

My letter to Jim Franklin about why I'm leaving SendGrid - erikpukinskis
http://snowedin.net/blog/2013/03/21/2349/

======
nemothekid
Not sure I can agree with this letter.

1.) From what I can gather she wasn't the direct target of abuse, so to frame
that was is disingenuous. I understand that making "dongle" jokes at a
conference is inappropriate, but its nothing more than inappropriate.

2.) How she handled it was completely wrong and unprofessional. Again like
Amanda Blum[1] states, she has frequently sidestepped the right channels and
has taken issues into her own hands. This has caused considerable trouble for
PyCon, SendGrid and PlayHaven. SendGrid, should not be DDoS for several hours
over a dick joke. People lost money. More than anything that is the take away
here. I doubt Adria would have lost her job if she took it twitter _after_
coming to the conclusion that the men won't be apologetic _and_ PyCon wouldn't
do anything about it.

[1]<https://amandablumwords.wordpress.com/2013/03/21/3/>

~~~
dalke
I don't see where the letter says or implies there was direct abuse. It just
says abuse.

I interpret it as meaning that the author believes that indirect abuse,
including hearing sexist jokes while in the workplace, should also be
"absolutely unacceptable."

That is not a novel or even rare viewpoint. For examples that I easily found:

"Sexual abuse includes: Telling sexual jokes that make the victim
uncomfortable" - <http://haventhedalles.org/sexual-abuse.html>

"Sexual abuse ... [can even take the form of] telling sexual jokes at the
victim’s expense." - [http://www.flaknelaw.com/minnesota-family-law/domestic-
viole...](http://www.flaknelaw.com/minnesota-family-law/domestic-violence/are-
you-a-victim/)

"[Patterns of] Sexual Abuse .. Makes sexual jokes about women" -
<http://www.wcsafeharbors.com/domestic_violence_patterns.html>

This is why documents like <http://www3.uakron.edu/lawrev/robert1.html>
include things like:

> Professor Catherine MacKinnon advises companies to warn employees against
> posting suggestive photographs, telling sexual jokes or making innuendoes,
> or romancing subordinates. ... Finally, she says that the company should
> prohibit everyone in the company from retaliating against a worker who files
> a sexual harassment complaint.

Do also note that this firing treads close to the anti-retaliation laws.
Quoting from the EEOC at <http://www.eeoc.gov/laws/types/facts-retal.cfm> :

> An employer may not fire, demote, harass or otherwise "retaliate" against an
> individual for filing a charge of discrimination, participating in a
> discrimination proceeding, or otherwise opposing discrimination.

I am not saying that this firing is in violation of the law and EEOC rules,
because I'm not a lawyer and I don't know the case history. But my naive
reading of the EEOC Compliance manual, at
<http://www.eeoc.gov/policy/docs/retal.html#IIpartB>:

> Public criticism of alleged discrimination may be a reasonable form of
> opposition. Courts have protected an employee's right to inform an
> employer's customers about the employer's alleged discrimination, as well as
> the right to engage in peaceful picketing to oppose allegedly discriminatory
> employment practices.

suggests that posting those pictures is likely a protected action. If so, then
while you may think it's "unprofessional", it's not a valid reason for firing
someone.

(The laws are made even more complicated by a balancing act between what a
"reasonable person" would expect, the understanding that an employee don't
know all of the details of the law, and more factors. Like, Richards's job
requires going to conferences, hence PyCon is part of the workplace, but
SendGrid doesn't have control over what happens at the conference, so
discrimination claims filed to SendGrid are useless.)

I'm pretty sure you don't know how the EEOC would handle this case either,
since your #2 does not reflect at least my limited understanding of the
relevant laws. Protected opposition can include doing things that are
"unprofessional" and things that cost others money (the EEOC's example is a
production slow-down).

Also, you brought up an account of how "she has frequently sidestepped the
right channels", but unless they were related to her job, I suspect that they
cannot be used to fire someone. Specifically, Colorado law C.R.S 24-34-402.5
("Unlawful prohibition of legal activities as a condition of employment")

    
    
        (1) It shall be a discriminatory or unfair employment practice for an employer to
        terminate the employment of any employee due to that employee's engaging in any
        lawful activity off the premises of the employer during nonworking hours unless
        such a restriction:
    
          (a) Relates to a bona fide occupational requirement or is reasonably and rationally
          related to the employment activities and responsibilities of a particular employee
          or a particular group of employees, rather than to all employees of the employer; or
          (b) Is necessary to avoid a conflict of interest with any responsibilities to the
          employer or the appearance of such a conflict of interest.
    

(SendGrid appears to be a Colorado company, but other states have similar
laws. See also the note 'This section applies to lawful, off-duty conduct,
even if it is work-related. Insofar as the section refers to "any lawful
activity", it can be presumed that the general assembly meant all activity
without limitation. Accordingly, damages could be awarded to person who was
terminated for making a complaint off the premises of the employer during
nonworking hours about the safety of a work site. Watson v. Pub. Serv. Co.,
207 P.3d 860 (Colo. App. 2008).')

Thus, it really does read that if Richards is fired because of any of the
reasons you gave in #2, then it's likely an unfair and illegal employment
practice, and Richards can sue and win.

