Is a plaintiff's homophobia a legitimate defense against a sexual harrassment suit?

[LoZoccolo]

This assumes a gay defendant.

http://www.latimes.com/news/local/la-me-firefighters-gay-pride19-2009feb19,0,4356547.story

On edit: NOTE: This post does not assume that homophobia on the part of the firefighters has been established. Let's refer instead to a hypothetical case where it has been.

[dysfunctional press]

1. who is the 'gay defendant' in the linked story?

:shrug:

[LoZoccolo]

3. The poll does not refer directly to the story, sorry.

My OP was confusing and I corrected it.

[Two Americas]

15. LOL

Of course it doesn't refer directly to the story. That wouldn't work. Better to be clever and deceptive.

[MattBaggins]

22. Your title is still loaded and misleading.

[bluedawg12]

64. Reply moved to the bottom of thread by author.

Sorry, I meant to post this at the bottom. Moving.

[NeedleCast]

2. I'd have to say No

but that doesn't mean a straight man can't be sexually harassed by a gay man.

[Jackpine Radical]

4. Depends on the circumstances.

A first problem would be establishing the homophobia. A second issue would be the nature of the alleged harrassment.

[Deja Q]

34. Agreed. Both points.

Even then, a person is entitled to believe x, y, or z. Common decency and other archaic rules in place, there are venues for fondling people. Gay, straight, bi, toaster fetish, or anything else, people need a little common sense when it comes to others... and if an attempt is made and the other person refuses, to continue is just dumb.

Again, orientation is not a qualifier. Most people don't like being felt up without their permission...

[Vanje]

36. What if no one was felt-up?

Because its pretty hard to touch someone when their riding in a fire engine with windows closed.

[Deep13]

5. Just so I understand...

You are asking if a gay employer can be excused for sexually harassing an employee if it turns out that employee is afraid of gay people.

No, we do not punish people for feelings. If the phobia was known to the employer, it would be an aggravating factor.

(I have no idea what the facts of the real case are.)

[LoZoccolo]

10. When you say aggravating factor...

...do you mean that if the employer used the homophobia as a weapon against the employee, knowing it bothered him, then the employer would get more punished? Or if the employer was upset about the employee's homophobia and decided to retaliate by sexually harassing him, he would get more punished? Or less? I'm not really versed in legal matters, so I don't understand some of the terminology or the dynamics.

[Deep13]

11. I mean the employer exploited a known phobia...

...in increase the employee's anxiety. A fear of gay people is irrational, but so is my fear of bugs. If the boss tried to make me anxious by putting big, tropical bugs in my office knowing I was afraid of them, it would be an aggravating factor in his guilt.

[dysfunctional press]

6. it would depend greatly on the facts of the case.

that's why we have courts- not too many things are cut-and-dried yes-or-no situations.

[BR_Parkway]

7. I don't see a str8 guy not wanting to be sexually harassed as homophobia

Everyone, no matter orientation, is entitled to be free of unwanted sexual harassment in their work. And the jury ruled rightly in this matter, IMHO.

[Occam Bandage]

8. I cannot imagine a situation in which it would be.

[petronius]

9. A homophobic person can be sexually harrassed by a gay person

However, the sexual harrassment must be genuine - i.e. behavior that would be perceived as harrassment by a reasonable person (not just the response of a plaintiff who views the mre existence of gay people as sexual harrassment).

In your hypothetical, the mental state, beliefs, or (to some extent) actions of the plaintiff have no bearing on whether sexual harrassment occurred.

[bluedawg12]

21. "the sexual harrassment must be genuine . " Yup.

If it's bogus, one might speculate why someone would file a suit with little or no merit?

$$$$$$$$$$$

One might even speculate, on other motives for filing a claim without much merit, or not all, like pre-planned law suits by rw acitvists and homophobic plainitff's.

[petronius]

27. Right - I'd say the claim must be examined on its own merits, regardless

of the plaintiff's mental state or moral deficiencies. I would not agree with the plaintiff's known homophobia being used as a reason for holding the claim to a higher standard of proof or subjecting it to enhanced scrutiny (that whole 'blaming the victim' thing). However, if the claim is found to be meritless, then the motivations for fileing it should be questioned - and malicious, money-grubbing, or frivolous suits are worthy of punishment.

[bluedawg12]

35. The defense centered on the lack of credibility of the witnesses

and their inconsistent version of events, as well as, prejury on the stand which did not help their credibility, either.

As far as, were they sexually harrassed, the first jury did not think so, they were deadlocked.

The second jury was not unanimous in it's verdict on severe and pervasive harassment:

..........

"Jurors were asked to answer nine questions and nine panel members had to agree on each one for the city to be held liable. They voted 12-0 only on the first and last questions.

The first question asked: “Were the plaintiffs subjected to unwanted harassing conduct because of their gender?” The last question asked: “What are the plaintiffs' damages?”

