Wednesday, March 5, 2008

Reading Book on Break=Racial Harassment?

Firelogo_2 Here is a remarkable story, highlighted by the Freedom for Individual Rights in Education's (FIRE) The Torch, and brought to my attention by Dennis Nolan (South Carolina):

In a stunning series of events at Indiana University - Purdue University Indianapolis (IUPUI), Keith Sampson, a university employee and student, has been charged with racial harassment for reading a book during his work breaks.   

Sampson is in his early fifties, does janitorial work for the campus facility services at IUPUI, and is ten credits shy of a degree in communication studies. He is also an avid reader who usually brings books with him to work so that he can read in the break room when he is not on the clock. Last year, he began reading a book entitled Notre Dame vs. the Klan: How the Fighting Irish Defeated the Ku Klux Klan. The book, which has garnered great reviews in such places as The Indiana Magazine of History and Notre Dame Magazine, discusses the events surrounding two days in May 1924, when a group of Notre Dame students got into a street fight in South Bend with members of the Ku Klux Klan. As an historical account of the students' response in the face of anti-Catholic prejudice, the book would seem to be a relevant and worthwhile read, both for residents of the state of Indiana and for anyone interested in this chapter of American history.

But others at IUPUI clearly did not see it that way. First, a shop steward told Sampson that reading a book about the KKK was like bringing pornography to work (apparently this holds true in his eyes regardless of the context in which a book discusses the KKK, the position it takes, and so on). Likewise, a co-worker who happened to be sitting across the table from Sampson in the break room remarked that she found the KKK offensive. On both occasions, Sampson tried to explain what the book was really about. Both times, the other individual refused to listen.

A few weeks later, Sampson was notified by Marguerite Watkins of the school's Affirmative Action Office (AAO) that a co-worker had filed a racial harassment complaint against him for reading the book in the break room. Once again, he attempted to explain the book's content, but Watkins too had no interest in hearing it. Despite his not being given a chance to defend himself, he subsequently received a letter from Lillian Charleston of the AAO, dated November 25, 2007, informing him that AAO had completed its investigation of the matter. The letter stated,   

You demonstrated disdain and insensitivity to your coworkers who repeatedly requested that you refrain from reading the book which has such an inflammatory and offensive topic in their presence...you used extremely poor judgment by insisting on openly reading the book related to a historically and racially abhorrent subject in the presence of your Black coworkers.

It went on to say that according to "the legal 'reasonable person standard,' a majority of adults are aware of and understand how repugnant the KKK is to African-Americans..." As a result of AAO's findings, Sampson was ordered to refrain from reading the book in the immediate presence of his co-workers and to sit apart from them whenever reading it.

To paraphrase EMF: "That's Unbelievable." So wrong on so many level, it reminds me of this blog post from the past. And the issues are not limited to employment discrimination ones, but also raise issues of prior restraint, freedom of speech and expression, the ability of an employer to control the off-duty conduct of an employee, and the allegedly one-sided nature of the investigation. Both Eugene Volokh and David Bernstein have highlighted the dangers that an over-aggressive application of employment discrimination laws poses for First Amendment rights in the public employment context.

Let's hope that wiser heads prevail and this disciplinary action is overturned by those who understand the purpose and policy behind employment discrimination laws.

PS

http://lawprofessors.typepad.com/laborprof_blog/2008/03/reading-book-on.html

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Comments

As a native Hoosier, I can tell you that the KKK was alive and well in Indiana (and not just the south, as so many people believe). Even when I was an undergrad, there were bus routes that were known to be unsafe for some because of Klan activity in the towns through which the buses passed. Anyone should be able to read a story about the Klan--particularly one that demonstrates the hatred and evil they perpetrated--during a work break. This is simply not racial harassment, at least as facts are stated. Ramona

Posted by: Ramona | Mar 5, 2008 1:50:01 PM

The co-workers' reactions were inexplicable, and the EEO officer's handling of the incident was unacceptable. Fortunately, it appears that cooler heads may have prevailed. The University sent Mr. Sampson another letter [http://nuvo.net/images/articles/022708/letter020708.pdf] in February stating that no disciplinary action will be taken against him. That letter also affirms Sampson's right to read on his break times. I do think the new letter is far too weasely and does not go nearly far enough in apologizing for what appears to have been outrageous conduct by University officials. But, at the very least, it seems that the University has responded to the negative publicity over this incident. It is curious that the FIRE report (at least as of 20 minutes ago) does not mention the second letter.

Posted by: eric | Mar 5, 2008 3:46:46 PM

Could be they didn't have it, Eric. Was it publicly available?

I agree that her second letter is weasely. I note she copied university counsel on it. My guess is that she wrote it under duress after the university's lawyer told her that she couldn't ban books.

Or perhaps it's worse than weasely --- it suggests that if this AAO concluded that he read a book intending "to cause disruption to the work environment," she would impose discipline. Harassment by reading a book?

I get the impression that she never heard of the First Amendment, or thinks that is doesn't apply to AAOs. As Eugene Volokh wrote on his blog, the employee would have been within his constitutional rights even reading a PRO-KKK book.

