Sexual Harassment Prevention Training AAR: Day Three

Today was the last day — for now — of training the employees of a small local city on avoiding and responding to sexual harassment. Previous editions here and here and here.

This morning was a roomful of male cops. My female associate was not able to join, so it was an all-male room. Hilarity did not ensue.

Some overall observations, with less of a comedic spin this time:

1. A roomful of cops acted completely differently in listening to this stuff when no woman was in the room. They laughed more at some of the examples. I found myself dropping more four-letter words and relating some of the examples of prohibited conduct more vividly. I think that qualifies as irony.

2. The biggest challenge throughout is to counteract propaganda suggesting that sexual harassment laws are liberal bullshit and that anyone can be sued for any tiny inoffensive thing. While it's superficially true that anyone can get sued for anything, that is not exclusively true for sexual harassment — you can get sued for any frivolous thing in any field of law, as we document on this blog. But it's actually not easy at all to demonstrate that conduct is sufficiently severe, or sufficiently pervasive, to succeed in a claim of sexual harassment. It's important to emphasize this because otherwise many people will take the attitude "what's the point in trying to conform my conduct to the law if any stupid little thing can break the law?" So, ironically, I wound up placing as much emphasis on what is not sexual harassment as I placed on what is.

3. Even the people who appeared the most resistant to the whole thing — who sat there with hard-eyed stares and crossed arms the whole time — looked genuinely shocked and appalled when I related some of outrageous conduct that has led to sexual harassment cases.

4. Conduct is only illegal sexual harassment (as opposed to a violation of an employer's policy) when it is unwelcome to the victim. People getting training respond much better when, rather than telling them to assume everything potentially harassing is always unwelcome, you (1) point out that they sometimes make mistakes about whether something is welcome or not, and (2) tell them that, if they want to engage in risky conduct (dirty jokes, for example), they better be damn well sure it is welcome to everyone in earshot, and and accept the risk that if it is not they will be nailed. In other words, they respond better if you respect their autonomy and responsibility to the extent possible.

5. Judging by the laughter today when I explained stuff they shouldn't do at work, the cops have been spending pretty much all day Monday describing who they nailed over the weekend.

Last 5 posts by Ken White


  1. says

    You, personally, what you say, and what you do are highly offensive.

    I strongly urge the police to stop you for going 1 mph over the speed limit. As the lawyer sues people for telling a bad joke, so should zero slack be given you. If you protest, I urge the police to Taser you and beat you with a baton.

    If anyone is sued for sexual harassment, they should resist to the death. They should seek the legal destruction not just of the vile, biased, lying, plaintiff, but of the horrible person that is the plaintiff lawyer. No rest until they are financially, legally, professionally destroyed, and preferably commit suicide. As these lawyers are the mortal enemy of all productive entities, the give no quarter, and should get none.

  2. says

    Supremacy Claus, there's no shame in taking psychotropic meds. I take them. But dude, remember you've got to keep taking them.

    It's hilarious that you think I'm a terrible person for training people in sexual harassment prevention. Either you had a reading comprehension FAIL, or you're assuming that I must sue people for sexual harassment too. It so happens I haven't — not out of deliberate avoidance, the opportunity just hasn't arisen. I've defended some. Someone with even a smidge of legal literacy — or an ounce of common sense — would probably know that sexual harassment plaintiff's lawyers generally aren't hired to give sexual harassment training seminars. But that level of abstract thinking is a bit beyond you, isn't it?

    I'd be interested in which of the cases that I talked to the cops about today would enrage you further. The cops thought they were all outrageous. Not outrageous that people got sued, you understand. Outrageous that people acted that way. How about the case where the company president told the employee to fuck him or she was fired? She won her case. Is that outrageous? Are you into the strongarm, "Supremacy"? Need a little physical or economic force to get it up? How about the one where the cops wouldn't respond to backup calls from one of their fellow officers, because she was a woman? That cool with you, Claus? Best way to weed those bitches out of the workplace?