The question with the slimmest support was the second one, which was the question the jury in the first trial deadlocked on. It asked: “Was the harassment of the plaintiffs severe or pervasive?”

For that question, the jury voted 9-3 for each firefighter. The dissenters, all male, were the same each time. All three declined to comment."

http://www3.signonsandiego.com/stories/2009/feb/18/1n18parade235421-jury-awards-34300-firefighters-ov/?zIndex=54586
..........

[petronius]

40. My comments so far were aimed only at the general case (the OPs hypothetical)

I've casually read the thread and some of the articles on the SD case, and while the compensation could be justified it seems like there are a lot of things we (at least I) don't know. It's not clear to me the extent of the previous complaints about this event by other firefighters, and most importantly I can't tell if the harrassment they complained about was at the parade or committed later in the firehouse (it seems the FD would be very happy to let us think it was the parade-goers who behaved inappropriately).


In a very broad sense, and using myself as a reasonable person, I find it very hard to believe that severe or stressful harrassment could occur when the victim is wearing ear protection in a high-riding multi-ton vehicle with the windows up... :shrug:

[bluedawg12]

42. That's why they call reasonable people, "reasonable." Well said.

:thumbsup:

[Two Americas]

12. so dishonest and inflammatory

Why, oh I wonder why, would this bizarre question be posted as a poll at this time? Is it just a coincidence that in threads about a story in the news this very idea was used as an excuse for gay bashing? That people were continually trying to maliciously and falsely characterize those objecting to the bigotry as claiming that because the alleged victims in the story were homophobic, that therefore the alleged perpetrators were off the hook?

Here is my question...just an innocent question, because you know... I am just a curious person, and would really be interested in people's responses. I don't mean any malice by this at all.

Is calling oneself a Democrat a legitimate defense against the charge that one is promoting hatred and bigotry, as well as every other right wing and reactionary idea imaginable?

I am just kind of wondering. Nothing to do with anything that is happening here or anything like that.

Note: This post does not assume that bigotry on the part of the person calling themself a Democrat has been established. Let's refer instead to a hypothetical case where it has been.

[QC]

13. That would make an excellent poll! n/t

[bluedawg12]

16. This a poll based on a deleted thread, which seemingly implies

that a recent verdict against the city of San Diego was under criticism exclusively for the argument, that the plaintiff's were homophobic.

The real questions about that verdict were far more complex and had to do with the circumstances of the actual harrassment claim, the inconsistent testimony and perjury of some of the facts on the stand.

[noamnety]

20. Amen.

Orientation isn't the issue. Unwelcome/uncomfortable sexually loaded situations as a job requirement is the issue. And it doesn't matter WHY it's unwelcome - that's not what's on trial. The fact that it is unwelcome and they couldn't opt out is all that's required for it to be harassment.

I would file a harassment complaint against my boss, for instance, if I had to go to a strip club as a job requirement regardless of the gender of the strippers.

[Two Americas]

24. a parade?

How is a parade an unwelcome/uncomfortable sexually loaded situation?

[noamnety]

25. It's not a product of the media/format.

It's a product of the content.

If a person is put in a situation - whether it's a bar, a parade, an autobody shop with posters on the wall, wherever, as a job requirement, there is a level of nudity and/or harassment that they are not comfortable with, and they aren't allowed to opt out, that's harassment.

[Two Americas]

26. so...

By that logic, if a fire fighter was sent to a fire at an autobody shop with posters on the wall, that is harassment?

Who is guilty of the harassment? The city? The autobody shop owner?


...

[noamnety]

29. If a firefighter was sent somplace

to put out fires, I'd consider that a critical function of their job to be on that site, so no, they can't opt out of that, any more than they can opt out of rendering first aid on account of having to remove a woman's shirt to apply defibrillator paddles.

(The same posters hung in the firestation ... now you have a potential problem.)

Kinda like how a doctor might have to do a gyno exam on a woman - a primary function of their job. But if the same doctor was required to go to a peep show to watch women strip ... not so much the critical mission of their job, and that would be harassment (if they didn't want to go), even though what they would actually be seeing wouldn't be substantially different.

I'm a little shocked people are having a hard time grasping the concept of harassment.

Me having to share a shower with other women in the army - not harassment. Me having to go with the guys on annual training to watch wet teeshirt contests - harassment.

Please, tell me you get that distinction.

[Two Americas]

31. I get the distinction

I am questioning it's application here.

You are taking the factor of power imbalance out of the picture, and making it be all about being "offended." Sexual harassment is not about being offended, nor is it about sex. It is about power.

The people in the crowd in the parade had no power over the fire fighters. There is no history of parade goers mobbing fire trucks and assaulting fire fighters.