~~~
nbouscal
They were not sexual jokes at Adria's expense. They were not sexual jokes
about women. They were not sexist jokes. They were jokes about dongles. Men
make dick jokes. Women make dick jokes. They're usually in bad taste, but they
are in no way sexist. This wasn't abuse, it was a publicity op that went
south. Adria saw an opportunity for a spotlight and didn't foresee the
consequences of that spotlight. Judging from her blog post, she's more of a
sexist than the joker, because she makes the implicit assumption that other
women can't be around sexual humor. Anyone who spends any time with women
knows that that is not the case; most of my female friends make dirtier jokes
than I ever would. The jokes were not discriminatory, they were not
prejudicial, they were not sexist, and they were not abuse.

~~~
dalke
I don't understand your argument. Are you following up to my response to point
#1 or #2?

In regards point #1, the law is pretty clear that a joke does not need to be
sexist or even sexual for it to be part of a hostile workplace environment.
And my reading of the letter is that the letter writer believes that any
sexual joke at the workplace is a form of verbal abuse.

While that is the considered opinion of the letter author, the law and courts
do not agree that a single instance is sufficient to indicate workplace
discrimination. But nemothekid is incorrect in saying that the letter author
framed this in terms of direct abuse. The letter is actually best understood
if "abuse" means "direct or indirect abuse" and is not restricted to "direct
abuse." (After all, no one has made the claim that there was a direct abuse.)

In point #2, nemothekid attempts to justify the firing, but the arguments
given (eg, "People lost money", "unprofessional"), when in the context of a
discrimination report, may not legally be used to fire someone, based on my
understanding of Title VII. I also pointed out that what she did in "public
shaming" was legal. While it might have been against PyCon's code of conduct,
no complaint was made.

Even if the company decided to fire her because of her previous actions,
independent of this most recent event, a court will likely find that it is a
pretext for an illegal action. Quoting from the EEOC, "Even if the respondent
produces evidence of a legitimate, nondiscriminatory reason for the challenged
action, a violation will still be found if this explanation is a pretext
designed to hide the true retaliatory motive. ... Pretext can also be shown if
the respondent subjected the charging party's work performance to heightened
scrutiny after she engaged in protected activity"

I think the comment about "heightened scrutiny after she engaged in protected
activity" is apropros, don't you? Do you honestly think she would have been
fired had there been no heightened scrutiny?

Now as to your comments here, all of your objections ignore the point. Firing
someone who made a legally protected and truthful complaint about possible
workplace discrimination is illegal. (Everything I've read has said that the
complaint was truthful.) Firing them for some other reason as a pretext for an
illegal reason is also illegal.

The law does not require that the sexual jokes be at Richard's expense in
order for her complaint to be protected, the law does not require that the
sexual jokes be about women (or even about the complainant's own gender) in
order for her complaint to be protected. The law doesn't require that the
complainant have no ulterior motive, nor require that the complainant be
without sin before casting the first stone.

In fact, to require any or all of these will greatly reduce the power of Title
VII. It would mean that I can't complain in order to protect my Polish co-
worker from a workplace hostile to foreign born workers (being neither the
person attacked nor Polish), even though I as an American-born person am
likely to face less reprisal for complaining. It would also mean my Polish co-
worker couldn't file a complaint if for whatever reason he himself had ever
told a Pollock, or a Russian joke. Do you really want the Civil Rights Act to
be so constrained?

The law is quite clear. If someone make a truthful claim about sexual
harassment, which is believable by at least one reasonable person, then that
complaint is a protected action and may not be used to as the basis for firing
the person who made the complaint. No matter if that complaint is made in
private or public, no matter if that complaint may cause economic damage or
embarrassment to the company, no matter if the incident occurred at the
company's workplace or elsewhere, no matter if it was eventually found to be
non-discriminatory.

(There are a few obvious restrictions, like the complaint cannot be in the
form of sabotage, but do you really want me to quote more laws and legal
decisions?)

Am I wrong? Feel free to show me how I've misunderstood the law. Otherwise I
will continue to conclude that arguments like yours are meant to defend a
personal belief which is opposed to the law.

Does your belief have any deeper moral basis or is it specific only to this
single incident? Can you explain how you would like to change the law, in
order to make a better future?

