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(The protagonist of this clip, the "bagel guy", went viral recently in someone else's video)

In this Youtube video (now removed, Twitter copy) a cop tells him it's not illegal to harass people, but only as long as it's "non-sexual". Is he right?

  • Asking a (very short) guy "How tall are you?"
  • Asking a woman "How big are your breasts?"
  • Asking an apparently foreign-born man "What country are you from?"

(All featured in the video) Is there a substantial difference in the legality of these actions?

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    I think 2 of 3 of yours are perfectly legal questions, but the middle one can be construed to be inappropriate (honestly why would you ask that of a complete stranger?). Asking a question isn't harassment, it crosses over to that when you repeatedly or forcefully ask the question and the target of the question has made it clear that they do not want to respond. – Ron Beyer Jul 11 at 19:40
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    Since you asked the question, the video has been taken down. – eyeballfrog Jul 11 at 20:32
  • 1
    @eyeballfrog I hope it comes back. It's this guy's own channel. YT probably auto-deleted it because of the comment section. – MaxB Jul 11 at 21:35
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Overview

The cop is basically wrong. Sexual harassment is not the only kind of harassment recognized by U.S. law.

The question and the cop's answer to it, assume that simply asking certain questions is illegal or not illegal, but it isn't that straight forward.

Words communicated verbally are part of the analysis, but not the entire analysis. It all depends upon context and the character of the communication.

None of these questions are per se (i.e. always) illegal to ask in the abstract, although a good lawyer would advise a client that it is rarely prudent to ask them because, together with other facts, they could give rise to civil or criminal liability. In this regard, he is correct that two of the three questions aren't necessarily unlawful, but he is incorrect when he assumes that the third one, which would suggest that there might be sexual harassment present, is always unlawful.

But, any of these three questions could be a part of a pattern of conduct that constitutes illegal harassment, and each of these three questions suggest an intent that one would often expect to be a part of a larger pattern of harassing conduct. So, he is incorrect when he suggests that non-sexual forms of harassment are definitely legal.

Also, there are really at least three kinds of illegal harassment that need to be analyzed separately, one in the context of state and federal laws prohibiting discrimination on the basis of protected classes, one in the context of the common law tort of intentional infliction of emotional distress arising under state law, and the third under a state's general criminal laws.

In addition, certain kinds of harassment can provide a basis for the issuance of a restraining order or protection order under state law.

A particular course of harassing conduct may be governed by only one of these kinds of laws, by some but not all of these kinds of laws, or by all of these kinds of laws, depending upon the nature of the conduct and the laws of the state that are at issue.

In cases where the relevant law is state law, rather than federal law, the applicable laws may, and frequently do, differ in important details from state to state. I describe the most common provisions of state law that apply, using the state of Colorado, which is the primary place where I practice law, for some specific examples. But, while some important details (particularly with regard to criminal liability) differ from state to state, the broad outlines of the relevant state laws are usually fairly similar in the vast majority of U.S. states.

Harassment That Is A Form Of Discrimination

The Nature Of The Liability

One kind, is a subset of discriminatory conduct in the context of a relationship such as employment, or operating a "public accommodation" (such as a restaurant open to the public), or carrying out governmental functions, in which there is a legal duty not to discriminate on a particular basis.

This is implicated in the second and third questions.

In both of these cases, harassment as a form of employment discrimination arises from the same statute.

Neither that statute nor regulations interpreting it, at the time that sexual harassment claims were first recognized by the courts, specifically delineate an offense of sexual harassment or other kinds of harassment separate and distinct from employment discrimination generally.

Subsequently, the case law, regulations interpreting the statute promulgated by the EEOC, and to a less extent some statutes (especially at the state and local level), have spelled out sexual harassment as a distinct type of discrimination on the basis of sex in employment with its own set of specific legal elements of the claim that must be established which differ somewhat from other employment discrimination claims.

Why Isn't This A Free Speech Violation?

One of the reasons that this can be prohibited, notwithstanding the First Amendment to the United States Constitution, is that in the employment and public accommodations cases, this involves commercial speech, the regulation of which is subject to less rigorous review than non-commercial speech, as a matter of United States constitutional law.

In the case of governmental speech, this regulation is directly authorized (and arguably required) by the 14th Amendment requiring government to provide people with equal protection of the laws, which was enacted after the First Amendment. Also the First Amendment generally limits the power of government to regulate the speech of others, not its own speech.

Discrimination On The Basis Of Sex

In the context of an employer-employee relationship, a man (or woman) asking a woman "How big are your breasts?", could be interpreted as sexual harassment, which is a kind of employment discrimination on the prohibited basis of sex, and if violated, gives rise to the right of the EEOC or the woman to whom the question is directed, and possibly even to the all of the women in that workplace to bring a civil action for employment discrimination seeking money damages. While the expectation is that this sort of harassment happens from superior to subordinate that is not necessarily the case and it can occur between peers or from subordinate to superior.