    And hey, Supremacy, you're a big tough guy telling all the peeps they should Go Perv Galt, legally speaking. Does that apply to training, too? Should employers refuse to follow California state law requiring them to conduct sexual harassment training? You could totally start, like, a march on Sacramento. "Nobody's gonna tell us not to grab our secretary's tits! Nobody's gonna tell us we can't call a cunt a cunt whenever we want! We're proud of what we are!"

    But don't worry, sweetie. There's plenty of folks who think just like you. You can find them.

  3. Patrick says

    I'm beginning to regret all the trackbacks we've sent to Debbie Schlussel and her readers.

  4. says

    Ken: You are a vile rent seeking lawyer intimidating decent people. The entire field of sexual harassment is a false pretext to make lawyers money. The plaintiff gets ruined, and has to pay income tax on the total settlement or verdict, leaving them destitute. The lawyer should be sued for legal malpractice for failure to warn the plaintiff of that outcome.

    You are a predator. You seek the plunder of all productive entities. You do not even sue the offending pig. You sue the innocent employer. Since your phony, false, pretextual line of work arose in the 1980's there has been an explosion of sex and harassment in the work place. Your field is in utter failure except for one thing, rent seeking. You are doing a great job at that.

    Here is something that works, but involves no fee to vile rent seeking lawyers. Someone gets fresh, you smartly slap their insolent face. That works, and costs nothing.

    Every year you breathe, you destroy $millions in economic value. Rent Seeking is a nice term for armed robbery. There is no validity to what you do except at the point of a gun. The hunt is on for the productive male. The latter should turn around, and start to hunt you.

    Defendants in your phony specialty may do total e-discovery, not just on the phony plaintiff, but also on the plaintiff lawyer. Every inappropriate utterance should be reported to the Disciplinary Counsel. Every biased statement should result in a demand for a mistrial and all costs to your personal assets.

    A recording of your training should be obtained in discovery. Every word should be parsed, and a cross claim should be filed against you for every inappropriate remark. You are a guideline maker. Not only should every word be used against you, but every word you failed to say should be used against you. I would like to see you get named in cross claim by the entity that hired you. To deter.

  5. says

    Every year you breathe, you destroy $millions in economic value

    According to my calculations, and assuming an assigned "destruction value" of 10M, Ken destroys .317 cents of value per second in a non-leap year in which he is (1) alive and (2) spends every second on the prime material plane.

    Weaksauce, Ken.

  6. matt says

    i warned you all about letting cultists in !! now look whats happened!!!
    you should have listened to me =p

  7. Linus says

    I know he spelled it with a C, not a K, but it adds to the hilarity if you hear his posts being read in a German accent.

  8. says

    Linus: You upset by something?

    It is the lawyer that runs a tighter ship than the KGB. One could make a joke under KGB surveillance. A joke at work, will get the person fired, and the company sued.

    I enjoy ad hominem attacks, however weak, but they should show some hint of humor.

  9. says

    Ken: Question. The above remarks, at work, what advice to the employer?

    I find them silly, and would not complain. But, I am not a feminist predator.

    Say, I am an angry, extremely sensitive, easily upset, feminist, police officer. People mocked my name, used phony accents to imitate me, suggested I start psychiatric meds, addressed me in the tones of the above comments, all the first day on the job.

    What would be your advice to the employer about these utterances and their utterers? I honestly don't know. I am not asking a rhetorical question.

  10. says

    Ken: Question. The above remarks, at work, what advice to the employer?

    I'd be happy to address that.

    I find them silly, and would not complain. But, I am not a feminist predator.

    In my experience, people who use terms like "feminist predator" in anything other than an ironic manner mean "women who don't act like a porn version of June Cleaver, or women who talk back." In other words, unmanly losers.

    Say, I am an angry, extremely sensitive, easily upset, feminist, police officer. People mocked my name, used phony accents to imitate me, suggested I start psychiatric meds, addressed me in the tones of the above comments, all the first day on the job.

    Well, Supremacy, I would tell you several things.