~~~
nbouscal
See my reply to you elsewhere in this comment tree re: law vs. culture.

------
sheraz
...And so continues the chain of overreactions...

The emotional development of all involved, including these shallow protests,
have the funk of adolescence and immaturity. I keep waiting for the principal
to walk down the hall and break up the tantrum and shouting match.

Erik, grow up. Adira, grow up. Guys in the back, grow up.

Let me continue the High School metaphor for a moment:

    
    
      Guys in the back, you are two man-boys who never matured or learned any etiquette,
      and your dick joke was (unfortunately) overheard by the wrong person.
    
      Adira, you are the nosy busy-body that would rat out anyone who you perceive to 
      break the rules.
    
      Erik your symbolic protest reminds me of the permanently "friend-zoned" guy who 
      tries to show that not all men are pigs.
    
    

That is the level of drama here. Its playing out like a lost episode of Saved
by the Bell. I keep waiting for Screech to bring some levity to the situation.
Because that is not going to happen, I will leave you with this:

    
    
      Q. How many feminists does it take to screw in a lightbulb?
      A. One. AND THAT IS NOT FUNNY!
    

Edit: better word choice

~~~
Gigablah
Careful now, that joke might get you fired.

------
michaelwww
Stephen Fry: _It's now very common to hear people say 'I'm rather offended by
that.' As if that gives them certain rights; it's actually nothing more...it's
simply a whine. 'I find that offensive,' it has no meaning, it has no purpose,
it has no reason to be respected as a phrase. 'I'm offended by that,' well so
fucking what?_

Ricky Gervais: _Just because someone is offended doesn't mean they're right._

~~~
erikpukinskis
I don't give a shit about people being offended. If the only thing happening
is someone being "offended" then there's no harm, no foul. Go along with your
day.

Now, in cases where people are being harmed, then I care. This is such a case.

~~~
rsanders
What was the harm, exactly? She overheard a stupid joke far less crude than
one might hear on any television show during prime time. It was no worse than
the one she posted on her own Twitter.

~~~
erikpukinskis
Women in our industry are forced to listen to constant jokes that range from
the one she heard to far worse. This little joke would probably not be a
problem if if were isolated. But because they happen all the time, from all
directions, each little joke has the potential to be a harmful barb.

And the fact that she posted a joke to her Twitter doesn't change anything.
There is massive pressure on women to be sexist too, to prove to men that
they're cool and can be trusted, and to fit in. Women (also have to find ways
to normalize sexist behavior so they don't go crazy. The fact that a women
capitulates to this pressure on one day doesn't make her fair game for any and
all sexist abuses on another.

~~~
ramblerman
Perhaps white knights like yourself are the real sexists here.

You buy into, along with Richards, the notion that all women are victorian
prudes and can't deal with off-beat humor.

These men didn't direct their lowbrow humor at adria. In fact they didn't even
direct it at women. They compared their dongles and joked about forking the
'male' speaker.

