The Law & Society Association has rolled out a new Anti-Discrimination and Anti-Harassment Policy here. It is accompanied by an "explanatory memo" that is unusual in many respects. The memo refers to the "law and society scholarship" (some of which is written by the Task Force Members, 'natch) that forms the basis for its policy. Bibliography included. Cool. The memo also defends the all-UC Berkeley composition of the LSA Taskforce on Discrimination and Harassment ("because time was short and Berkeley happened to have a lively group of work law scholars who could work together to craft the policy").
Here are three important passages from the new policy:
3. What is Discrimination?
Discrimination includes unequal treatment of participants on the basis of actual or perceived sex, gender, gender identity, race, ethnicity, sexual orientation, disability, socioeconomic status, age, religion, national origin, citizenship status, criminal record, or veteran status, or their intersection. Discrimination also includes actions or comments that have an unequal effect on participants on the basis of actual or perceived sex, gender, gender identity, race, ethnicity, sexual orientation, disability, socioeconomic status, age, religion, national origin, legal status, criminal record, or veteran status, or their intersection. Discrimination also includes harassment, as defined below, on the basis of actual or perceived sex, gender, gender identity, race, ethnicity, sexual orientation, disability, socioeconomic status, age, religion, national origin, citizenship status, criminal record, veteran status, or their intersection.
4. What is Harassment?
Harassment includes all actions or comments that are reasonably experienced as intimidating, harassing, abusive, derogatory, demeaning, or consistently marginalizing. Harassment also includes unwanted touching, harassing photography or recording, sustained disruption of talks or other events, and the real or implied threat of physical harm. Harassment is uniquely harmful when actions or comments are related to actual or perceived sex, gender identity, race, ethnicity, sexual orientation, disability, socioeconomic status, age, religion, national origin, legal status, criminal record, veteran status, or their intersection. Harassment based on gender, which has the effect of making someone feel demeaned or marking them as different in a negative way on the basis of their gender can constitute discrimination because of sex, and can but need not also include sexual harassment as defined below.
5. What is Sexual Harassment?
Sexual harassment is a form of harassment. Sexual harassment includes severe or pervasive unwelcome solicitation of physical or emotional intimacy or touching, as well as severe or pervasive commentary or nonverbal conduct that is sexual in nature, regardless of the gender of the complainant. To be sexual harassment, the harassment need not involve sexual desire.
I. Have. So. Many. Questions. Don't get me wrong. I love the Law & Society Association. I have been attending meetings since 1995 -- before I graduated from law school. Every single Law & Society meeting I have been to has been excellent.
Before commenting on the substance of the new policy, I will say I am disappointed. Any process that involves a committee of hand-selected "volunteers," no open call for participation (at least that I saw), no comment period, and members who are all affiliated with the same institution will produce a policy or document that is different than the one a committee would produce if...well, selected differently and comprised of folks with different institutional affiliations.
Procedurally speaking, I don't find "time was short" justification especially convincing. I've been on some national and international committees that have been darn productive in very short periods of time. Many of us are lawyers; many of us are willing and able to work with tight deadlines (ok, not all the time; my syllabus for the fall isn't ready yet...when do I have to post it?). But to hand-pick a committee of people from the same school almost guarantees that the work product will have predictable blindspots.
That being said, I'm not saying that I should have been on the Task Force. Discrimination and harassment are not my areas of scholarly expertise. But these fields are the areas of expertise -- scholarly and lived -- of dozens of colleagues whose email addresses I know well off the top of my head. (Is that any better than Mitt Romney's "binders and binders full of women"? Probably not.)
Law & Society Association, I love you, but we can do better.
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