If no one were harmed by sexism, then we would merely be talking about nice manners. The reason why we are concerned about sexism, and racism, and homophobia, is because it is part of a pattern that leads to human beings being damaged and killed - in the real world. Racist slurs and sexual harassment and homophobic remarks invoke the history of abuse, for the purpose of intimidating and controlling people, and encourage more abuse.

There is no such history of fire fighters being harmed or murdered by "the gays" or people attending a parade. No threat, no history of threats by gays in fire fighters, no danger, no harm - no harassment.

The problem with posters in the auto shop is not merely that they are in bad taste, but rather that they are part of a pattern of women being reduced to less than human status and "put in their place," which results in real damages to real human beings.

[noamnety]

33. Your definition of harassment is too narrow.

Having a history of oppression is one factor in determining harassment, as is power. But they do not both have to be present to create a hostile environment of harassment.

That's why women can be nailed for harassing male coworkers - even though historically we don't have a big issue with women oppressing men. And it's why the people doing the harassing can be supervisors - but they don't have to be in a position of power over the victim. And the victim doesn't have to be in fear of being "mobbed or assaulted" or any other imminent danger for harassment to have occurred.

THIS is the standard: "Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitutes sexual harassment when submission to or rejection of this conduct explicitly or implicitly affects an individual's employment, unreasonably interferes with an individual's work performance or creates an intimidating, hostile or offensive work environment."

I didn't make it "all about being offended." Creating an offensive work environment is included in the legal definition of sexual harassment. You, on the other hand, are trying to make it "all about power" while ignoring anything else in the definition that you find inconvenient, or not in support of a specific agenda.

(That's not to say I disagree with your agenda, I understand and appreciate the sentiments behind your post and likely would sign up to that agenda - but that agenda is separate from the definition of sexual harassment, although it has some obvious intersections.)

[Two Americas]

38. right

"Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitutes sexual harassment when submission to or rejection of this conduct explicitly or implicitly affects an individual's employment, unreasonably interferes with an individual's work performance or creates an intimidating, hostile or offensive work environment."

That in no way applies in the case of the fire fighters.

How might it? Give me an example, any hypothetical example as to how these fire fighters might have been harassed, based on their statements and claims, and given that definition.

I am not trying to limit the definition of the behavior that could be considered harassment. I am trying to limit it to behavior, to actual harassment, and not let it stray into the realm of a person merely feeling personally offended, or claiming to feel that way, by some actions of others.

What if a fire fighter feels that being asked to go into a Black neighborhood is "creating an intimidating, hostile or offensive work environment" for them? Is that sufficient then to say that they have been harassed?

Do we really imagine that there would even be such a concept as "sexual harassment," or that we would be discussing it, were it not for the history of oppression and abuse of women?

[noamnety]

43. apples and oranges

You are trying to equate being sent into a neighborhood as a legitimate and critical job function (where the environment/climate is secondary to their mission as first responders), to being forced to participate in a gay pride parade as the mission itself which I presume was not part of their job description.

[Two Americas]

48. that is a separate issue

Whether or not fire fighters should be required to attend parades is a separate issue. That is not what they complained about. They complained about this particular parade.

This issue is yet another distraction people have jumped on - "why are fire fighters required to participate in parades?" Who knows, who cares? That was not what the suit was about.

[noamnety]

50. I get that that's a separate issue. Yes.

We have three scenarios.

1) Should city employees be required to take part in parades? I think we all agree that's not relevant to this harassment complaint.

2) Should fire chiefs send firefighters into potentially offensive (to them) work environments for the purpose of rendering first aid, when their job is to render aid? Yes, of course, and I don't believe anyone here would argue otherwise, nor would the firefighters. If hooters is on fire, go put the fire out and rescue the patrons. Again, not relevant to this harassment complaint.

3) And then we have what actually happened, which had nothing to do with firefighting. Apples, oranges, like I said.

[Two Americas]

51. cleverly done

Your first point says that the type of assignment doesn't matter - it is not relevant to the complaint.

Your third point says that the type of assignment matters so much that we cannot even compare the two - apples and oranges.

Your middle point transitions us deftly between the two contradictory statements.

[noamnety]

52. Not at all.

The circumstances surrounding why a person is in that environment matter, absolutely. Is it a function of the job requirements? Exposure to nude women because you are a gynecologist - not harassment. Exposure to nude women because your boss made you go to a peep show - now you have grounds for a complaint.

Whether or not gynecologists have to go out for dinner - in a nonharassing/nonhostile environment is not relevant, just as a rhetorical debate about tax dollars being used to fund firefighters to be in parades is not relevant - UNTIL they are put into a hostile/harassing/offensive work environment as a result of that decision, as these guys apparently were.

I don't know, it seems like you are more interested in trying to score points here, as one of my friends would say, than coming to an honest understanding of what sexual harassment entails in a work environment.

I'm disheartened (as I often am on DU nowadays) to see people not grasp the basics of sexual harassment on the job.