~~~
dalke
The issue has nothing to do with being a prude. The law says that certain
workplace practices are illegal. The law clearly says that some forms of
workplace humor, including sexist jokes, racist jokes, jokes about religion,
and more, might be part of an workplace culture that is illegally
discriminatory, and may be reported without fear of reprisal from the
employer.

Yes, the law says that reporting potential cases of workplace harassment is a
protected action, and cannot be used to fire someone.

The law does not require that sexist humor be directed towards the same gender
as the person who reported the incident, just like it doesn't require that
racist humor be about the same race as the person who reported the incident.
The law doesn't even require that the person who reported the incident be the
one who was subject to the harassment. The law even protects people who make a
truthful report that is later determined to not be discriminatory.

The same laws do not apply to watching prime-time television shows, so the
earlier comment of rsanders does not apply. One difference is that it's easy
to turn the television off, while it's hard to quit a job and find a new one.

Someone on cable television can tell racist jokes until the cows come home.
Telling racist jokes at work, no matter how funny the jokes are, can create a
hostile work environment, in violation of the law. The same with sexist jokes.
That's because the law has special protections for race, religion, sex,
marital status, veteran status, and others.

You might think that details of laws are as useless as the White Knight's
"anklets to guard his horse against shark bites", but the law is the law.
Reporting possible cases of workplace harassment is protected under Title VII
of the Civil Rights Act and may not be used as the basis for firing someone.

Your personal beliefs on who the sexists are may be entirely correct, though I
doubt it. But your personal beliefs are almost diametrically opposite what the
law says, while the events we're all talking about are definitely well-defined
and protected in current law and legal practice.

------
bigalo93
Documenting a problem is completely different from public humiliation. This
company did the right thing. You say Adria received abuse, but out of all I
have read, including her own blog post, she was not abused. She was the
aggressor. These men didn't even know she was offended. If she would have
asked them to be more polite, I am confident they would have done the right
thing. You, I must say, are causing an issue with a company in the right. So
maybe they are better off without you, Heh?

~~~
7beersonthewall
Right on... She went to Twitter. She opened the can of worms instead of saying
something directly to them. She should have expected what she got.

~~~
monkeyspaw
You can't seriously suggest that she deserved the misogynistic abuse heaped on
after the fact, can you?

~~~
jrdn
No, she didn't. The Internet hate machine went out of control as it has a
tendency to do. The fact that gaooened afterwards, however, doesn't make her
initial reaction to name and shame these guys more acceptable.

~~~
dalke
Title VII of the Civil Rights Act of 1964 was put into place precisely because
people in a discriminated group would speak out, only to be told that their
manner of speaking out was not "acceptable." "Speaking out" under Title VII
includes picketing, writing letters to customers about the discrimination, and
engaging in work slow-downs. These are not acceptable actions to some, but
they are legally protected actions and a company cannot fire an employee who
carried out one of these actions.

Since what she wrote specifically refers to sexual harassment ("Sexual
harassment is a form of sex discrimination that violates Title VII of the
Civil Rights Act of 1964". "[It] 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", "The harasser can be ... a non-employee." - EEOC's "Facts about
Sexual Harassment"), it's almost certainly a protected action under Title VII.

If so, then while it may not be acceptable to you and various others, it's
illegal for her company to fire her because of that action. Assuming I
understand the law correctly.

To show I'm not just making this up, I'll quote from the judgement in Sumner
v. United States Postal Service, 899 F.2d 203 (2d Cir. 1990): In addition to
protecting the filing of formal charges of discrimination, Sec. 704(a)'s
opposition clause protects as well informal protests of discriminatory
employment practices, including making complaints to management, writing
critical letters to customers, protesting against discrimination by industry
or by society in general, and expressing support of co-workers who have filed
formal charges. See Grant v. Hazelett Strip-Casting Corp., 880 F.2d 1564, 1569
(2d Cir.1989), and Schlei & Grossman, Employment Discrimination Law, 548-49
(1983)."

See the part about "protesting against discrimination by industry"? Doesn't
that describe this situation almost exactly?

