Note – no private details are revealed in this article. All contact details have been put pro-actively and prominently into the public domain by their owners.

As a postgraduate law student who has been praised in Parliament for his pro-bono equalities work, and was asked to give evidence to the House of Lords Committee on the Mental Capacity Act 2005, I am frequently asked questions about equalities law. I am loathe to condemn even people whom I disagree with because of the complex and difficult issues they face.

Nonetheless several people this week have asked me for my legal opinion on the TODO Group ‘Open Code of Conduct’ (archive here) and I do feel some excoriation is in order. The TODO Group is a group of companies who “want to collaborate on practices, tools and other ways to run successful and effective open source projects”. They have recently published a Code of Conduct.

The issue that has attracted controversy is the ‘definition of harassment’ written by Github employee Amy Palamoutain. Much of this is unobjectionable, aside from prolixity. For example, the following are examples of behaviour that is prohibited –

“•Threats of violence, both physical and psychological
[…]
•Deliberate intimidation
•Stalking or following”

However, one passage has caused great offense. It says this –

“[…] We will not act on complaints regarding:

• ‘Reverse’ -isms, including ‘reverse racism,’ ‘reverse sexism,’ and ‘cisphobia’”

The language is somewhat vague. ‘Reverse’-isms such as ‘reverse racism’ typically mean discrimination against a majority by members of a minority. In the context of the harassment section where this appears we are presumably talking about racist or otherwise discriminatory harassment.

If interpreted as such, it says that some forms of harassment will not be punished. For example, (say) three white women follow a black woman around a conference calling out, ‘nigger’ that is harassment. However, does this policy mean if three non-white women follow a white woman around calling out ‘white whore’, her complaint will be ignored? Any assumption she is privileged is fatally flawed – what if she is a poorly paid clerk? A sex worker? Why would it be ok if she was privileged anyway?

Is it really ok to ignore racism or harassment complaints from women because of the colour of their skin?

If the poorly worded passage means something else that has yet to be clarified. GitHub’s only reply when I requested comment was an email from their legal department making vague references to ‘actionable’ ‘factual misrepresentations’ – saying that they dispute the facts but not saying which ones. They also objected to my use of the original photos intended for this article, forcing me to harvest photos from Flickr that had been released under Creative Commons licenses.

GitHub’s ‘legal’ email was embarrassingly poor. UK law requires libel claimants to mitigate their losses (Mawdsley v Guardian Newspapers [2002] EWHC 1780 (QB)). By failing to take the opportunity to correct pre-publication they have failed to mitigate 100% of their losses.

UK law requires libel claimants to comply with pre-action rules (like saying which facts you dispute). The penalty for incompliance with the pre-action rules are set out in Webb Resolutions Limited v Waller Needham & Green (a firm) [2012] EWHC 3529 (Ch). The defaulting party has to pay all the non-defaulting party’s costs even if they win the lawsuit. That is why I made a point of delaying publication to give them time to set out the facts disputed and offered to extend that time further. No reply to my offer was received.

Since GitHub wanted this article silenced and were prepared to make poorly veiled legal threats, I ask readers to help unsilence it. Post a link to it everywhere you know – not just KiA but every obscure little political forum, blog, news site – wherever – with a little blurb of your own. Tweet it repeatedly.

Commenting on the pull request that added the ‘reverse-isms’ language (archive here), users asked Palamountain to change it. She said, “This is a critical part of this PR and I will not be removing it […] do some research […] When we claim any reverse-sims, what we are really doing is derailing the conversation. Making it about the privileged again. This is erasure.”

If Ms Palamountain bothered to ‘do some research’ she would find that the ‘privilege’ of no group in the western world extends to a legal right to harass people.

The question I have been asked is, whether the policy is lawful? In the UK or US, if an employer adopted this policy, could they be sued? Well duh. Obviously this is not lawful. The Equality Act 2010 in the UK and Title VII of the Civil Rights Act 1964 in the US both prohibit racist workplace conduct against all persons regardless of race. To do otherwise would be prohibited by (in the EU), Article 13 and 14 of the European Convention on Human Rights and (in the US) by the 14th Amendment to the United States Constitution.

Protection from discrimination includes protection from a ‘hostile working environment’, which again applies in the UK and US. Any company which says it is ok to harass some people can potentially be sued by all of those people regardless of whether they have actually been affected by the policy.

In the UK, s26 of the Equality Act 2010 would apply. Refusing to process an equalities complaint is also ‘Victimisation’ as defined under s27 Equality Act 2010. In addition perpetrators could be guilty of an offence under s2 Protection from Harassment Act 1997. Harassment is a crime. The policy as written by Ms Palamountain explicitly says that criminal conduct of this nature would be ignored in some cases by users of the policy.

