The Reasonable Man and racial harassment
I was bothered by this quote in a LA Times story:
"Could not have reasonably believed." Now, what the argument should have said was, "We think it's unreasonable if he did believe," because it sounds less insulting that way. They mean that no matter what his actual belief (threatened or not, offended or not, whatever) it wasn't the sort of situation where a reasonable person (hypothetical) in his shoes would have believed X, where X is the necessary condition for the lawsuit.
In other words, Jordan allegedly heard a white co-worker say, in front of him, that people who look like Jordan, but are not Jordan, should be imprisoned and caged, not like animals, but along with animals in order that they would be sexually brutalized by them. But it would have been unreasonable if he had taken it personally.
Now, that kind of clever lawyering makes me want to have an impolite response. Something like, "People who look like those lawyers, but are not actually those lawyers, and are guilty of offending my sensibilities, ought to be imprisoned in a jail along with murderers and sex offenders who would treat them roughly."
I know they're just making a legal argument. But I'm offended by the law of the case. Here's hoping the Supreme Court takes it... and decides not to side with the panel or en banc majority.
Lawyers for IBM told the court that the case "presents no important questions of federal law" and should be rejected. (Justices Weigh Limits on Racial Slurs in the Workplace, David Savage, 14 April 2007.)
"Jordan could not have reasonably believed that the isolated co-worker's statement, not directed to [him], and not related to the workplace, created an unlawful hostile work environment," they wrote.
"Could not have reasonably believed." Now, what the argument should have said was, "We think it's unreasonable if he did believe," because it sounds less insulting that way. They mean that no matter what his actual belief (threatened or not, offended or not, whatever) it wasn't the sort of situation where a reasonable person (hypothetical) in his shoes would have believed X, where X is the necessary condition for the lawsuit.
In other words, Jordan allegedly heard a white co-worker say, in front of him, that people who look like Jordan, but are not Jordan, should be imprisoned and caged, not like animals, but along with animals in order that they would be sexually brutalized by them. But it would have been unreasonable if he had taken it personally.
Now, that kind of clever lawyering makes me want to have an impolite response. Something like, "People who look like those lawyers, but are not actually those lawyers, and are guilty of offending my sensibilities, ought to be imprisoned in a jail along with murderers and sex offenders who would treat them roughly."
I know they're just making a legal argument. But I'm offended by the law of the case. Here's hoping the Supreme Court takes it... and decides not to side with the panel or en banc majority.