Now, if she broke a law, or violated some employee policy in a way that has
nothing to do with Title VII nor is some other illegal practice (eg, it's
illegal to suddenly fire her for doing personal blogging during company time
if her supervisors had long known about that practice and had never given a
caution or warning that it was a fireable offense) then that's a different
issue. But no one has suggested anything of this sort.

So, while you might be offended by what she did, that doesn't mean she "should
have expected what she got" if that includes that she got fired from her job.

------
tomflack
> Richards should be absolutely commended for what she did, documenting and
> publicizing the abuse against her. It’s extremely hard to do, and it’s
> incredibly valuable to the community.

From what I understand, she wasn't subject to abuse until after the tweet went
live. She overheard some slightly lewd jokes not directed at her and decided
to use a public forum to shame the jokers instead of more appropriate means.

~~~
erikpukinskis
In the context of a professional environment with fairly constant misogyny, I
think it does constitute abuse. She's just trying to attend a conference and
she's forced to stop focusing on the tech, stop focusing on doing her job, and
instead focus on the people behind her and whether she's safe in the space.

The hypervigilance that pervasive sexism in the tech community demands from
women is extremely harmful. It makes these spaces very unpleasant for most
women. And so all women are excluded except the handful with very thick skin
who think these things are "no big deal".

~~~
citruspi
> she's forced to stop focusing on the tech, stop focusing on doing her job,
> and instead focus on the people behind her

Assuming that this was true - she was so overwhelmed by jokes about a dongle
that she could not concentrate on the conference - she could have easily
turned around and told them that the conversation made her uncomfortable. She
did not have to, and should not have, publicly shamed them for a private joke.

> whether she's safe in the space

Where does this come from? It was a joke about a dongle. Anatomy. Even if it
was sexual, which is questionable, she was not threatened. They never
threatened her. They never gave her lewd looks. They were never a threat to
her or other people at the conference.

~~~
erikpukinskis
> She did not have to, and should not have, publicly shamed them for a private
> joke

Why shouldn't she have? It's harmful to the community. Until we, as a group,
create a culture of publicly standing up to these things, and supporting those
who do, they won't change.

> she was not threatened

Sexist jokes come in a wide range of shapes and sizes. In our culture, women
are usually blamed for violence against them. They are held responsible for
the company they keep, and the situations they get themselves into.

But the truth is, there is NO reliable way to tell whether a man, or a
situation is truly safe for you. Friends, people you're dating, colleagues,
private parties, worksplaces all can go from "seems save" to "violent" in the
blink of an eye.

As such, women are forced to develop a set of vague signals that they must be
constantly vigilant of. One of those signals is how men use and respond to
sexist jokes. By telling sexist jokes, you are engaging many womens' Safety
Detection System.

------
IvyMike
This whole situation has been a clusterfuck, with overreactions by almost
everyone involved.

This strikes me as yet another overreaction.

~~~
erikpukinskis
That's cool, you're entitled to your opinion. But you writing that adds
nothing to the conversation.

I think the fact that the vast majority of women are not comfortable going to
tech conferences and working at many tech companies is actually a big deal,
and the rare cases where someone actually DOES something in response to it is
actually a pretty landmark event that deserves significant attention.

If you feel differently, at least try to articulate why.

~~~
dopamean
I'm not disagreeing with you but where do you get this stuff about the vast
majority of women being uncomfortable going to tech conferences? Is that
anecdotal? Is there a study you can cite?

Also, just because someone is offended doesn't give them the right to respond
however they want. They still need to be responsible.

~~~
erikpukinskis
Tech conferences are overwhelmingly male. Just look around.

~~~
dopamean
Yes. That is obvious. But how does that translate to the claim you made that
the vast majority of women are uncomfortable going to tech conferences?

------
escaped_hn
I fail to see how she was "abused" at Pycon.

~~~
dalke
Do you think abuse is limited to physical abuse?

Verbal abuse is still a type of abuse. Though as Wikipedia points out,
"[d]espite being the most common form of abuse, verbal abuse is generally not
taken as seriously as other types, because there is no visible proof..."

I believe the logic is pretty straight-forward. Sexist opinions in the tech
industry (and/or culture in general) have lead to a hostile workplace for a
woman whose job includes going to many tech conferences and who often hears
sexist jokes and other (unstated) sexist statements. These are a form of
verbal sexual harassment, which is a type of verbal abuse.