I think the original poll is dishonest and inflammatory. I thought from your first post here that we were in agreement, generally on DU I think we tend to agree on things. Apparently I completely misread your intent in this thread, and I am quite confused if you believe people should be forced into an uncomfortable environment at their employer's whim despite voicing objections to it and despite it not being a critical job function.

I would not be okay with my boss requiring me to be at a parade like mardi gras, where women are flashing their breasts ... or requiring me to go to some sexist vegas showgirl act. It's fine that other people go, but I wouldn't want to, and I'd find it offensive. In my job description, it's not a requirement and shouldn't be one. If the boss made me attend a function like that, he'd have to deal with the fallout from it.

[Two Americas]

53. understood

Yes, the environment can matter. But in this case we are comparing attending a parade to fighting a fire - two activities that are a routine part of the job. I can't see how the parade is the equivalent of a peep show. See what I mean? If one type of parade is an appropriate assignment, what makes another type not? What makes this parade "sexual?" It seems to me that your assumption has homophobia built into it.

A better analogy would be to compare a doctor attending a straight person to a doctor attending a gay person. If one parade is OK, why not another parade? If all parades are bad, that is one thing. And parades are different then fighting fires. But none of that is at issue here. The fire fighters are saying that this parade is a problem.

I am not trying to avoid understanding sexual harassment, I am saying that I do not believe that there was any sexual harassment here.

I am not saying that I "believe people should be forced into an uncomfortable environment at their employer's whim." But again, what if a fire fighter is "uncomfortable" making a call in a Black neighborhood? Are you saying that the employer - on a "whim" - should not require - "force" - the fire fighter to go "into an uncomfortable environment?"

If you are a cop in New Orleans, you may very well be "forced" into "uncomfortable environments" and see naked people or have people make rude remarks to you or even assault you. So what? As an undercover cop you may well be required to go into seedy joints. But how are you then necessarily a victim of sexual harassment?

[noamnety]

55. I think for me to continue here

you have to stop equating going into a part of town you don't like - as a critical part of your job to save lives and protect the public - to being sent to a ceremonial function and being sexually harassed. That strikes me as being as dishonest as the original poll.

Likewise, equating the climate at a gay pride or mardi gras parade to the climate at a memorial day parade as if you can't imagine what the difference is strikes me as willfully dishonest.

[Two Americas]

56. ok

So a Pride parade is in and of itself an environment - like a strip club - that is offensive, and requiring people to work at one could be sexual harassment. Requiring employees to attend a Pride parade is not the same as requiring them to attend a Memorial day parade, regardless of what incidents may happen at either of the parades. If the employees feel uncomfortable, and think that this discomfort is sexual, that is sufficient grounds for a sexual harassment case against their employer.

Am I following you?

[Toasterlad]

47. You Are My Hero.

I can't remember ever disagreeing with anything you've ever posted. And I admire how you always take the high road. I wish I could be that classy. But then I'd have to give up my beloved snark.:(

[bluedawg12]

41. noamnety - A couple of questions.

You seem pretty knowledgeable about the issue of harassment.

I just wonder about this case:

1.) Can harassment occur without a personal exchange?

I mean, assuming that some comments are made, how can sexual favors from some voice in a crowd be construed as: requests for sexual favors?


2.)Physical conduct of a sexual nature constitutes sexual harassment.

The parade was on a public street. Does that imply that everyone, even, by standers were subject to: conduct of a sexual nature? How can that exist and the City allow it? That seems a contradiction, a public parade, probably with a permit to parade, a prior history of what to anticipate, be allowed year after year, IF, it is truly of conduct of a sexual nature?

3.)Implicitly affects an individual's employment. This seems like a real stretch, a "but for..." argument, like, "but for the fact that I would lose my job, I was forced to drive in a parade and in that parade some comments were made by strangers, as I drove, in a truck, with windows up and head phones on, maybe dircted at me, maybe not."

I think the problem that people have when they disagree with this case and the verdict of the second trial, is what 2A's has said before, yeah, the plaintiff's may have been angry at being forced to attend--and said so in advance- yeah, they may have been offended due to their homophobia, or religion, or whatever reason they chose to cite, but that under the circumstances as described, it seems that other than being subjected to view a culture different than theirs and perhaps hearing random, impersonal call outs, perhaps not even to them specifically and personally, they were working in daylight, at a public gathering and they were not the only four firemen there, they were he only four to sue, however, it seems more as if they were offended than that they were personally sexually harassed. 3 out of the 4 males in the jury agreed.

Well, it's not over, it's going on to an appeal.

[noamnety]

45. let's see

1.) Can harassment occur without a personal exchange?

Yes. A hostile work environment does not require that comments were personally directed at a specific individual.

2.)Physical conduct of a sexual nature constitutes sexual harassment.

