary democracy.
Conan the Grammarian at July 30, 2020 12:58 PM
Can you really expect to be taken seriously as a party when Vermin Supreme is one of the candidates running for your party's nomination?
Seems like he's related to https://twitter.com/shoe0nhead . At least he's not running around at the LP convention sans clothing.
I R A Darth Aggie at July 30, 2020 2:56 PM
" All they want is to get high and get laid. "
Unlike the Kennedys and the Clintons and the younger Bushes at least they're open about it.
We've got Governor "Yeah I Cheat On My Wife So What" Newsom and he's about as corporate-looking as a fellow could be. If the corporation hires the ax murderer from American Psycho, anyway.
Gog_Magog_Carpet_Reclaimers at July 30, 2020 8:05 PM
One problem with LP running for lower offices is its tough to when you don’t believe those jobs should exist in govt.
I’m running for obudsman because I feel we shouldn’t have one, isn’t a good slogan.
Joe j at July 31, 2020 6:11 AM
I may not be a fan of Newsom, but at least he keeps his pants on in public. I know that is a pretty minimal requirement to judge a political representative by, but it is one the Libertarian Party has failed to accomplish.
Ben at July 31, 2020 7:15 AM
Ben, if dropping trou at inappropriate times disqualified people from leadership, Jefferson, Kennedy, Clinton, Eisenhower, FDR, Harding, and LBJ never would have been elected.
Mainstream politicians, one and all. The good news is their ilk are still available in both Democrat AND Republican flavors! Woo hoo! Seriously, Newsom's got the face for billboards, like a young Biden, or Kerry.
Gog_Magog_Carpet_Reclaimers at July 31, 2020 6:55 PM
> at least he keeps his pants
> on in public.
Dafuq? Do you mean Except for the time he was nailing his campaign manager's wife? I can't remember whether it was their family or his own which had the most minor children to humiliate in the resultant media scrum.
Wikipedia may well have mopped up the mess, but there's got to be a conservative website with a long enough memory to provide the deets FOR SOMEONE WHO DOES HOMEWORK.
The irony of this scandal blossoming as he was instructing Californians how to respect family composition (for gays) was jaw-dropping.
And he got away with it.
Crid at July 31, 2020 8:37 PM
By all means Crid inform me about the time Newsom stripped at a public convention on stage and began an interpretive dance. Because I can remember when it happened at the Libertarian Party's convention.
Hey, I get I set a ridiculously low bar for any politician to meet. I too would like more from those who represent me. But even that was not a standard the Libertarian Party was able to meet.
It is always a choice of the lesser evil. If I have to choose between the guy who sleeps around and the one who can't give a speech clothed I guess I'll have to go with the man-slut.
Gog, agreed on Newsom's face. Put him in a suit, gel the hair, and don't let him speak and he comes across as presentable. It is all the other stuff that makes him a terrible candidate.
Ben at August 2, 2020 6:51 PM
William Weld and Gary Johnson were the first serious politicians with practical experience that the LP ever nominated
Not quite. Ron Paul had four terms in Congress under his belt when he ran as the LP candidate in 1988.
Rex Little at August 3, 2020 1:06 PM
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