To continue from the same Wikipedia citation for "Verbal abuse", "In reality,
however, verbal abuse can be more detrimental to a person's health than
physical abuse."

~~~
nbouscal
The jokes were not sexist. I've had to type that sentence so many times the
keys are starting to wear in. The jokes were not sexist. They were not about
women, directed towards women, or discriminatory towards women. They didn't
have anything to do with women at all. Calling a dongle joke sexist is
extremely detrimental because it distracts from real instances of sexism that
do occur within this community. We need to talk about the real issues, and
this incident is not one of them.

~~~
dalke
Jokes do not need to be directed towards women in order to be sexist. Sexist
jokes directed towards men can also be sexist and contribute towards a hostile
workplace. Nor do the jokes need to be directed towards the person or even the
gender of the person making the complaint. That's well established by the
courts.

Quoting from the EEOC:

> Sexual harassment can occur in a variety of circumstances, including but not
> limited to the following:

* The victim as well as the harasser may be a woman or a man. The victim does not have to be of the opposite sex.

* The harasser can be the victim's supervisor, an agent of the employer, a supervisor in another area, a co-worker, or a non-employee.

* The victim does not have to be the person harassed but could be anyone affected by the offensive conduct.

* Unlawful sexual harassment may occur without economic injury to or discharge of the victim.

* The harasser's conduct must be unwelcome.

You may say that going after this situation is "extremely detrimental" to the
overall cause, but you've switched different topic. escaped_hn asked where the
abuse claim came from, not if the abuse claim was justifiable.

Let's see how this an organization's Harassment policy might handle this. I
quote now from <http://www.maine.gov/ag/about/harrassment_policy.html> :

> Further examples of sexual harassment include: behavior that is verbal and
> sexual in nature - such as comments about a person's looks, personal
> inquiries, sexual jokes, use of derogatory sexual stereotypes, uttering
> sexually suggestive sounds, writing sexual notes, use of State computer
> equipment to send, receive and/or download material of a sexual nature; non-
> verbal sexual behavior- such as looking someone up and down, staring or
> leering at someone's body, deliberate blocking of a person's path,
> displaying sexual visuals, making sexual gestures; or physical - such as
> pinching, grabbing, sexual assault or any physical contact of a sexual
> nature.

> As a matter of State policy, any behavior of a sexual nature in the
> workplace is considered unprofessional regardless of whether it constitutes
> illegal sexual harassment. ... As part of their supervisory
> responsibilities, supervisors are required to actively prevent or stop
> inappropriate, unprofessional conduct in the workplace regardless of whether
> the conduct rises to the level of illegal harassment. If they become aware
> of any such conduct occurring through personal observation or information
> from another party, they must consult with the Office's EEO Coordinator and
> take immediate and appropriate corrective action, including discipline, to
> end the conduct. Corrective action is required regardless of whether a
> complaint is made or the conduct appears to be unwelcome. Even if the person
> providing information requests that no action be taken, the supervisor must
> contact the EEO Coordinator. Managers and supervisors who fail to fulfill
> their obligations under this policy will be subject to disciplinary action,
> up to and including discharge.

This unambiguously says that a supervisor at the Maine AG's office must report
any joke of a sexual nature, even if there's no complaint, no indication of if
it's unwelcome, no indication that it's discriminatory, no thought that it's
sexist, and even if there's a request that no action be taken.

So even if you don't think this is a sexist joke, the undeniable fact that it
is a joke of a sexual nature means that it is and unprofessional and
reportable behavior for some workplaces.

~~~
nbouscal
Consistently throughout this thread you go off into a legal discussion when
that's not what anyone is trying to talk about. We're talking about sexism.
The question is whether or not the joke was sexist. The answer is that it was
not. Jokes of sexual nature are inappropriate and unprofessional. That is
obvious, and everyone agrees. They are not, however, inherently sexist.

~~~
dalke
You're absolutely right that I'm talking about the law, and that I'm not
talking about if the joke is sexist or not. That's what this discussion should
be about, shouldn't it?