    1. Determining whether conduct is actionable sexual harassment has both objective and subjective components. Therefore the fact that you — a Limbot caricature made flesh — found the conduct actually objectionable is only one part of the analysis. Another part of the analysis is whether a reasonable woman in your position would find the conduct so severely or pervasively intimidating, hostile, abusive, or offensive that it had the effect of altering the conditions of your work environment.

    2. I'd also point out that it's only actionable sexual harassment if it is based on gender. You'd have to show that male cops were not treated the same way. You'd also have to show that the conduct was not directed at you because of, for instance, your bizarre behavior. You'd also have to show that such behavior was unwelcome to you. So if the circumstances showed, for instance, that you showed up uninvited to the job, launched into semi-coherent and personally insulting tirade against your coworkers that demonstrated both paranoid thinking and a complete inability to grasp what it was they were doing, I'd advise you that you had a very bad claim. Your behavior would almost certainly indicate that (1) engaging in personal abuse was not unwelcome to you, because you initiated it, and (2) it is likely that the personal abuse you experienced was not a result of your gender, but a response to your conduct.

    If, on the other hand, the circumstances showed that you showed up on the job and behaved like a normal human being, and that other police officers singled you, a woman, out for such treatment, you might have a claim. The question would be whether the conduct was sufficiently severe, or sufficiently pervasive, that a reasonable woman in your position would find it sufficiently harassing and offensive to change the terms and conditions of employment. Were you subjected to the things in this thread on your first day alone, I'd probably tell you that it would be a difficult claim on which to prevail, because it would probably not be sufficiently severe to make a claim nor (because it was one day) sufficiently pervasive over extended time. You might not even get past a motion to dismiss. [Edited to clarify this part.]

    Does that answer your question?

    Also, you haven't answered mine. The police officers I trained were outraged by, for instance, the case of the boss who cornered a female employee in his hotel room at a conference and told her she would be fired if she did not submit to sex. Does it outrage you that she can sue for that? Does it outrage you that the law prohibits that? Does it outrage you that people should train employers to make sure their supervisors don't do that?

  11. says

    Tell me if I misunderstand. Unfunny teasing by special ed students on this site reqires discovery and a tribunal. A jury and judge will weigh and balance factors and test them against the feelings of a fictional character. Fictional characters do not exist in nature and violate the Establishment Clause as well procedural due process rights of the civil defendant. You would generated good salaries for three lawyers over a couple of idiotic remarks worth nothing.

  12. matt says

    seriously we need to see if supremacy clause can drink water! (for those that do not get it) the inability to drink water is a clear sign of rabies

  13. says

    "a reasonable woman in your position"

    Can that refer to the thinking of a sensible high school classmate, or to that of a wise, experienced grandmother? The answer is, no. Any reference to a real person would cause a mistrial. The standard must be set by a fictional character. These are supernatural. They have no physical existence. Supernatural legal doctrines, such as fictional characters, are forbidden by the Establishment Clause.

    Why must the standard be set by a fictional character? To be objective, of course.

    The offensive remarks are just stupid stuff. You want to generate a big investigation and a big case. That is called rent seeking.

    As to trolling, the lawyer is the biggest troll of the economy, and soon, of the safety of our nation.

  14. says

    The cornered lady is the police. The idea of the police calling a lawyer as a remedy is a disgrace. She puts on a lead lined glove, punches the boss in the chest. As he is catching his breath on the floor, she asks, "What did you say? I did not catch it, Sir. Say it again. Sir."

    That is mere poor courtship skills in a boss who should know that line has never worked in human history. It is worth exactly nothing, beyond a physical comeuppance for boorishness. This pig would not even be named in the suit by the feminist lawyer. The innocent employer would be named. That tells you, your line of work is about rent seeking, not about deterrence nor even sexual harassment. The latter is the pretextual lawyer gotcha to plunder the productive party.

    You should review with a good lawyer your own potential exposure in a possible cross claim for negligent training if the boss was a former student of the training.

  15. says

    OK, Supremacy Claus. A review of your posts here, at Volokh, and at Overlawyered convinces me that you are either (1) merely a troll or (2) too deranged to talk to. If you are a troll, it remains to be seen if you are sufficiently amusing to keep around. At the moment I am leaning towards no. Time will tell. Consider yourself on probation.