This case is just one silly example of how harassment law sometimes forces employers to become speech wardens. That should trouble anyone interested in individual liberty.

Posted by: Dennis | Mar 6, 2008 7:03:12 AM

FIRE has a follow-up post that includes Eric's link to the second letter:

http://www.thefire.org/index.php/article/9022.html

Posted by: Dennis | Mar 6, 2008 10:12:35 AM

I guess I'm wondering about a different take on this or at least one that seems to not be explored. Could it be that seeing the letters KKK repeatedly in the workplace (however it occurs) could create a racially hostile environment. I think it goes too far to say the co-workers reactions were unexplicable. To come to work and to see the words KKK in your workplace could be objectionable and reasonably so. For example, Randall Kennedy has written a book that has the N word in the title. Ostensibly, one of the purported salutory points is to take the sting away from the word. But couldn't African Americans rightfully feel that it doesn't matter what the purpose of the book is but the fact that being exposed to the word despite objection creates a hostile environment? Yes, I know there are constitutional implications and some questions about the adequacy of the investigation but certainly even reading this book on a break when repeatedly asked not to could be racial harassment. There seems to be a rush to defend this incident as some Orweillian attempt to stop reading while on a break when the actual symbol being displayed in the workplace while reading the book does have racial connotations.

Posted by: Michael Green | Mar 6, 2008 10:55:15 AM

I don't get it, Michael. How could reading a book be harassment? All the other workers have to do is ignore the reader. Besides, harassment has to be severe or pervasive, and I can't imagine any court finding that reading a book is "severe" or "pervasive" harassment. And that's leaving aside the constitutional question, still unanswered by the courts, as to whether anti-discrimination laws can somehow restrict First Amendment rights.

Are you really suggesting that our co-workers can bar us from reading books at work? So Jewish workers could claim harassment if someone reads a book about the Holocaust? Indian workers could do the same if someone reads about Columbus? Or if you read Kennedy's book in public, you're harassing your colleagues?

If you were only saying that the workers had a reason to gripe, I wouldn't be so bothered. People gripe about their co-workers all the time. But you seem to be suggesting that they have the equivalent of a heckler's veto on our reading material, and that the university has the right to enforce their veto by disciplining the reader.

I don't think the workers' and AAO's reactions are inexplicable, but I do see them as ignorant and (in the case of the AAO)oppressive. They reflect an all-too-common attitude that some unwritten constitutional right not to be offended trumps every other right. FIRE reported that the employee tried to explain what the book was about and that the others refused to listen. If that is correct, I'd add "closed-minded" to ignorant and oppressive.

By coincidence, I had dinner last night with an historian who worked for many years at Notre Dame. She knew the book and the incident and couldn't believe that anyone would object to reading about it. As she explained, the book told how Notre Dame students fought the KKK and won. The co-workers and the AAO would be better advised to read the book themselves or congratulate the employee than to be encouraged in their book-banning efforts

Posted by: Dennis | Mar 7, 2008 9:30:08 AM

Dennis, Sorry, been out of touch and apologize for the tardy response. Well, I think too much focus is placed on his right to read the book while on break. The focus should be placed on the fact that he is still in the workplace and his behavior can and apparently did affect others. Would it be appropriate if a student in a class has a screensaver that is from a website that flashes a picture of a member of the KKK in a white hood with the title of the book (even if the website is about the particular book in question) during a break before the class starts? Certainly, other students could find that screensaver offensive and distracting to them in the classroom and their ability to focus on learning once the class starts even when the student explained that this is from a website about this important book about how Notre Dame students fought the KKK. Would it be too much to just ask the student to turn off the screensaver when in the classroom and exposing it to other students who find it offensive and thereby preventing them from enjoying their educational experience when there is simply no educational need to have the screensaver on in the classroom? I don't think so. But maybe I'm just looking at this differently. And it can be classified as political correctness run amok so that we should instead tell the students who complained that it might be better for them to read the book that the symbol has injected in their minds and just shut up next time before they complain. I am definitely not saying it is okay to complain about a colleague's desire to read a book while on break. But I think there are certainly more obvious things that would be inexplicable than what was complained of here which appeared to be more than that.

So instead of focusing on the right to read a book during a break while still in the workplace setting, I was focusing more on the title and its potential impact on the workers. I think the words, KKK, could have a strong meaning to a black employee. Words have meaning and can't hurt. Historically, just the use of the term, KKK, or a burning of a cross sent a very powerful message and probably still does for many.

I tend to operate from the position of do no harm in the workplace if you don't have to do so. I just thought the commentary (not by you) that the workers' reactions were inexplicable was a bit too much. Unless you have walked in their shoes, how can you know the reaction was inexplicable in terms of something that clearly has a racial symbol, the KKK? And when the alternative offered was to still read the book but not in the presence of co-workers who had objected, it seemed to be too much focus on the ability to read the book and a discounting of legitimate concerns of co-workers with a minimally burdensome option on the reader.

