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PaperclipPerfector  11mo ago (text post)   31540 thread views

Culture War Roundup for the week of May 22, 2023

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The Bud Light boycott continues. Anheuser-Busch is responding by sponsoring vet groups and commissioning ads that "will play heavily on themes such as football and country music". A glance at conservative comment sections reveals a few vocal consumers vowing that no amount of patriotic pandering will change their mind and that they will continue the boycott no matter what.

I am reminded of this apocryphical exchange between two Chinese officers late for battle:

What is the punishment for being late?

Death.

What is the punishment for rebellion?

Death.

Rebellion it is.

That is to say, a proper incentive structure should not only contain costs for injecting woke politics into business but also rewards for backpedalling.

On the other hand, the undisputed champions of pushing business and people around do not seem too keen on accepting apology. Or do they? The bottom line seems to be: If your public kowtow is more valuable for the propagation of the movement than the display of your head on a spike, you may get another chance (unless and untilyou even slightly step out of line again).

This seems ideal because the incentives for the victim thus contain an effectiveness criterion. Mouthing platitudes is not enough, you need to actually further the cause of your attackers. The uncertainty ups the ante for the victim.

On the other other hand, woke shaming campaigns might not be the ideal blue print for convervatives, given their lack of clout and high-brow media capture.

Football and country music are at best orthogonal to the culture war issue in question. Is Anheuser-Busch willing to put out a statement saying that transwomen are men, or perhaps to send out a commemorative can to a prominent anti-trans celebrity like J.K. Rowling? If not, let the boycott continue until the company is bankrupt, the office buildings burned, the executives' heads on pikes, the barley fields sowed with salt.

They are trying to apologize to their base without alienating progressives; they are trying to go back to appearing neutral. Cannot be done. They made the decision to enter the culture war; now they have to pick a side.

the barley fields sowed with salt.

Bud is about 30% rice. If American adjunct lagers died as a style, demand for barley might increase! I know, I know, hardly the point, but I'm still entertained.

Football and country music are at best orthogonal to the culture war issue in question. Is Anheuser-Busch willing to put out a statement saying that transwomen are men, or at least to send out a commemorative can to a prominent anti-trans celebrity like J.K. Rowling? If not, let the boycott continue until the company is bankrupt, the office buildings burned, the executives' heads on pikes, the barley fields sowed with salt.

Wouldn't that open them up to lawsuits based on a hostile work environment or some such?

Wouldn't that open them up to lawsuits based on a hostile work environment or some such?

Even if they did, ABInbev has the resources to go to the mat and fight such lawsuits all the way to the Supreme Court. If they did that I'd likely prefer ABInbev products, though not Bud Light.

Lawsuits from disgruntled employees are only one prong of the assault. If they came out and said “Dylan Mulvaney is a man” in a way that would satisfy Matt Walsh, an Alex Jones level cancellation would be on the table. What if the NFL told InBev to take their ad money and shove it? What if any channel that shows Bud Light commercials gets the Tucker Carlson treatment? What if every company that sells Bud Light has angry mid-level management angry that they have to sell “hate beer”?

If any of these sound unrealistic, you’re right. It would never happen. Corporate leadership would chicken out before any of these things took place.

Lawsuits from disgruntled employees are only one prong of the assault

Not just the lawsuits themselves, but the drumbeat of bad press from liberal outlets while you fight this out.

Corporations settle out of convenience in less daunting cases.

Of course. Which is why only one side wins the culture war.

I have to ask - has anyone ever been sued for a hostile work environment, and the "look at all the woke stuff we're doing" was found to be a valid defense? I'm a bit tired of these mundane "gosh, we didn't want to, but we really had no choice" theories of corporate action.

"Appropriate corrective action", usually meaning immediate warnings or firing and removal from the premises, is pretty well-supported in the caselaw: Pakizegi found that an employee's acts were specifically outside of the scope of the employer's liability because they fired the employee after a complaint, and this rule is codified in the CFRs (see national origin, sex).

Having and requiring anti-harassment training, and having and promoting complaint procedures is not as clear in the statute or regs, but is largely supported by caselaw as an expansion of the regulatory requirement for "reasonable care to prevent and detect". For sexual harassment (and because of the convoluted history there, anything gender- or orientation-related) Meritor Savings comes up again, but Faragher v Boca Raton has the bettery summary when it specifically held:

When no tangible employment action is taken, a defending employer may raise an affirmative defense to liability or damages, subject to proof by a preponderance of the evidence... The defense comprises two necessary elements: (a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. While proof that an employer had promulgated an antiharassment policy with complaint procedure is not necessary in every instance as a matter of law, the need for a stated policy suitable to the employment circumstances may appropriately be addressed in any case when litigating the first element of the defense. And while proof that an employee failed to fulfill the corresponding obligation of reasonable care to avoid harm is not limited to showing an unreasonable failure to use any complaint procedure provided by the employer, a demonstration of such failure will normally suffice to satisfy the employer's burden under the second element of the defense.