You need some qualifiers on that statement - as written, it's not correct.

3.)Implicitly affects an individual's employment. This seems like a real stretch, a "but for..." argument, like, "but for the fact that I would lose my job, I was forced to drive in a parade and in that parade some comments were made by strangers, as I drove, in a truck, with windows up and head phones on, maybe dircted at me, maybe not."

If it was a job requirement - and not a critical function of the job, the employer is at fault.

it seems that other than being subjected to view a culture different than theirs and perhaps hearing random, impersonal call outs, perhaps not even to them specifically and personally, they were working in daylight, at a public gathering and they were not the only four firemen there, they were he only four to sue, however, it seems more as if they were offended than that they were personally sexually harassed. 3 out of the 4 males in the jury agreed.

Things that are not relevant to a sexual harassment case: daylight, public gathering, other coworkers were not offended.

Things you are dismissing that ARE relevant to a sexual harassment case: They were offended by their work environment.

[bluedawg12]

46. Interesting about being offended.

I guess, that makes it subjective, in that regard.

The other variables, like speech or behavior, would seem objective.

Interesting stuff in general, that's why I asked. Thanks for the info.

Now I'm wondering, why the first jury was ended up as a hung jury and the second did not? That's rehtorical. LOL.

[bluedawg12]

63. The is the case:

This is how I understand it after talking to noamnety


1.) Having a history of oppression is one factor in determining harassment, as is power. But they do not both have to be present to create a hostile environment of harassment.


2.) That's why women can be nailed for harassing male coworkers - even though historically we don't have a big issue with women oppressing men.

3.) And it's why the people doing the harassing can be supervisors - but they don't have to be in a position of power over the victim.

4.) And the victim doesn't have to be in fear of being "mobbed or assaulted" or any other imminent danger for harassment to have occurred.

The she gives us the legal definition:

THIS is the standard:

I. Unwelcome sexual advances
II. requests for sexual favors,
III.and other verbal or
IV.physical conduct of a sexual nature
V.constitutes sexual harassment when submission to or
VI. rejection of this conduct explicitly or
VII. Implicitly affects an individual's employment,
VIII.unreasonably interferes with an individual's work performance or

IX.creates an intimidating,
X. hostile or
XI.offensive work environment.
.............

So, the first issue of males being the dominant majority does not pertain. Males can legally be seen as being harassed. That would also mean, males can be harassed by males or females. That covers 1 and 2.

In this instance 3 does not apply. It might apply to an intern being sexually harassed in a law firm, for example, by a senior partner who is not a direct preceptor, for example.

Number 4 does apply. There is no prerequisite for physical violence, or direct assault, as that would be too high a threshold in society. Keep in mind the victims are usually female, and the standard shouldn’t be: well she wasn’t fondled or raped. Verbal assault seems to be the threshold.

Here is what I understood about the plaintiff’s complaint.

They claimed they were exposed to I through IV.

I. Unwelcome sexual advances -verbal comments.
II. requests for sexual favors - verbal comments.
III.and other verbal or - verbal comments.
IV.physical conduct of a sexual nature - verbal comments and sexual displays.


If I through IV are met, then, that constitutues sexual harassment V.
V.constitutes sexual harassment when submission to or
VI. rejection of this conduct explicitly or
VII. Implicitly affects an individual's employment,

Because they objected participating in the parade, yet, they were forced, allegedly, into going and there would have been consequences, explicitly stated or implied, if they refused, that’s VI through VII.

Then, if either the action or incident causes something to happen at work. Well, VIII does not apply. They did claim that by being present in a setting that exposed them to sexual language and unwelcome sexual advances and requests for sexual favors, they were, on pain of negatively affecting their employment, they were subjected to a intimidating, hostile or offensive work environment, that’s IX,X and XI.

VIII.unreasonably interferes with an individual's work performance or
IX.creates an intimidating,
X. hostile or
XI. offensive work environment

if you recall in her answer to me, she noted that I omitted “offensive” which I did, as it seemed arbitrary to me, she explained that offensive is a legal element of harassment.

For example, a bawdy joke is told at work, everyone laughs, but one of the employees is offended and says, “I have had enough of these sexual jokes, they are offensive to me.” That’s grounds for a harassment suit, even if ten other coworkers thought it was funny.

She also made one other predicate in reply to your question, about the hypothetical: what about racists refusing to go put out a fire in an AA neighborhood, “because they disagree with that life style.”

Her answer was that:

a.) The plaintiff’s cannot refuse to perform their “critical work” duties, as for example the fear that they would not put out fires in gay neighborhoods, also mentioned, somewhere. However, going to a parade I not a “critical job” duty of fire fighters. Yes, public relations work might be a part of an FF’s job, but not a critical occupational description.

So, if the firefighters case met the criteria above, then, they had merit to their case.