  16. says

    While I appreciate the groupie like research you did, I still would like a reply to the objection to the use of a fictional character, as a violation of the Establishment Clause.

    Also, please explain why the employer gets sued and not the harasser, even a harasser with assets. The public finds that puzzling.

    Lastly, do employers hiring your training have fewer sexual harassment lawsuits after the training than before, or compared to employers not providing your training.

  17. says

    Only mildly amusing, troll. You are one step closer to the banstick.

    The concept of the reasonable person has been applied in American law for about 170 years, and is applied in nearly every area of law. No doubt some pro-se litigant drafting pleadings with his own feces has previously argued that it is an Establishment Clause violation, but no court would take such an argument seriously, because (among other things) it passes every prong of the Lemon Test.

    Second, your premise is faulty. The employee is routinely sued along with the employer. There are a variety of strategic reasons to do so. The harasser has been sued in every sexual harassment suit I have ever defended. Generally plaintiffs only refrain from suing the harasser when there is a specific tactical reason to do so, such as when doing so would destroy diversity jurisdiction. [PREDICTION X.] Of course, to succeed in a suit against the employer, the plaintiff must prove either (1) the harasser was a sufficiently high supervisor to impose liability upon the company, or (2) the company knew or should have known about the harassment and failed to take reasonable steps to address it. One such reasonable step is conducting harassment prevention training.

    To answer your last question, I don't have statistics on whether harassment training reduces suits. However, harassment training directly limits the company's liability for harassment, as explained in my prior paragraph.

  18. Mike says

    Ken: Claus is no troll. Back when I started and managed Appellate Law & Practice, he showed up. I tracked him down to his real ID. I traced the IP based on comments he made as Claus and as he made under his real name. I Googled around to find that the comments posted under his real name in other fora had the same tone and structure.

    I'll see if I can remember his real name. IIRC, he got ruined in a court case. Went pro se. I think he even had an M.D. and was pursing a J.D.

  19. says

    Thanks, Mike.

    Awesome. He thinks that using Latin violates the Establishment Clause too.

    I can't rule out the possibility that he is a persistent troll, though. But now I have considerably more data about him, and can search for more.

  20. Patrick says

    To the extent that a troll is dishonest about his beliefs, SC may not be a troll. But an obtuse pain in the ass is just as bad.

    I'd have pulled the ban-trigger last night, but I know SC from other sites.

  21. says

    Shunning of dissenters is an established cult technique. The lawyer profession runs as a criminal cult enterprise. Do what you must to avoid facing criticism and any questioning of your supernatural cult indoctrinated core doctrines.

    The idea of a fictional character setting the standard of conduct. How is that less of an endorsement of religion than saying Jesus is setting the standard of conduct? The term "reasonable person" is in fact code for Jesus, and unlawful.

    The word "reason," has a specific function in Scholasticism, a church philosophy form the 13th Century, from which all central lawyer doctrines, unlawfully came. The Seven Deadly Sins and the fall from Eden mislead logic and intellect when it comes time to make moral decision. "Reason" is the best guide. What is "reason?" Reliance on the New Testament, the most reliable guide to moral decision making. The word, reason, directly uses and endorses the Catechism. There are even "elements" to be analyzed in the Catechism to determine whether someone has committed a deadly sin. One element is, of course, intent. If that sounds familiar, it is because the core doctrines and methods of analysis of the common law are from the Catechism. If you want to see the tightest, best IRAC you have ever seen read a little St. Thomas Aquinas. The IRAC is from a church and unlawful.

    I am curious if you were ever told this meaning of the word, reasonable, in law school.

    Back to hostile environment litigation. As a defense lawyer, you defend this bogus, pretextual field because your job comes from the plaintiff lawyer, and not from the client. You do not want to see any damage done to or even any questioning of the plaintiff side. Even your training seminars are not useful, you admit, except as a pre-emptive defense. At the point of a gun, employers are forced to hire you, or face ruinous future litigation.