These cases dealt with more direct 'conventional' sexual harassment, but the expansion of their dicta to hostile work environments is pretty established at this point. ((Some states also just require this training, outright: Maine, Connecticut, California, Delaware, and New York, with Maine starting the trend in 1991.)) The Sixth Circuit has some dicta actively requiring it for any related employer defense, from Clark v. United Parcel, where:

While there is no exact formula for what constitutes a "reasonable" sexual harassment policy, an effective policy should at least: (1) require supervisors to report incidents of sexual harassment, see (2) permit both informal and formal complaints of harassment to be made, (3) provide a mechanism for bypassing a harassing supervisor when making a complaint, and (4) and provide for training regarding the policy.

But I don't know of any serious literature for how many other circuits use something akin to that rule even if they haven't explicitly said it. Kolstad does mean all courts have to consider anti-harassment training when considering if the employer has provided a "good-faith effort" to preventing harassment, and thus may not be held liable for punitive damages.

The general 'did good things'-style corporate progressive indulgences is more complicated.

Generally speaking and with some exceptions, courts disfavor character evidence, either good or bad. Saying "we posted rainbow hearts everywhere, so we couldn't have fired an employee for being gay" is not only an unsuccessful defense, but in many environments would even be acceptable to bring to a jury, for the same reason that most jurisdictions don't allow "this employer said this sexist thing unrelated to my case, so they must have done said a sexist thing while I did work for them" (there are a few increasing exceptions here in recent years, like California).

But for hostile work environments, the question isn't whether a specific bad act was done, but whether the overall culture of the workplace was "a working environment heavily charged with ethnic or racial discrimination", or their gender/sex/whatever. So there's definitely space for the overall charge of the working environment to be relevant evidence. But it's also a question of fact, eg something that would be resolved during a jury or bench trial, which leaves a lot fewer marks.

((Or even earlier: with a few exceptions, workplace discrimination lawsuits must first be submitted to the EEOC for mediation before a lawsuit can go anywhere.))

I was shocked at how employer friendly hostile work environment law actually is. Anything short of finding a noose in your locker and your supervisor laughing about it on multiple occasions generally gets dismissed. Cowardly and/or ideologically captured general counsels and HR departments have just been gaslighting CEOs about their level of liability for decades. None of this stuff is required from a legal perspective, and to the extent a company actually has to worry about hostile work environment liability, a fig leaf of "we made everyone attend anti-whiteness workshops" isn't going to help. Its just that by now, everyone is too terrified of their own young employees to call the bluff.

I don't think this is an accurate analysis of the current state of the law, or even the last couple decades. Reeves v. CH Robinson was 2010, McIntyre-Handy 1997, Robinson v. Jackson Shipyards was 1991. These might be bad behaviors, but they're not "noose in your locker" bad or Oncale bad.

Pakizegi technically found the bank not-responsible for an employee having "hung pictures of the Ayatollah Khomeni and a burning American flag in Iran in her own cubicle, and that the Bank failed to have the pictures removed for several weeks"... but only because "There is no dispute that after Ms. Pakizegi complained about the offensive photographs, Mr. Doggett ordered Ms. Dephouse to remove the pictures, had Ms. Dephouse transferred to another area of the Bank and subsequently discharged Ms. Dephouse, as part of the Bank's corrective action."

The thing is, almost all of these laws use the “reasonable person” standard. What a “reasonable person” considers hostile, intimidating, or abusive in 1990s Texas is very different from what a “reasonable person” considers hostile, intimidating, or abusive in 2023 California.

I have to ask - has anyone ever been sued for a hostile work environment, and the "look at all the woke stuff we're doing" was found to be a valid defense? I'm a bit tired of these mundane "gosh, we didn't want to, but we really had no choice" theories of corporate action.

That wasn't the claim. My claim is that a public anti-trans stance would open them up for lawsuits.

American courts always seemed kind of insane to me, so it wouldn't surprise me, but come on... how can advertising with JK Rowling be grounds for a lawsuit more than advertising with Dylan Mulvaney?

You're a gay employee. You have a fallout with your boss and you are fired. Now you get to claim that your fallout was caused by a culture of homophobia at the company, as evidenced by public statements.

You could construct a similar case with Dylan Mulvaney, but I somehow doubt courts will entertain the idea that those ads are evidence of an anti-Christian or anti-women bias.

You're a gay employee. You have a fallout with your boss and you are fired. Now you get to claim that your fallout was caused by a culture of homophobia at the company, as evidenced by public statements.

Except you won't find any statement by JK Rowling that's homophobic. You won't even find one that's transphobic. Your argument would end up looking like "JK Rowling is perceived by the trans community to be transphobic, therefore advertising with her is an anti-trans statement" or something. Now, like I said American courts are kind of insane to me, so the argument would fly for all I know, but the argument "wouldn't it open them up for a lawsuit" seems to explicitly assume the courts are ridiculously slanted, but the passive voice makes it sound like there's nothing to see here.

Except you won't find any statement by JK Rowling that's homophobic. You won't even find one that's transphobic. Your argument would end up looking like "JK Rowling is perceived by the trans community to be transphobic, therefore advertising with her is an anti-trans statement" or something.

No, it would end up looking like "JK Rowling is a well-known anti-trans hate monger as evidenced by this list of prominent anti-trans hate mongers published by this very serious NGO that employs very serious credentialled people".

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