Furthermore, not only employees but customers (including online customers and convention attendees) would be entitled to sue (see, for example, s29 Equality Act 2010). Furthermore their customers could be sued if they required any employee to work on the openly racist project. Worse for Ms Palamountain, UK law allows individual Defendants. Every single claimant could sue any individual responsible for discrimination.

Damages for discrimination include a head for ‘hurt feelings’ recognised in a case called, Vento v Chief Constable of West Yorkshire Police [2002] EWCA Civ 1871. The amounts for hurt feelings alone have been increased since the case was first decided and can now run to over £30,000.

Obviously, most racist harassment is directed at minorities. Society needs to recognise that. However, there is no reason to permit harassment of members of the ‘majority’ group. In reality it is often weaker or more vulnerable individuals in the so-called ‘dominant’ group – blatantly non-privileged individuals, who are the victims.

There have been occasional rare lawsuits for discrimination against whites or males. For example in the UK a fireman who was repeatedly subject of malicious harassment complaints was awarded £100,000 because treating someone accused of harassment less favourably due to their sex is sexism. Similar judgements have occurred in the United States.

Of course GitHub itself is unlikely to experience ‘reverse’ racist harassment because of the proportion of minorities it employs. Despite being distributed world-wide there is a certain … commonality of hue … both in their group photo and in the wall of staff pictures on their website page. The only person of African heritage pictured in an avatar appears to be Eddie Murphy, although there is also a white guy in what looks like an afro-wig. There are a few minorities, some unfortunately placed near the bottom.

The problem with Palamountain’s work is that it is not only apparently unlawful if adopted, but that it brings the liberation and equalities movements into disrepute. By crassly enabling obviously wrongful conduct it undermines equalities in much the same way those who falsely allege rape harm real victims. Palamountain should be treated with the same disdain.

Unsurprisingly, concerns about the policy have been raised with the Github team. When a pull request was opened to remove the language objected to (archive here), several people from minorities condemned Palamo’s text. One person, who stated they were a Jewish descendent of refugees, said –

“I am one of the marginalised people this code of conduct is trying to prioritise. Ethically I’m a mixture of German-Jewish, Bulgarian-Jewish, and Polish-Jewish. Two generations ago my family were penniless refugees fleeing prosecution or, well most of them were dead.

This language @MrStonedOne wishes to remove is quite simply saying people are more acceptable as targets because of their their race, religion or sexuality. After how I was raised and what I was taught about my families history, I could never feel comfortable and would never attend any conference that said any group is a more acceptable target; not even a hint in that direction.”

Responding, Brandon Keepers, the ‘Open Source Lead’ at GitHub locked the thread to seek feedback. He appeared to attempt to justify the language objected to by saying, “[…] the moderators of a community are going to have to make tradeoffs” It is unclear to your author what possible ‘tradeoff’ could even begin to justify permitting harassment. If that is not what the text means, it should be changed.

Since then, to his credit, Keepers has locked and ‘paused’ the Open Code of Conduct project. He says, “This template aims to equally protect against all forms of discrimination, and to protect people who are typically the target of harassment in open source” and also, “We are going to take a step back and pause activity on this project for now. We are consulting with stakeholders, community leaders, and legal professionals”.

At the start of this article I said I am loathe to condemn those involved in the equalities movement. Sometimes, however, it is necessary. Amy Palamountain has demonstrated she is a liability both to the movement and, indeed, to her employer. I do not have a problem with Amy Palamountain for her gender – and I condemn the trolls that do. I have a problem with her bigotry.

How can Palamountain be employed now in the technology industry? Even when the policy is inevitably changed or withdrawn, Palamountain will have a tainted reputation. Should she become involved in any dispute or discrimination matter, her past prejudices may be used against her. Internet searches will show up her remarks for years to come undermining her professional credibility.

The Chief Executive of Github is Chris Wanstrath. He publishes his email online on his profile. Github publicly seeks feedback and readers are entitled to give it to them. If you disagree that harassment should ever be tolerated then please say so politely to Mr Wanstrath.

It is likely in the extreme that GitHub does not wish its reputation to be damaged by appearing to say that racism or harassment of any kind should be permitted.

Matthew Hopkins News only reveals private information when there is a legitimate public interest. In this case it is not necessary as Palamountain, Keepers and Wanstrath have all currently or recently prominently published their email addresses.

A draft copy of this article was sent to GitHub pre-publication for comment. Their ‘lawyer’ did not object to publication of these contact details.

Chris Wanstrath (Chief Executive)
@Defunkt (Twitter)
@Defunkt (GitHub)
Chris@github.com

Amy Palamountain
@ammeep (Twitter)
@ammeep (GitHub)
Amy@github.com

Brandon Keepers
@bkeepers (Twitter)
@bkeepers (GitHub)
Bkeepers@github.com