Anti-abortion exhibit as sexual harassment?

[Michael McConnell]

Abstracting from the particular example that lurid pictures of abortions
constitute sexual harassment (which is absurd), I would like to hear some
discussion on what makes particular speech sexual harassment. As Margo
Schlanger says, the issue is not whether it is sexual, but whether it
creastes a severe hostile environment for women on account of their gender.
Can we explore what this means?

(1) I suppose the easy case is where the speech is overtly hostile to the
presence of women in the workplace. I do not know how many cases relate to
this, but my untutored impression is: not many.

(2) The next strongest case would seem to be speech that is targetted at
someone *because of* their gender. That obviously involves discrimination of
a sort.

(3) Beyond that, what counts? Take the example of sexual humor, which seems
to be a part of a number of cases. (For example, when I took my new job at
my current employer, I was required to watch a film on harassment, which
features two dramatic situations, one of which involved sexual banter, which
was engaged in by two men and a women, and was deemed objectionable by a new
worker, a female.) Assume that the motivation for the speech is to be funny,
and that the speaker would tell the jokes whether or not women are present.
Is the theory here that sexual humor has a disparate impact on women -- that
as an empirical matter more women than men find it offensive? Is that
sufficient? Can that be right, as a legal matter? Or is the theory based not
on women's differential responses to sexual humor (if true) but on an
analysis of the social meaning (whatever that means) of sexual humor? If the
latter, who is the judge of social meaning? How can the courts issue
authoritative determinations of social meaning of disputed texts? And why is
sexual humor thought to have a social meaning hostile to women, given that
both women and men engage in sexual relations? Does sexual harassment law
rest on an underlying assumption that sex is something done by men to women?
I had been under the impression that this assumption is now deemed to be
sexist.

Michael W. McConnell
University of Utah College of Law
332 S. 1400 East Room 102
Salt Lake City, UT 84112


-----Original Message-----
From: Margo Schlanger [mailto:mschlang at LAW.HARVARD.EDU]
Sent: Wednesday, March 14, 2001 7:14 AM
To: CONLAWPROF at listserv.ucla.edu
Subject: Re: Anti-abortion exhibit as sexual harassment?


Without taking a position on the first amendment issues here, just a
comment on what can or cannot constitute sexual harassment.  Seems to me
that the Court has been quite clear (in Harris, Oncale, etc.) that sexual
harassment need not be "sexual."  The relevant statutes (and, of course
with some caveats, the Constitution) forbid discrimination on account of
sex (i.e., gender).  So (notwithstanding the quote from the original story)
the statutory question is whether pictures of aborted fetuses create a
sufficiently severe hostile environment for women, on account of their
gender -- not whether those pictures are "sexually explicit."

Margo Schlanger
______________________
Margo Schlanger
Assistant Professor of Law
Harvard Law School
Cambridge, MA 02138


At 04:59 PM 3/13/01 -0500, you wrote:
>It would seem to me to be quite absurd to say that an exhibit comprised of
>photos of aborted fetuses (offensive though it may be) constitutes "sexual
>harassment."  How is a picture of an aborted baby "sexually explicit," as
>Ms. Rosser described it?  Sounds like a legal theory concocted by a
>doctoral student in the department of curriculum and instruction (which it
>is).  Insensitivity, intemperance, and a lack of charity should not
>disqualify one from having one's view heard, it seems to me, else we would
>likely have ceased hearing from the ACLU, Planned Parenthood, NARAL & Co.
>long ago.
>
>Brad Clanton
>Counsel
>House Judiciary Committee
>Constitution Subcommittee
>362 Ford House Office Building
>Washington, D.C. 20515
>202.226.7685 (phone)
>202.225.3746 (fax)
>
>
>
>-----Original Message-----
>From: Volokh, Eugene [mailto:VOLOKH at MAIL.LAW.UCLA.EDU]
>Sent: Tuesday, March 13, 2001 4:32 PM
>To: CONLAWPROF at listserv.ucla.edu
>Subject: Anti-abortion exhibit as sexual harassment?
>
>Any thoughts on the following story, either on the police brutality
>question (which unfortunately is pretty fact-intensive), or on the sexual
>harassment angle?
>
>
>
>
>
>Ryan Pittman, "U. Texas President Criticized for Handling of Exhibit",
>Daily Texan, Mar. 1, 2001 (available on LEXIS, University Wire):
>Complaints of police brutality and sexual harassment have been lodged
>against the University of Texas administration this week as a result of
>its controversial decision to allow an anti-abortion exhibit to go up near
>the center of campus last week.
>Several members of the UT community have called upon UT President Larry
>Faulkner to publicly apologize for what they call "administrative
>mismanagement of the situation," with at least one faculty member
>currently pursuing legal action against the University.
>The exhibit, sponsored by the UT student group Justice For All: Students
>for Bio-Ethical Justice in conjunction with the national Justice For All
>anti-abortion organization, included graphic images of aborted fetuses on
>a three-sided, 18-foot high display located outside Gregory Gym.
>Mia Carter, interim director of the Center for Asian-American Studies and
>outspoken critic of the exhibit, said she is "discussing the possibility"
>of legal action against the University for its role in an altercation
>between her and a UT Police Department officer Feb. 20.
>Carter claims the police officer used unnecessary force when he tried to
>confiscate a bullhorn she was holding, injuring her neck and leaving a
>small cut over her left eye.  The use of amplified sound on campus other
>than in designated areas is not permitted under UT policy.
>
>"The extent of force directed against a crowd of non-violently protesting
>faculty and students was outrageous and needs to be accounted for in
>substantial, not just merely rhetorical, ways," Carter said, referring to
>the altercation between her and the UTPD officer as well as additional
>reports of police "shoving people to the ground."
>. . .
>
>"We have the authority to make people comply with the rules and
>regulations of the campus," [Terry McMahan, assistant chief of the UTPD]
>said, adding that every UTPD officer receives training in crowd
>management.  "Police have a right to use force when it is necessary."
>Among the dozens of other complaints lodged by students and faculty
>against the administration is a claim by Yvette Rosser, doctoral candidate
>in the department of curriculum and instruction, that the administration
>is guilty of sexual harassment by allowing the graphic display to produce
>a "hostile working and learning environment for women."
>"What was paraded as an issue of freedom of speech, masked in the rhetoric
>of the First Amendment, was without question a cruel and insensitive
>spectacle that could in fact be considered a case of preplanned,
>University-sponsored sexual harassment," Rosser wrote in a letter to
>Faulkner and several other administrators.
>Rosser said the administration's decision to allow the "sexually explicit
>and morbidly graphic display" to be erected on campus amounted to visual
>sexual assault on her and her daughter, Krystina Siebenaler, a
>radio-television-film junior.  Rosser said she wants the administration to
>publicly admit it was wrong in permitting the display to go up as well as
>an apology from Faulkner.
>But Faulkner stood by the administration's decision to authorize the
>anti-abortion groups' exhibit, saying that his first concern was upholding
>the First Amendment rights of those wishing to speak on campus.
>"The University is committed to the observance of the First Amendment;
>it's central to what a university is about," Faulkner said.  "I don't see
>how we can apologize for upholding the Constitution of the United States."
>. . .