I should start this by saying that this post is shaped by the way law school has changed the way I assess things, but it is in no way an attempt to examine or comment on the legal issues surrounding the whole incident. There are lots of those, and there's a good chance they'll keep several attorneys employed for quite a few billable hours. I'm not qualified to even begin looking at the real legal issues, so I'm going to confine myself to the bigger picture questions. (And, frankly, after I spend all day in the casebooks, the bigger picture questions are more relaxing.)
I've been in a
cave classroom lately, so I managed to largely miss the whole "Donglegate" thing. I caught it when it initially happened, naively assumed that everything was over within a couple of days, and forgot about it. Someone mentioned it today, and I was stunned by how much happened in the story while I wasn't paying attention.
For those of you who are unfamiliar with the story, here's the nutshell version, shamelessly cribbed from Janet's blog:
Adria Richards attend[ed] PyCon, notif[ied] the conference staff about attendees behind her telling jokes during a conference presentation (about, among other things, making the coding community more welcoming for women and girls). Richards felt the jokes were sexualized enough to harm the environment of the conference. PyCon had a Code of Conduct for the conference that encompassed this kind of issue. In a room with hundreds of attendees, in a context where she hoped this harm to the conference community would be dealt with rather than let go (which gives it tacit approval) but where she also didn't want to disrupt the presentations underway, Richards took a picture of the men telling the sexualized jokes and tweeted it with the conference hashtag to get the conference staff to deal with the situation.
The conference staff addressed the issue with the men telling the jokes. Subsequently, one of them was fired by his employer, although it's in no way clear that he was fired on account of this incident (or even if this incident had anything to do with the firing); Adria Richards started receiving an avalanche of threats (death threats, rape threats, we-know-where-you-live threats, you-should-kill-yourself threats); Adria Richards' employer fired her; and PyCon started tweaking its Code of Conduct (although as far as I can tell, the tweaking may still be ongoing) to explicitly identify "public shaming" as harmful to the PyCon community and thus not allowed.
I wasn't kidding when I said that law school has changed the way that I approach issues. Much of getting through law school (if not much of the practice of law) involves looking at broad sets of facts and finding the narrow issues hidden within them. When you do that enough - and I've done it a lot over the last eight months - that kind of thing starts to bleed through into other areas of life. That's not a bad thing, necessarily, as long as it doesn't make you lose sight of the big picture. (I'm not sure how well I'm doing there, but I'm trying.)
One of the places where I've found the issue spotting approach to be very helpful is in looking at complex situations that seem to involve situations that are in the grey area. In many cases, the big picture really is pretty damn grey. Looking for and at the individual issues can help us find the individual black and white pixels that make up the grey image.
To a certain extent, we tend to naturally find and focus on limited issues without really looking at them. That's why, for some people, "the" Adria Richards issue is the appropriateness of public shaming. For others, it is the appropriateness of sexual innuendo in a private conversation that is taking place in a public, professional setting, and where it is likely to be overheard. For still others, it's about the importance of creating a welcoming environment in a profession that has historically (and currently) left certain groups underrepresented. The Adria Richards issue is collegiality. And it's chilling dissent and creating a hostile environment. And proportionality. And...
In this case, the whole great grey picture becomes especially contentious because different people place different values on different pixels. In some cases, there is tension between the issues, and difficulty in striking a balance between them. And, here, few of the issues I just mentioned are - in isolation - frivolous. They might not be able to stake a good claim as the most important, or even as important enough to risk distracting from some of the others, but that doesn't make them objectively unimportant.
The trick really comes in trying to look at all of the issues, and trying to untangle them from each other as far as possible. I'm a slow learner, and I like sticking my finger in electric sockets, so I'm going to try to do just that. (Or, at least, start the process.)
Let's start with the conduct on the part of the male attendees sitting behind Ms. Richards. And let's try to hunt for a really discrete issue that will help us look at their overall role in the situation.
1: The reasonableness of the joke:
I don't think it's reasonable to start that process, as some have, by looking at the subjective impact of the statements on Richards. We can (and should) take it as given that Richards was offended by what she heard, and enough so that she thought it was important to speak up about it. She was, to whatever extent, emotionally distressed by what she heard.
Let's look, instead, on whether the conduct in question was objectively reasonable under the circumstances. This is a broadly tort-law-type approach to the situation, but, again, not an analysis of the legal rights of the parties.