The U.S. Equal Employment Opportunity Commission (the EEOC) defines sexual harassment as follows:

Sexual Harassment

It is unlawful to harass a person (an applicant or employee) because of that person’s sex. Harassment can include “sexual harassment” or unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature.

Harassment does not have to be of a sexual nature, however, and can include offensive remarks about a person’s sex. For example, it is illegal to harass a woman by making offensive comments about women in general.

Both victim and the harasser can be either a woman or a man, and the victim and harasser can be the same sex.

Although the law doesn’t prohibit simple teasing, offhand comments, or isolated incidents that are not very serious, harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted).

The harasser can be the victim's supervisor, a supervisor in another area, a co-worker, or someone who is not an employee of the employer, such as a client or customer.

Discrimination On The Basis Of National Origin

Similarly, in the context of an employer or prospective employer asking an employee or prospective employee who is apparently a foreign-born man, "What country are you from?", this could be interpreted as evidence of employment discrimination on the prohibited basis of national origin, which, if it was occurring could give rise to the right of the EEOC or the man to whom the question is directed, and possibly even to the all of the foreign born people in that workplace to bring a civil action for employment discrimination seeking money damages.

General Considerations Regarding Harassment As A Form Of Discrimination

In each of these cases, the damages could be related to the direct economic harm associated with not being hired or promoted, for example, or could arise from the largely non-economic harm suffered from harassing conduct itself.

Also, in each of these cases, simply asking the question is not harassment. The asking of the question must be part of a pattern of conduct that together has the effect of constituting harassment taken as a whole, and must involve some sort of improper motive on the part of the employer.

An employer asking "how big are your breasts?" for purpose of ordering uniforms for a woman isn't engaged in harassment, nor is an employer asking "what country are you from?" for the purpose of determining if the employee has knowledge that would allow the employer to better serve a customer in a particular country.

Harassment as a form of employment discrimination is not generally a crime, it is merely tortious conduct prohibited by law.

Intentional Infliction Of Emotional Distress

The Common Law Tort

Courts in the United States have the power to established when conduct gives rise to a claim for money damages against another person which is developed through case law precedents extending back for centuries into the laws of England, so long as this is not in conflict with a statute. One such claim that is recognize by U.S. courts in most states is a tort (i.e. civil wrong) known as "intentional infliction of emotional distress."

In the case of asking a (very short) guy "How tall are you?", except to the extent that the short statute was such that it amounted to a disability protected by the Americans With Disabilities Act (ADA) (which would be unusual but not inconceivable), this would not be a protected class and so it could not constitute harassment in the sense of a subtype of employment discrimination.

But, that is not the end of the analysis in the case of the short employee. The law also recognizes a tort (i.e. a right to sue someone for a civil wrong) that is sometimes called "intentional infliction of emotional distress" and sometimes called "outrageous conduct" that is not infrequently invoked in an employer-employee context. Wikipedia at the link above summarizes this tort as follows:

Intentional infliction of emotional distress (IIED; sometimes called the tort of outrage) is a common law tort that allows individuals to recover for severe emotional distress caused by another individual who intentionally or recklessly inflicted emotional distress by behaving in an "extreme and outrageous" way. Some courts and commentators have substituted mental for emotional, but the tort is the same.

In the United States, the common law tort most often tracks the language of the Restatement of Torts (Second) Section 46 (1965), which states:

One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.

This tort cannot, however, be used to shut down offensive statements and parodies. Per the same Wikipedia entry:

The U.S. Supreme Court case Hustler v. Falwell involved an IIED claim brought by the evangelist Jerry Falwell against the publisher of Hustler Magazine for a parody ad that described Falwell as having lost his virginity to his mother in an outhouse. The Court ruled that the First Amendment protected such parodies of public figures from civil liability.

Unlike harassment as a form of discrimination, this tort is not limited to any particular protected class of persons, or to a particular specified kind of relationship between the perpetrator and the victim.

But, the threshold of conduct which qualifies as "extreme and outrageous" needs to be both much more egregious and much more directly targeted at a particular individual. Basically, the conduct complained of must amount to either effective bullying, or to a malicious prank (there is considerable overlap between these kinds of conduct).