As I recall from an article, the jury was instructed to answer 9 questions, in order to find for the plaintiff and it sounds like the above criteria might have been the basis for those 9 standards that had to be met.

[bluedawg12]

30. There was an extensive thread a few days ago and "content" was the issue

as I recall.

Again, I don't have the links, but as I recall from news stories about the trial, the objection by the defense was that the plaintiff's did not have a consistent story about the "content" of what they claimed was harassment.

As I also recall, as the thread was long and there were many side discussions, that the issue of their homophobia and the issue of the rightwing advocacy group who represented the plaintiff's was not a main point in either the replies here on DU, nor the defense attorney's argument.

The issue was, were they harassed sexually and if so how?

As I recall, the four plaintiff’s were riding in a fire truck, they claimed that they didn’t like the sights and sounds of the parade, they rolled up their window and put on head phones and looked straight a head.

I have never read the actual trial testimony, but, I bet it would be interesting to see how the four versions were the same or not.

I understand that part of the complaint had to do with being subjected to protesters from anti-gay groups as well, that seems more like a hostile work environment, rather than sexual harassment.

As I understand it, the disagreement here by those of us who did not think the case had merit, was based on the fact that it was a parade, and while there may have been some half naked men, or women, as there is at the beach in San Diego, and while I am not sure what is meant by “simulated sex,” in the claim, as some forms of dancing also appears to me as simulated sex, and again, without the details many found it incredible, that four trained fighters were emotionally more damaged by driving a parade route in broad daylight, then, say at the sight of charred bodies.

With respect to the emotional damage claim, I note that only $100 for medical counseling bills was paid in the verdict and only for one of the plaintiff’s.

Also, many raised the point, that if this were sexual harassment, then, why isn’t it sexual harassment for police and other city personnel to be on duty say, during Mardi Gras? Or, spring break at Daytona?

There were many questions about this case, a pretty good discussion and after about three hours someone came at the tail end, around midnight, asked a question of the “GLBT activists here” namely, “can’t homophobes be victims of sexual harassment?” That got deleted and now it’s this poll.


It seems to me there is fodder for a good discussion with this story, because the fact remains that the first trial failed, there was a second trial, the jury awarded each plaintiff $5,000, one got $14,200 for changing fire stations and one got $100 for counseling bill payment and there may be another trial, as the City plans to appeal.

I agree, it should be voluntary. It had been voluntary in the past and this time due to a family illness a volunteer had to withdraw, as I recall. The policy is now reverted back to voluntary attendance.

Finally, my question, why the heck are we playing city workers to march in any parades, with our tax dollars, especially in California, which is $43 billion in debt?

Maybe that should change as well? No more FD and PD marching in any parades on City time, only if they volunteer to do so and without tax payers subsidy?

[noamnety]

32. Being on duty at a parade isn't quite the same as being in it.

I strongly suspect if there'd been a fire or other medical emergency and the firefighters had been called as responders, there'd have been no allegations of harassment.

Like you, I question the extent to which they were emotionally damaged - but I don't believe that's the standard for determining whether or not harassment occurred in the first place. Tough women who aren't emotionally damaged by ongoing harassment on the job still have a right to hold their employer responsible for creating a hostile environment.

Similarly, comparisons to how much they were damaged in comparison to other traumatizing events that happen on the job are inappropriate when determining whether harassment occurred. A woman in the army has every right to hold harassers accountable for their actions - and to seek counseling - even if they also have extreme PTSD from being in combat and have been through worse.

I agree with you that cities have better ways to spend their dollars than requiring first responders to be marching in parades while on the clock. If they had surplus money in their budget, they could pay the volunteers ... but I'd be willing to guess none are going to claim they have extra money to burn.

[bluedawg12]

37. The defense was not homophobia, the defense was lack of plaintiff credibility.

There is enough question about what happened at the parade and did it constitute sexual harassment on the job that the first trial ended in a hung jury, the second jury found in favor of the plaintiff's but reduced the award from the damages requested, $500,000 to $1 million per plaintiff, to $5,000 per plaintiff and other amounts totaling to a total of $34,300 for all four and City Attorney's plan to appeal.

Now, if there is a credible case, then the motivation of the plaintiff has nothing to do with the legal matter and verdict. That is quite separate from forum discussion now underway for two days, where all of this has been discussed and I don't see anyone saying that: well, if there was harassment at the Pride parade, then, if the plaintiff's are homophobes they deserve nothing. I have seen motivations discussed, as I have seen many,many opinions discussed as the tally of replies is at: 273 replies.

[rug]

14. Yes, under the eggshell rule.

http://en.wikipedia.org/wiki/Eggshell_skull

[bluedawg12]

17. Doesn't apply, unless you claim that pre-existing homophobia

was made worse.

The thin eggshell rule applies when a pre-existing condition is made worse, even inadvertently, by some act.