Generally speaking, I hope most of us would agree that not being an asshole is, in most circumstances, a good thing. We might not suffer any legal liability for being jerks to each other, but that doesn't mean that we should suffer no consequences when we cause offense. Reasonable people, in general, try to avoid unnecessarily causing offense. This is even more important in a professional setting, and especially when we can easily be identified as employees of a specific company. Your boss probably has the right to reasonably expect you to try to refrain from embarrassing the company in public.
In short (too late), the two employees probably had a duty to refrain from unnecessarily causing offense to those around them.
Did their acts violate that duty? We know that Richards heard them, and that she took offense. But could they reasonably expect (1) that she might hear them; and (2) that she might take offense? I think so, on both counts. Most of us have been to conferences. Most of us have spent time waiting on speakers and presentations, and most of us have heard parts of conversations happening around her. These guys had no reason to expect that their conversation wouldn't be heard by strangers around them, and every reason to expect that it might. Most of us also know that even if we are not offended by sexual innuendo, but most of us know that there is a not-insubstantial group of people who are. Again, I don't think it was unreasonable to expect the jokers to know this. If they didn't, they should have.
The bottom line is that the conduct of the jokers was objectively unreasonable. Reasonable people try to refrain from unnecessarily offending those around them, reasonable people know that there is not a global shortage of people who find sexual innuendo offensive, and reasonable people know or should know that, in a conference ballroom, there's a reasonable possibility that one or more of those people will overhear you if you are speaking in a normal conversational tone.
Their conduct remains unreasonable even if you believe they are under absolutely no obligation of any kind to ever think about the importance of creating a welcoming environment for women within their profession.
2: The reasonableness of firing the joker.
Honestly, I really don't see a huge issue here at all. The joker was at a conference, and engaged in objectively unreasonable behavior. This resulted in a private scolding by conference staff and public embarrassment caused by the person offended by the unreasonable behavior. In general, the employer has a reasonable right to expect that the employee will not embarrass the employer publicly at a function where the employee in question is on the job. Firing might not have been the most appropriate response, and it certainly wasn't the most charitable, but I don't think it was clearly unreasonable.
3: The importance of creating a welcoming and diverse environment in non-diverse professions, and the question of a generalized duty to be conscious of issues of diversity.
I personally think that it is very important to be conscious of issues of diversity even though I frequently fail to be as conscious of those issues as I should be. I think that it's part of the overall moral obligation to not be a jerk, and I think that a lack of diverse views creates avoidable harm.
That said, this is a contentious issue. It's also one that I think is actually separable from most of the rest of this issue. The overall policy goals of creating a welcoming environment, and the importance of those goals, are not relevant to figuring out if the jokers screwed up. Diversity in computer science could be the least important conceivable subject, and they still would have unnecessarily and avoidably caused offense to another person, in a professional setting, when they should have known better. It matters somewhat when we're talking about the appropriateness of the overall response, but even there it's probably not critical that we resolve the issue entirely, provided that we acknowledge that there are people who think that the issue is important, and they are not unreasonable to think that.
4: The reasonableness of Richards on-the-spot tweet:
Again, this is not something that I view as a very difficult issue. There is a broad moral duty to refrain from causing unnecessary offense, and the jokers failed to live up to that duty. Richards was offended, and, given her views on the overall importance of creating a welcoming environment, felt that a more official response than just personally scolding them was called for. The actions were a breach of the overall code of ethics for the conference, she was well within her rights to call the matter to the attention of the organizers, and the method she used to do so was not clearly unreasonable. It might not have been the best possible choice, or the most charitable, but, again, that's not enough to make it unreasonable.
It might have been nice for Richards to handle the matter privately, but she was not under an obligation to do so. You might not be an active crusader for diversity and openness, but it is not unreasonable for other people to be very involved in that area.
Her actions might have caused emotional distress in the jokers, but that was a consequence of their initial actions, not her response. She has the same moral duty to avoid inadvertently causing unnecessary emotional distress as they do, but "inadvertent" and "unnecessary" are parts of that equation. She does not have to refrain from seeking reasonable redress for her injuries simply because the injurers might get their feelings hurt in the process.
5: The reasonableness of her subsequent blog post.
This one is more difficult for me, because I think "inadvertent" and "unnecessary" are coming into play here. This is one of those issues that really might contain some grey, so let's try to break it down more.
I don't think the post itself was unreasonable. Richards clearly felt strongly about the overall issue, clearly wanted to bring attention to the overall issues of inclusion within the computer sciences, and was drawing on recent personal experience to do so. If that's unreasonable, bloggers everywhere are in big trouble.