An Example Of Conduct Held To Be Actionable Outrageous Conduct

An example of conduct that was held sufficiently extreme and outrageous to give rise to tort liability if established at trial was this case:

In January 1978, Zalnis contracted with defendant Thoroughbred Datsun for the purchase of a 1978 Datsun automobile. She took possession of the car on that day, and paid the balance of the purchase price two days later. Zalnis dealt directly with Linnie Cade, a salesperson employed by Thoroughbred Datsun. Defendant Trosper, President of Thoroughbred Datsun, approved the transaction based on representations by Cade which were later determined to be based upon erroneous calculations. When Trosper discovered several days later that Cade had sold the car at a loss of approximately $1,000, he instructed Cade and the sales manager to make good the loss by either demanding more money from Zalnis, retrieving the car, or repaying the difference out of Cade's salary. Cade refused to follow any of Trosper's alternative instructions, but another sales employee, defendant Anthony, telephoned Zalnis and told her to return her car to the dealership because it was being recalled. When Zalnis arrived at Thoroughbred Datsun, she refused to give up possession of her car without a work order explaining the need for the recall. Nevertheless, her car was taken from her. During the next few hours, Zalnis alleges that Anthony called her a “French whore,” followed her throughout the showroom, told her they were keeping her automobile, yelled, screamed, used abusive language, grabbed her by the arm in a threatening manner, and continually threatened and intimidated her when she attempted to secure the return of her automobile by telling her to “shut up.”

During this period, Zalnis telephoned her attorney, who then telephoned Trosper and eventually obtained the return of her car. During their conversation, Trosper told the attorney that Zalnis had “been sleeping with that nigger salesman and that's the only reason she got the deal she got.” Trosper had known Zalnis for many years, and had told Cade and the sales manager that she was crazy and she had watched her husband kill himself.

Zalnis v. Thoroughbred Datsun Car Co., 645 P.2d 292, 293 (Colo. App. 1982).

The analysis that lead the Court to reach this conclusion was as follows (most citations omitted):

The defendants argue that their actions here were no more than “mere insults, indignities, threats, annoyances, petty oppressions, and other trivialities.” However, the defendants did not merely threaten and insult Zalnis; they took away her car and repeatedly harassed her. Conduct, otherwise permissible, may become extreme and outrageous if it is an abuse by the actor of a position in which he has actual or apparent authority over the other, or the power to affect the other's interests.

The conduct here is not a mere insistence on rights in a permissible manner. Rather, the defendants' recall of the car was to avoid a bad bargain, and accordingly, the conduct was not privileged. [S]ee Enright v. Groves, 39 Colo.App. 39, 560 P.2d 851 (1977).

Defendants assert that their actions must be judged by the impact they would have on an ordinary person with ordinary sensibilities. We disagree. The outrageous character of the conduct may arise from the actor's knowledge that the other is peculiarly susceptible to emotional distress by reason of some physical or mental condition or peculiarity. In Enright, supra, outrageous conduct was found where a police officer effecting an illegal arrest grabbed and twisted the plaintiff's arm even after she told him her arm was easily dislocated. In the instant case, plaintiff was peculiarly susceptible to emotional distress because she had witnessed her husband's suicide, and Trosper and Anthony knew about her susceptibility. Here, as in Enright, the defendants' knowledge exacerbated the conduct.

There is outrageous conduct where the actor desires to inflict severe emotional distress or knows that such distress is certain or substantially certain. Here, Zalnis has sufficiently alleged that Trosper and Anthony acted with the intent to bully her into giving up her car. In view of their knowledge of her emotional susceptibility, they could be considered to have acted intentionally or recklessly in causing her severe emotional distress.

The defendants argue that we should observe a distinction between a single outrageous occurrence and an outrageous course of conduct. While it is true that “the courts are more likely to find outrageous conduct in a series of incidents or a ‘course of conduct’ than in a single incident,” it is the totality of conduct that must be evaluated to determine whether outrageous conduct has occurred.

Zalnis v. Thoroughbred Datsun Car Co., 645 P.2d 292, 294 (Colo. App. 1982)

Harassment That Is Criminal Conduct

General Considerations

Another form of harassment is harassment that constitutes criminal conduct.

In these cases, the existence or absence of protected class status is irrelevant (or only goes to the sentence that is appropriate for a violation, rather than guilt or innocence), and the formal character of the relationship between the people (e.g. as employer-employee, merchant-customer, government employee-citizen) is secondary.

Instead, in these cases, the existence or absence of harassment hinges on the character and subtextual message of the question in the context of the larger interaction.

Exactly what is defined to be criminal harassment varies from state to state, but the key point is that the subtext of the message must either be (1) something that is outright prohibited, for example, when the superficially non-threatening question, in light of the tone used, body language, and the physical context where it takes place is an implied threat to harm someone, or (2) must be part of an overall context of conduct including the question, and a manner of communication which is calculated to distress, annoy, or disturb a person, to an extent that exceeds communication of an idea they may be inherently distressing in a civil, calm and non-combative manner, and would in fact disturb a reasonable person.

In the latter case signs that it may be criminal harassment include yelling at a person, bombarding them over and over again with the statement in a way that it can't be avoided verging upon stalking, and being part of a large context of discussion showing specific animus against the individual target of the communication.