    In this complaint defendant list, find a harasser's name or any remedy against a harasser. These had assets, houses, cars, savings account. Where are their names?

    I do not distinguish between the defense bar and the plaintiff bar. Both have pretextually plundered the productive sectors of our economy. Both are responsible for the economic crisis. Mitsubishi Motors took years to recover from this attack. Both bars should be held accountable.

  22. says

    Ken: The author of SC will gladly send you a resume, and a cell phone number. Just ask. Mike, you too. You can parse it word for word, and finds all kinds of weaknesses to attack ad hominem.

    How would that solve the problem of the failure and the damage caused by your legal specialty?

  23. Patrick says

    The term “reasonable person” is in fact code for Jesus, and unlawful.


    I've gotten a few people of of scrapes caused by behavior which was of a sort Jesus wouldn't approve. Jesus never rear-ended anybody, and would have healed the whiplash if he did.

    That said, I'd ban you now, but you're picking your fight with Ken, so I'll leave it to him. He may be a more reasonable, Jesus-like person than I am.

  24. says

    Patrick: Try being more lawyerly.

    Ban me. The intellectual level here is not as I wish it were. I am probably not returning unless it picks up right away. This is like the remedial special ed section of law school. One has to explain the basics in concrete terms. Unruly cursing, and personal insults follow when you try to help the unfortunates here.

  25. Patrick says

    Supremacy, your wish is my command. And I'll ban you in a lawyerly fashion, if it satisfies your martyr complex:

    "NOW COMES Popehat, and complaining of Supremacy Claus, alleges and says that Supremacy Claus is a tiresome jackass…"

    Do you want me to say something in Latin? Or would you prefer Greek?

  26. Mike says

    Years ago when first dealing with Clause, I thought he was hilarious. The problem is that he never comes up with new material. It gets old hearing about how the reasonable man standard violates the Establishment Clause…. for the 15th time.

    If he came up with new material, he'd be the source of endless hilarity.

  27. Patrick says

    You've long since established that you're an odder bird than any of us, Mike, and I mean that as a compliment. So it doesn't surprise me you found him amusing at one time.

    I, Pink Boy that I am, found him boring after his first post, but I 'spect I deal with more crazy pro se litigants than you do, because insurance policies cover and defend suits filed by nuts as well as those filed by the sane, and that's what I do. When you've defended twenty suits by people who claim the Third Amendment means ATMs should deliver quarters, well…

    I look forward to banning him at his work address and his public library address when he returns, as he's asked me to do.

  28. says

    I sort of like his theory. Since the entire intellectual heritage of our common law system is religious — including everything that led to the Bill of Rights (which, after all, explicitly mentions reasonableness) — Supremacy Claus seems to believe that the Establishment Clause violates itself.

  29. says

    There are, by the way, genuine reasons to be concerned about the scope and implications of the hostile environment doctrine. David Bernstein of the Volokh Conspiracy has documented the tension between the First Amendment and harassment law, for instance. But I'm pretty sure David was talking about the freedom of speech clause, not the Establishment Clause.

  30. Doug says

    Gee, I have never encountered SC b4, despite being a reader of VC and Overlawyered. I found his arguments strangely interesting for a post or two. Unfortunately it was like watching a scratched DVD. BTW, his argument about reason I found to be illogical. Appealing to Aquinas (who had some good philosophical ideas about law) and the Bible to define our legal definition of reasonable is incorrect. They have different definitions and different uses.

  31. says

    Hi Ken,

    First off, I think it's great that you're taking an approach to sexual harrassment that does not involve lobbying for some intrusive government intervention in the workplace ( or somesuch ).

    I do, however, have somewhat of a concern about sexual harrassment policies and training; namely: that these measures can make businesses less likely to hire women, or gay people, etc., because those businesses do not wish to have to either undergo sexual harrassment training for their employees, or do not wish the possibility of a sexual harrassment lawsuit further down the line?

    Do you think there is a way around this? Or is there already a way around this that I'm ignorant of?