The issue, if any, is her presenting the specific offenders in a way that made them personally identifiable - with their picture. This is where things get more difficult. The jokers behaved unreasonably because they had a moral and societal duty to refrain from inadvertently and unnecessarily inflicting emotional distress on those around them. That is a general "be a good person" kind of duty, and it applies to everyone. A reasonable person would be distressed to be outed as a sexist, racist, or just plain jerk in public. The issue here is probably just "unnecessary."
On balance, I tend to think that it was not unreasonable for Richards to post the pictures on her blog, but I think it's a much closer call than most of the other issues I've discussed so far. Richards could have made the same point without the picture, but the picture probably did strengthen the point. It personalized it more (at least 1000 words worth more) than the text description of the event. It rammed home the point that this was not fiction, and that the unreasonable behavior was coming from ordinary, outwardly respectable members of the community, acting largely in ignorance. At the same time, the jokers had behaved unreasonably and inappropriately, and in a way that hindered the overall inclusion Richards felt was important.
The picture is unnecessary in the sense that Richards could have made the same broad point without the image. It was necessary in that it provided important context. Given that these jokers were not randomly singled out for criticism, had behaved unreasonably, the post was an attempt to draw attention to the prevalence of that sort of misconduct, and the rest of the circumstances, it probably was not unreasonable to post the picture. It wasn't actively kind, but I don't think that Richards had a moral obligation to refrain from causing the jokers distress under the circumstances.
6: The reasonableness of Richards' response, as a whole, given her own prior anatomical jokes.
This one is tougher still. Janet makes the (valid) point that it is entirely unreasonable to expect perfection from people who identify problematic behavior. I agree completely, but I still don't find that to be a satisfying answer to the overall issue, due to the specific circumstances here.
Just to be clear, these are the facts that I consider to be most relevant when looking at this isolated point: (1) the joke that offended Richards was not directed at her; (2) the offensive conduct involved jokes about "forking" and "big dongles;" (3) the joke took place in the professional environment of a tech conference; (4) Richards had, prior to this, made a joke about stuffing socks in the crotch of pants prior to a TSA inspection to freak out the inspectors; (5) on Twitter; (6) using a Twitter account that is linked with her overall professional image as a tech evangelist.
There are obvious and significant similarities between "big dongle" and a sock-stuffed crotch. Both Twitter and the conference are public arenas. The connection between Richards Twitter account and her professional image is more tenuous, but not at all absent. From where I sit, it's very hard to look at the specific joke Richards made without seeing a lot of specific similarities between that joke and the joke she was offended by. This is not an issue of a sinner casting the first stone. It's closer to a glass house problem.
Of course, none of this changes the analysis of any of the preceding issues. The jokers were unreasonable, her response was not unreasonable, the broad issues are real. I guess what I'm getting at is this: making a joke with references to the male anatomy in the past, in a different but public forum, does not make her reaction unreasonable or the conduct of the jokers reasonable. It does not make her wrong, and it definitely does not make them right. But it does make her actions feel, on a gut level, distinctly less equitable.
7: The reasonableness of Richards being fired.
Firing her looks awful. It walks like she is being punished for legitimately taking a stand against behavior that was clearly unreasonable. It talks like she is being punished for legitimately taking a stand against behavior that was clearly unreasonable. This is probably not a chicken.
This also seems to reward the people who have drastically and abominably reacted to her role in this situation. It should - and sadly doesn't - go without saying that death threats, rape threats, openly misogynistic comments, vicious personal attacks on her as a person, threats to her employer, DDOS attacks on her employer, and other such immoral, illegal, and unethical behavior are always wrong. This would be true even if I'm wrong about everything else I've said in this post. Firing her might get her employer out of a jam, but the cost to all of us when we reward that sort of behavior is huge.
While Richards actions were not unreasonable, I think there are reasonable arguments to be made that she did not take the fairest course of action given all the circumstances. I don't think those arguments can rise to a level that made her firing reasonable.
I know there are other issues out there, but I think I've gone far enough toward trying to approach issues individually.
The overall point that I'm trying to make is this: focusing on any one of those issues, rather than trying to at least examine all of them, makes it easy to miss the trees for the forest. And yes, I did just say it ass-backward from the way the phrase is normally used. It can be just as bad to miss the trees as it is to miss the forest. They're all important.
My gut reaction, on learning about Richards' sock joke, was that it was a pretty jerky thing for her to make a big deal about others doing something broadly similar to something she had done herself. After breaking the issues down, that still doesn't make me feel wonderful about her, but it does remind me that this is one of many individual issues making up this whole broad situation. All (or almost all) of the other issues make her actions look much, much more reasonable. Focusing strictly on the single point about Richards own joke makes it easy to miss that, and obscures the unreasonable and harmful behavior of the jokers.