The Example Of Colorado's Criminal Harassment Statute

For example, Colorado's criminal harassment statute reads as follows:

(1) A person commits harassment if, with intent to harass, annoy, or alarm another person, he or she:

(a) Strikes, shoves, kicks, or otherwise touches a person or subjects him to physical contact; or

(b) In a public place directs obscene language or makes an obscene gesture to or at another person; or

(c) Follows a person in or about a public place; or

(e) Directly or indirectly initiates communication with a person or directs language toward another person, anonymously or otherwise, by telephone, telephone network, data network, text message, instant message, computer, computer network, computer system, or other interactive electronic medium in a manner intended to harass or threaten bodily injury or property damage, or makes any comment, request, suggestion, or proposal by telephone, computer, computer network, computer system, or other interactive electronic medium that is obscene; or

(f) Makes a telephone call or causes a telephone to ring repeatedly, whether or not a conversation ensues, with no purpose of legitimate conversation; or

(g) Makes repeated communications at inconvenient hours that invade the privacy of another and interfere in the use and enjoyment of another's home or private residence or other private property; or

(h) Repeatedly insults, taunts, challenges, or makes communications in offensively coarse language to, another in a manner likely to provoke a violent or disorderly response.

(1.5) As used in this section, unless the context otherwise requires, “obscene” means a patently offensive description of ultimate sexual acts or solicitation to commit ultimate sexual acts, whether or not said ultimate sexual acts are normal or perverted, actual or simulated, including masturbation, cunnilingus, fellatio, anilingus, or excretory functions.

(2) Harassment pursuant to subsection (1) of this section is a class 3 misdemeanor; except that harassment is a class 1 misdemeanor if the offender commits harassment pursuant to subsection (1) of this section with the intent to intimidate or harass another person because of that person's actual or perceived race; color; religion; ancestry; national origin; physical or mental disability, as defined in section 18-9-121(5)(a); or sexual orientation, as defined in section 18-9-121(5)(b).

(3) Any act prohibited by paragraph (e) of subsection (1) of this section may be deemed to have occurred or to have been committed at the place at which the telephone call, electronic mail, or other electronic communication was either made or received....

(7) Paragraph (e) of subsection (1) of this section shall be known and may be cited as “Kiana Arellano's Law”.

(8) This section is not intended to infringe upon any right guaranteed to any person by the first amendment to the United States constitution or to prevent the expression of any religious, political, or philosophical views.

Colorado Revised Statutes § 18-9-111 (emphasis added).

The case of the harassment of Kiana Arellano, after whom the statute was named, is discussed in an article in the Denver Post, and sheds some light on the kind of conduct that legislators where attempting to punish when they passed the law. It was a case of severe cyber bullying that caused this person to attempt to commit suicide.

Restraining Orders And Protection Orders

Both tort remedies and criminal sanctions for harassment punish a perpetrator and/or compensate a victim of harassment after it has happened.

In many case, the law also allows a court to enter orders known as restraining orders or protection orders directing someone who has engaged in harassing conduct to cease doing so.

States differ considerably in defining exactly what kinds of harassing conduct can provide a basis for entry of a restraining order or protection order against an individual directing that person to cease having contact with or harassing the individual protected by the order.

The most common fact patterns in which restraining orders or protection orders are entered for harassment (which is not the only kind of conduct that can provide basis for an order like that) involve (1) a former romantic partner harassing his or her ex, (2) a person who had engaged in elder abuse harassing the elderly person who had been abused, (3) a criminal defendant harassing potential witnesses in a case, and (4) a "fan" (often, in part, because they don't really understand the difference between entertainment performances and reality), or a "hater" (often, as part of a larger political agenda intended to bully opponents into compliance) harassing a celebrity, politician, or adult entertainer.

Harassment that justifies issuance of a restraining order or protection order, like the harassment that can justify a common law intentional infliction of emotional distress claim, must typically be very extreme and pose an imminent threat to the protected person's safety, emotional well being, the judicial process, or the ability of the protected person to live an ordinary daily life. There must also generally be some reasons to think that the harassing conduct will continue if the court does not act.

As in the case of other legal remedies for harassment, harassment in a restraining order or protective order context usually involves consideration of the context of a pattern of conduct over time, even though it can be based on a single very extreme incident.

Every state provides that someone who violates a court order like this one may be held in contempt of court, which can result in incarceration or a fine, after a hearing is held in which someone (usually the victim's attorney) acts as prosecutor against the person who violated the order in a quasi-criminal proceeding within the main civil or criminal lawsuit in which the order was obtained.

Some states make violation of a court order like this one a criminal offense as well, that can be enforced by law enforcement prior to a hearing if there is probable cause to believe that it was violated.

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