In affirming a jury verdict in a sexual harassment case (though he grants the defendant a new trial if the prevailing plaintiff is unwilling to accept a much smaller punitive damages award than the jury accorded her), he wrote:
Penters had a history of making sexist remarks to Lust, such as “oh, isn’t that just like a woman to say something like that,” or “you’re being a blonde again today,” or “it’s a blonde thing.” (Lust is blonde; Sealy points out irrelevantly that blondes are not a statutorily protected class, which will disappoint hair colorists.)
… [and] …
Another boomerang argument by Sealy is that the staff at Bedding Experts:the key account that Lust would have managed had she been given the Chicago position:consisted of foul-mouthed animals. There had been an incident several years earlier, with a different account, at which Lust’s effort to divert a customer from talking about his sexual activities with his ex-wife and about the strip bar that he owned so enraged the customer that he rolled up the agenda of their meeting and threw it at her, whereupon she left and the account was given to another sales rep, a man. One possible inference is that Lust is too prissy for Sealy’s roughest customers. But another is that Sealy merely assumes that women can’t deal with foul-talking men; and that is an impermissible assumption, another example of stereotypical thinking. No doubt more women than men would have trouble bonding with macho mattress dealers, but there are tough women (women now fly combat missions for the Air Force), and maybe Lust, who is at least brave enough to go by her husband’s last name, is one of them, notwithstanding the incident with the strip-bar owner:and his behavior was so egregious that it is merely a conjecture that a male Sealy rep could have pacified him, or that Lust’s male successor on the account did so. Penters or Boulden could have explained to Lust the character of the Bedding Experts staff and probed her ability to handle such people. Instead they merely assumed that she could not. They would not have assumed that about a man, even a man who had walked out of a customer’s office when the customer pelted him:or so at least a reasonable jury could find.
Answer here.
Posner?
This reminds me of another one of Posner’s greatest hits, American Nurses Ass’n v. Illinois, where he concludes essentially that the laws of economics make it impossible to discriminate against women by underpaying them, though it is possible to discriminate against women by overpaying men (without addressing why an employer would ever do that):
If Illinois is overpaying men relative to women, this must mean : unless the market model is entirely inapplicable to labor markets : that it is paying women at least their market wage (and therefore men more), for women wouldn’t work for less than they could get in the market; and if so the state must also be refusing to hire women in the men’s jobs, for above-market wages in those jobs would be a magnet drawing the women from their lower-paying jobs. Maybe the references in the complaint to the segregation of jobs by sex are meant to allege such refusals but if not this pleading omission would not be critical. A plaintiff does not have to plead evidence. If these plaintiffs admitted or the defendants proved that there was no steering or other method of segregating jobs by sex, the plaintiffs’ theory of discrimination might be incoherent, and fail. But a complaint does not fail to state a claim merely because it does not set forth a complete and convincing picture of the alleged wrongdoing. So the plaintiffs do not have to allege steering even if it is in some sense implicit in their claim.
I’m actually quite sympathetic to law and economics and (though I know some disagree) believe L&E is consistent with feminism, but this is just utter nonsense.
Thanks for your excellent comment, sorry for the delay in getting it posted. Posner’s views about women are incredible, aren’t they? Who could forget “Sex and Reason”? Not me, unfortunately, though oh how I’ve tried!
With respect to the intersection of feminism and law and economics, I found this article quite interesting, maybe you have already read it: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=846606
Thanks, Ann. I haven’t read it, but I’m looking forward to doing so.
Longtime reader here. Not sure if you have time, A. Bartow, to clarify the sexist nature of Posner’s opinion in the Sealy case, but if you do, I could use some help determining what was prejudiced in said case.
Was the bold type the most egregious?
I’m not sure I entirely understand your question, “schweitzer.” My frustration is with the way Posner mocks the plaintiff, which is unnecessary and to my way of thinking, inappropriate. Did his apparent derisive contempt for the plaintiff motivate him to reduce her punitive damages award? Hard to say.