The law defines what discrimination means, with many cases brought to the
courts to flesh out the details, including a Supreme Court case that
establishes that sexual harassment is part of Title VII restrictions on sexual
discrimination in the workforce. It's much easier to reference these laws and
these legal cases, with reasoned judgments which are directly relevant to the
topic, then to suppose that my personal beliefs are the way of the world.

As such, my comments are not about the topic of whether the joke was sexist.
My comments are about the topic of if jokes like these contribute to a hostile
workplace. The Supreme Court in Harris v. Forklift Systems, Inc says

> This is not, and by its nature cannot be, a mathematically precise test. We
> need not answer today all the potential questions it raises, nor
> specifically address the EEOC's new regulations on this subject, see 58 Fed.
> Reg. 51266 (1993) (proposed 29 CFR §§ 1609.1 1609.2); see also 29 CFR §
> 1604.11 (1993). But we can say that whether an environment is "hostile" or
> "abusive" can be determined only by looking at all the circumstances. These
> may include the frequency of the discriminatory conduct; its severity;
> whether it is physically threatening or humiliating, or a mere offensive
> utterance; and whether it unreasonably interferes with an employee's work
> performance. The effect on the employee's psychological well being is, of
> course, relevant to determining whether the plaintiff actually found the
> environment abusive. But while psychological harm, like any other relevant
> factor, may be taken into account, no single factor is required.

Notice how there's nothing in there about being sexist? It's all about
discriminatory conduct.

So even if every reasonable person agrees that there is no sexism in the joke,
it could still be part of a hostile workplace. That's why I'm focused only on
the latter.

Now, as Oncale v. Sundowner Offshore Serv., Inc. points out, Title VII is not
a civility code:

> Title VII does not prohibit all verbal or physical harassment in the
> workplace; it is directed only at " discriminat[ion] . . . because of . . .
> sex." We have never held that workplace harassment, even harassment between
> men and women, is automatically discrimination because of sex merely because
> the words used have sexual content or connotations.

> We have emphasized, moreover, that the objective severity of harassment
> should be judged from the perspective of a reasonable person in the
> plaintiff's position, considering "all the circumstances." ... The real
> social impact of workplace behavior often depends on a constellation of
> surrounding circumstances, expectations, and relation ships which are not
> fully captured by a simple recitation of the words used or the physical acts
> performed. Common sense, and an appropriate sensitivity to social context,
> will enable courts and juries to distinguish between simple teasing or
> roughhousing among members of the same sex, and conduct which a reasonable
> person in the plaintiff's position would find severely hostile or abusive.

Part of the "constellation" might include the severity or pervasiveness of the
offensive acts acts. Part of it might include if there was an attempt to
effect change. Part of it might be the reaction of people when there is an
attempt to change things.

But none of it says that we can only look to see if a joke is sexist in order
to help identify if it might be part of a hostile workplace.

So I don't care what people are talking about, if they are only concerned
about if the joke is sexist or not. I care about if this was contributory
towards a hostile workplace environment, and I care about what mechanisms we
as the tech industry (and since I am a PSF member, what we as PyCon
organizers) should have in place in order to reduce hostility in the workplace
-- and yes, a conference is part of many people's workplace.

If your only interest is in if the joke is sexist, then you're spending all
your focus on the easy issue, and ignoring the more important and thornier
issues.

~~~
nbouscal
> You're absolutely right that I'm talking about the law, and that I'm not
> talking about if the joke is sexist or not. That's what this discussion
> should be about, shouldn't it?

No. Absolutely not. The law defines things for the legal system, not for our
society and not for our culture. The concern here is a cultural one, not a
legal one. The laws on the books are barely relevant to the real discussion
here.

> If your only interest is in if the joke is sexist, then you're spending all
> your focus on the easy issue, and ignoring the more important and thornier
> issues.

My interest is in whether the joke is sexist because of its relevance to
whether the culture is sexist. Many people are using the incident as evidence
of a pattern of sexism in the tech community. I'm arguing against that
conclusion, because the joke was not sexist.

The legalities are not more important. Thornier, sure, because the law is
almost always thornier. Not more important. Culture is more important than
law, every single time. If the culture of the tech community is positive and
welcoming, it won't matter what the law says because nobody will care to file
suits. If the culture of the tech community is negative and discriminatory, it
won't matter what the law says because women will simply avoid the tech
community. Either way, the culture matters and the law does not.