The plaintiff's were not suing on the basis that their pre-existing homophobia being made worse, although, that is possibly true as they did seem homophobic.

[IGotAName]

59. Correct. I can see the "eggshell" rule coming into a person's

mind on this, but the concept doesn't fit.


The point is that not wanting to be subject to repeated sexual advances from someone is recognized as a right across the board. It's a person's right to be "homophobic," if what you're calling homophobia is not wanting to be sexually harassed by a person of the same sex.

[varkam]

58. Well, sort of.

The Eggshell skull rule refers to actual damages that stem from something like a battery. For instance, say if I shove you lightly and you are injured far beyond what anyone could have foreseen, I would still be liable for the damages.

However, injury in cases like that is pretty clear - which is not as clear here. In cases like these (where there is no actual, physical damage) injury is judged against a reasonable person standard. For instance, you can batter someone if you merely subject them to an "offensive" touching. Say, though, that you hate it when people tap you on the shoulder. If I tap you on the shoulder, you would regard that as a battery but the courts would not because - judged against an objective standard - it is not an offensive touching.

I'm no expert in sexual harassment suits, but I would imagine that it would also be judged against an objective standard and that the homophobia would not enter into it (unless the defendant knew or had reason to know of the plaintiff's homophobia).

[IGotAName]

60. Good point.

I do think the damages issue is a difficult one.

[bluedawg12]

62. Thin egg shell rule: exacerbation or aggravation of a pre-existing condition.

It would apply, if one of the FF's claimed they had anxiety attacks prior, and the incident made it worse.

In which case they might be out of a job due to an admission of prior anxiety, which might be a red flag on a FD physical. That's just speculative silliness, that's not their claim. They claimed somatic symptoms, but from what I read, they were new onset.

[Bluebear]

18. I'm gay and I totally agree.

:silly:

[bluedawg12]

19. Your being "hyper-pc."

:rofl:

[donco6]

23. Homophobia is a moral failing.

How can that be a defense?

[rebecca_herman]

28. Nope, I don't think it is

Anyone can be sexually harassed, regardless of their opinions.

By that logic, if for example a woman is irrationally afraid of men for some reason, then she couldn't possibly be harassed by one, it's just her irrational prejudice against men making her think she was harassed. I think it's bad logic. If the evidence is that sexual harassment clearly took place, then the personal beliefs of the people involved shouldn't matter.

[bluedawg12]

39. Has anyone seen: homophobia used as a legitimate defense against a sexual harrassment suit?

I'm wondering where this question comes from?

[musette_sf]

44. neither is it a legitimate defense against murder:

http://en.wikipedia.org/wiki/Gwen_Araujo

[varkam]

61. It's actually been used as a partial defense..

I believe, in a couple of cases, it has been used as a partial defense to mitigate murder down to manslaughter. IIRC, defendants used a theory of provocation to get down to lesser charges.

[Name removed]

49. Deleted sub-thread

Sub-thread removed by moderator. Click here to review the message board rules.

[bridgit]

54. Is there a free pass for sexual harassment?

[Skittles]

57. absolutely fucking not

nope

[DemocratSinceBirth]

65. What

Folks should harrass or sexually harrass other folks.

What does sexual preference or orientation have to do with it?

[bluedawg12]

66. The gay rights movement does not excuse sexual harassment nor condone it.

As far as I am aware.

It’s odd that this poll should come up. So timely, as there was a case like this in San Diego.

Four fire fighters claimed sexual harassment (SH) on the job.

Briefly:

They were at a Pride parade and felt uncomfortable or harassed and were there on the job, working. Potential SH case.

Their law suit is not that the Parade itself was sexual harassment.

Their law suit alleges that they were subjected to moments of verbal sexual harassment and moments of gestures with sexual content while they were at work and they were mandated to perform work which was not part of their critical duties as firefighters, but, yet, was mandatory and they had registered a prior complaint about not wanting to attend.

The first trial ended in a hung jury and the demand for up to $1 million dollars/plaintiff was rejected.

At the second trial, the plaintiff's counsel convinced a jury that the case rose to the level of meeting the 9 questions about sexual harassment at work.

The jury found in favor the plaintiff's. Yet, the jury denied awarding them any substantial money, which tells us that they did not feel that the claims for emotional suffering caused by the harassment amounted to more than a token $5,000 per plaintiff and the jury rejected the $1 million dollars per plaintiff demand.

Now this question about the hypothetical defense for a SH suit, as the counter claim of homophobia, is a straw man. We are led to believe the poll is not about the SD case and yet, we are not given any examples of where such a defense might have arisen, when, if at all. However, many will read into this poll, as if this were the chief defense in the SD case.

The defense, as far as I know, did not use the homophobia argument in the San Diego case, even though it may have played a factor in why the four FF’s were offended, and why others may not have been. Having now read the standard for a SH suit, that underlying motivation is worth a discussion on a forum in understanding the genesis of the suit, but it has not been proffered as a legal defense, nor was it at trial, from what I have read.