And just reading Randall Kennedy's book should not be a problem. But if I had the book in front of me while reading and it had the title openly displayed, I don't see why that could not be offensive to colleagues. And what is the benefit to being allowed to do so? Certain words can hurt. And one of the words in his title can hurt. And when there is no legitimate workplace rationale for it, I don't see the concern. Mind you, I am not talking about the constitutional implications.

Essentially, I see this as a question of when we go to work should we be subjected for no real work-related purpose to things that can and do legitimately offend? And I'm not talking about reading a book. I'm talking about using words that can have harmful connotations. If there really is no work-related purpose, then why be so upset about a little restriction of not reading while in another's presence? And yes, these single events may not be a hostile environment but if it was identified as offensive as the black employees stated and the employee was knowingly allowed to repeatedly do it, then it would seem to become a hostile environment.

If this is just about stopping the reading of books, I agree this would over the top. If somebody reads a book titled, "Holocaust" that capitalizes on the many folks who fought against the nazi regime, I see no problem. But if I have see and be exposed to that word, Holocaust, in clear letters in the workplace and it creates particularly harmful memories for me, I say what's the big deal of being asked not to read it around people who are offended by it. In terms of the Notre Dame book, I'm not saying they are offended by the fact that he is reading a book during a break which would seem inexplicable. If it was just reading a book, how did the employees know to complain about the KKK? What if he was reading Alice in Wonderland? I would think it absurd to complain about that. But by bringing the subject, KKK, forward in the workplace, it forces the black employees to confront issues about the KKK at work, certainly an issue that has racial connotations, and is not something that I see as a job-related necessity unless you are a journalist or a civil rights worker or a scholar writing about the KKK. Finally, let's take the reading of the book out of it. Would it be harassment if the employee kept approaching black employees and saying he wanted to talk with them about this book he is reading about the KKK and they said please I don't want to hear about that subject?

Posted by: Michael Green | Mar 8, 2008 10:11:20 PM

"I tend to operate from the position of do no harm in the workplace if you don't have to do so. I just thought the commentary (not by you) that the workers' reactions were inexplicable was a bit too much. Unless you have walked in their shoes, how can you know the reaction was inexplicable in terms of something that clearly has a racial symbol, the KKK?"

The problem was not that someone was startled, or even bothered by a title. The problem was that they were not interested in the explanation. Certainly one can explain an initial impression about something being based on their personal experience. There is, however, no excuse for choosing willful ignorance and refusing to listen to explanations as an *excuse* to be offended, nor of a *university* exhibiting the same choice of willful ignorance in order to support the taking of offense.

There comes a point, Michael, where the person choosing to be offended *also* has to show just a teensy itsy bit of responsibility. Not much. Just an itty bitty bit. In an open society, we cannot demand that *everybody* rule their lives at the command of those who choose to go out of their way to be offended at every possible thing. A decent society is not ruled by the lowest common denominator. There comes a point where people have to learn to act like adults, even if it is more convenient for them to act like petulant children.

Posted by: billo | Mar 9, 2008 10:48:32 PM

Billo says it well enough that I don't want to belabor the point, Michael, but your response raises one additional point. You conflate the right of the co-workers to be offended with some duty of the reader to yield to their feelings and with the university's right to punish the reader. Lots of things my colleagues do or say offend me, but it never in my wildest dreams occurred to me that I had any right to demand that they stop or to demand that my university punish them if they didn't.

I understand that you would stop reading Kennedy's book if it offended someone. Maybe that's admirably sensitive. But do you really think your university has the right to order you to do so if you didn't so choose? Or to fire you if you still refused?

Posted by: Dennis | Mar 10, 2008 8:03:14 PM

Well, as you say, I won't belabor the point either. My point was that it was not inexplicable to have such a reaction either. However, I recognize a balance. I guess the intent of the reader is important to those involved. To me, I can see the impact and the explanation would not matter. To me it is the difference between the intent and the impact paradigm. Stiil my last point on this is I do not see this as a black and white issue. It has a lot of grey in it and trying to find the balance is not that easy. And if my employer wanted to restrict my need to read the book while in the workplace, I would have no problem as long as reading it had nothing to do with me performing my work duties. Again, that is separate from the constitutional issues.

Posted by: Michael Green | Mar 12, 2008 11:37:39 AM

Okay, I realized that I had not addressed the point that Billo raised about willful ignorance and responsibility. As I read the whole scenario here, if one is willing to accept the fact that one should not have to come to work and discuss the KKK regardless of whether there is a good non-work-related reason or not for doing so, I don't consider that willful ignorance or lacking in a teensy bit of responsibility. And we only have one side's position of what actually happened. I only raised the question that if it was really about the title (and how do we know they weren't startled) the response would not be inexplicable. And Dennis, if I was doing something that had absolutely nothing to do with my job duties in the workplace, and it offended other workers (no matter how eggshelled and sensitive and politically correct gone wild they might be), I would not be in the position of insisting on doing it. So I would not be fired for it. Certainly people can say things and if others don't like it they can ignore it. For example, I can always switch the channel or not view the blog. But if you have to be exposed to it in your work environment, it should be work-related whatever it is and in this instance all he had to do was read while not around these employees.

Posted by: Michael Green | Mar 12, 2008 7:36:30 PM

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