~~~
dalke
... Wow.

I propose that we shouldn't have a hostile workplace and you only want there
to not be a sexist workplace. (Title VII protections include race, color,
religion, sex or national origin, pregnancy, age, and disability
discrimination, all by the same language. You only want to focus on sex
discrimination?)

I propose that non-sexist jokes can still be a form of sexual discrimination.
You require that a joke be sexist before it is seen as discriminatory ("The
question is whether or not the joke was sexist.") even though the law doesn't
have that requirement. So you actually think that the current laws are too
broad?

If the men only tell non-sexist and tasteless poop jokes to women in the
workplace but tell each other non-sexist and hilarious poop jokes, might that
indicate a sexist workplace culture? I think it can. But it seems that you
would say it cannot be, because the jokes themselves are not sexist. Is there
ever a case where non-sexual jokes can be part of a workplace which
discriminates on sex? If so, might this incident be another such example? Why
or why not?

I propose looking to the law as a place where these issues have been well
discussed and fleshed out. You say to ignore laws and, I assume, ignore all of
the relevant and diverse case history? There's some wonderfully interesting
cases. Can a man sue other men for sexual harassment, even if none of them are
homosexual? Is sexual desire a critical requirement before sexual
discrimination can take place? Should there be provisions to prevent
retaliation for claiming discrimination, and if so, what constitutes
retaliation? Are anti-retaliation restrictions limited to financial
considerations, like being fired, demoted, denied a promotion, or denied
wages, or can a reassignment of duties "constitute retaliatory discrimination
where both the former and present duties fall within the same job
description"? (For example, can you assign the men to the worst locations and
the women to the nicest, even though both are doing the same job?)

Even if you disagree with the court's conclusions, the questions discussed
therein should be part of your repertoire.

I propose that laws are part of our culture. You say the law is barely
relevant. I assume you think that changing the laws won't help improve our
culture? How do you resolve the disagreements that will inevitably arise, when
someone claims sexual discrimination but another says it isn't?

Or do you think the laws we have now are good enough, and we just need to
change the culture to match the laws? I can agree with that. What is it that
you want to change, and how would that change have affected this incident?

~~~
nbouscal
Yeah, you're entirely missing the point. I haven't rendered any opinions
regarding current laws other than to say that they are not relevant in this
particular issue. I'm saying that the concern is the culture, not the law. The
reason I'm talking about sexism as opposed to discrimination regarding race,
color, religion, national origin, et cetera is that the jokes in question were
clearly not discriminatory in those areas. Nobody has claimed that the joke
was racist. That would be ridiculous. Many people have claimed that the joke
was sexist, and that is the claim that I am taking issue with.

I'm talking about ignoring the law because culture is more important than law.
Yes, there is plenty of interesting case law, and that case law is interesting
when discussing the issue in a legal context. I'm saying that the cultural
context is more important than the legal context, and therefore the case law
is a complete non sequitur.

I would strongly assert that laws do not influence culture, and that rather
the exact opposite is true. Laws reflect culture. Laws enforce the norms of
the culture in which they are written. When the culture changes, the laws
change. The reverse is not true.

I have not been arguing for change. I do think that some changes to tech
culture should happen, because though the actual incident was not
discriminatory, the internet reaction clearly was. That is a much broader
issue, because internet reactions are always disproportionate and
discriminatory. That is a standing issue that must be solved. What I'm
asserting is that the joke was not discriminatory, and that the conference was
not a discriminatory environment. Though I was not there, from everything I
have heard from people who were, the conference was a very positive
environment. This is good, and I take issue with people who would cast
aspersions on the conference and the community as a whole because of a
'discriminatory' joke that was not in fact discriminatory at all.

------
tn13
Cant agree with this letter. It is stupid to call the dongle jokes cracked
between two friends as "abuse". This seems to be an over reaction.

Stop fighting the strawman err strawperson guys.

------
7beersonthewall
Stupid...