This poll question seems to imply that the hypothetical gays and/or allies might overuse the claim of homophobia and may also be seen to imply that gays and allies are so caught up in being defensive that we cannot see reality when it is presented factually. In short, reframing a three day long discussion with many opinions and a lively discussion into this one straw man question.

Having now read the standard for a SH suit, my answer about the real life SD case, which this poll “coincidentally” evokes:

Given that there may have been some comments or gestures aimed at the plaintiff's, it was after all a festive parade, not a funeral parade, then, I agree, the four phobic FF's should not have been forced to attend over their objections. The second jury verdict means that four City employees and their lawyer convinced a jury that they had heard some comments or perhaps had seen some gestures, which, they found offensive, for which they had the opportunity to shield themselves by rolling up their windows and use head phones and for which the jury thought the damages amounted to less than 1% of what they claimed their personal injury was worth.

Conclusion: Next time, if there is a next time, send volunteers. Which, by the way, is now the City policy. Which, it seems to me, could have been achieved through the FF’s union and not a SH lawsuit. Just speculating.

However, as the SD Pride Parade is a time honored tradition and is known as what it is, and yet, it has a city permit, the parade is legal and a tradition. So, the suit does not prove that the SD parade was in some way a universal problem to all who were present.

The verdict proves nothing about the parade per se as it is confined to the claims of four city workers about their experience.

Moving past the law suit, from a political stand point, it is a vehicle for the rw to smear gays and “gay rights” and to use the fear baiting term "gay agenda" at every opportunity, this case seems to be no exception.

This case, when all is said and done, stinks of a pre-planned, canned law suit.

Also, it reveals the new rw strategy taken right from the pages of the ACLU and SPLC and Morris Dees who has successfully sued rightwing hate groups, right out of existence.

OK the jury verdict is in. That's a fact, and I don't have access to all of the evidence, but, there must be enough doubt, because the City will appeal. What’s the doubt based on? I am speculating, but the plaintiff’s testimony was inconsistent as to what actually happened.

To be clear, this verdict does not legally indict the Pride parade, or gays, gay rights activism or the gay community. I simply means, in the future, don't mandate City workers to attend a Pride parade, but, the plaintiff’s attorney’s did not stop there in interpretting meanings.

As clear thinking progressives we should see this SH case as separate from what the rightwing is trying to make this out to be: “a celebration of lewdness and obscenity in support of the homosexual agenda.” It’s also an vicious attack on gays, gay culture and a sly attack on the female, openly lesbian fire chief.
........
http://www.thomasmore.org...etail&sbtblct_uid1=12

Continued Thompson, "The constitutional right to free speech also protects the right not to speak. These men should not have to explain to their families, friends and church congregations that their presence at a celebration of lewdness and obscenity in support of the homosexual agenda was because they were forced there by way of a direct order.

<snip>

Fire Chief, Tracy Jarman, an open lesbian, stated, “This is a fun event and all employees are encouraged to participate.” When Jarman was appointed Fire Chief she stated that her homosexuality has never been an issue at the department and she has never seen any gay-related trouble. Rooney commented, “Obviously the environment at the department has changed for the worse since Jarman has been appointed Fire Chief. ‘Participation’ should be a voluntary act—these four firefighters had no choice in the matter and that is wrong no matter what one’s sexual orientation.”

Thompson commented, “This is another example of how radical homosexual activists in positions of authority force their agenda on unwilling citizens. Although the local media avoided mentioning the debauchery and the obscenity that pervaded the parade, the general public should know what went on and how these firefighters were forced to participate against their will.”

<snip>
........


So, it seems that, the political motivations behind the suit are clear. They are part of a rightwing initiative to paint gays as having some nefarious radical homosexual agenda. This is what many sensed and why they thought the case had the stench of underlying bigotry that far exceeded a SH suit and is why the debate has gone on for days.

I don't quite understand this coy poll, which:

LoZoccolo (1000+ posts) Thu Feb-19-09 04:25 PM
Response to Reply #1
3. The poll does not refer directly to the story, sorry.

.........

Then, what a coincidence!

I also don't understand how this poll is helpful from a progressive political point of view, as it pretty much echos the rightwing’s meme: "gays want to promote their radical agenda and force their agenda on unwilling citizens," here we prove it by asking a coy question in a poll, as if there was any serious debate about excusing SH on the basis of, or solely on the basis of: but they were homophobes.

There were many comments and many opinions on our DU discussion about this SH case, not everyone is an attorney or steeped in SH law, this poll question is cherry picking at best and putting a negative spin on a heated debate at worst.

Here's the link to the actual DU debate on the SD story.

http://www.democraticunderground.com/discuss/duboard.ph...