  32. says


    My approach as a hired trainer is different than my approach as a snarky anonymous internet commentator, of course. My aim as a trainer is to (1) satisfy California statutory requirements that employers with 50+ conduct specified training, (2) conduct training that, if sexual harassment occurs, will be effective in demonstrating that the employer took reasonable steps to prevent it, thus preventing or limiting employer liability, and (3) actually change the way people act. As I've said before, 80% of the people I train would never do this stuff, 10% can be trained not to do it, and 10% are untrainable and will do anything that amuses them.

    As I've also said, a large part of current sexual harassment training is countering the right-wing-talk-radio-WARGLBARGL that tells people that sexual harassment law is all a commie feminazi lawyer plot and that you can be held liable for any silly little thing. It's actually pretty hard to prevail in a sexual harassment case, the standard for "severe or pervasive" is high enough that lots of cases are dismissed or resolved at summary judgment. Therefore, in partial answer to your question, any hypothetical disinclination to hire women, gays, etc. should be countered by educating employers on what the provisions of the law actually are.

    The notion that employers will refuse to hire women or gays for fear of being sued for sexual harassment is one that you'd think could be tested factually. I haven't seen any studies suggesting that there is a trend towards fewer women being hired as sexual harassment law has developed — in fact, women are a considerably larger percentage of the workplace than they were when hostile work environment law began developing in the 1980s. Also, there are parallel legal prohibitions against race-based workplace harassment, and I haven't seen any indication that those prohibitions have reduced minority hiring.

    Moreover, refusing to hire based on gender — even if it's because you don't want to be sued — would expose businesses to an entirely different array of lawsuits, and would be irrational on that basis. Of course, people act irrationally all of the time. I'm just not convinced this particular irrational approach is actual rather than hypothetical.

  33. says

    Ok, thanks. I just wanted to get an actual lawyer's perspective on this.

    I must admit, I had fallen prey somewhat to those right-wing talking points; it's very re-assuring to know that sexual harrassment suits have a very heavy burden of proof to them.

    Another question comes to mind though: in defamation lawsuits, if the person raising the lawsuit does not win the case, they are generally liable to compensate the person they brought to court. Does the same thing apply to sexual harrassment lawsuits?

  34. says

    I must admit, I had fallen prey somewhat to those right-wing talking points; it’s very re-assuring to know that sexual harrassment suits have a very heavy burden of proof to them.

    It's fairly difficult to prevail on one — many are eliminated at the summary judgment stage, at least in this state. The flaw in the system is that there is a low barrier to filing one and forcing the defendant to incur legal costs. Nevertheless, on average, in my experience, plaintiff's lawyers will file a personal injury suit with a lot less evidence than they'd require to file a sexual harassment suit.

    Another question comes to mind though: in defamation lawsuits, if the person raising the lawsuit does not win the case, they are generally liable to compensate the person they brought to court. Does the same thing apply to sexual harrassment lawsuits?

    Actually, in most situations in American law a defamation plaintiff who loses is not liable for defense legal fees. Some states — like California — have an anti-SLAPP law permitting a defendant to file a motion to dismiss early in the case to determine whether the speech complained of is clearly protected by the First Amendment or state law. If the defendant wins that motion, they get legal fees. But even those states generally don't have a loser-pays system for defamation suits that comes into play after summary judgment or trial.

  35. says

    Really? That's interesting. I think Canadian law might be a bit harder on SLAPP lawsuits than American law, then, because I seem to recall hearing that in Canadian defamation cases, plaintiffs often have to pay at least part of the cost of the defendent's legal fees.

  36. Andrew says

    Sorry to derail the troll-train, but I just wanted to say that I really enjoyed the AAR. Almost as good as the Empire Total War – Barbary States AAR that I've been reading, expect your screenshots aren't as good.

  37. David Schwartz says

    You seem to think that any connection whatsoever between anything a government does and anything you can associated with religion violates the establishment cause. Presumably, you would argue that if a person kills in the name of his god, the government can't prosecute him, because to do so it would have to refute his religious claims (if an all-good god did in fact tell him to kill those people, can you fault him for obeying?). This is, quite obviously, a completely mistaken view of the establishment clause.