Anti-abortion exhibit as sexual harassment?

[Michael McConnell]

Garrett Epps asks a good question:

        I wonder whether, after the same-sex harassment case recently
decided, it is
        required that a woman have been offended by sexual banter?  Would a
new
        employee who was male possibly be a plaintiff as well?

Would a male plaintiff have to allege that he was offended *on the basis of
his gender*? What would that mean? Suppose he is offended by dirty jokes
because of his puritanical (I use the term in a nonpejorative sense)
religious background? Would it matter if his coworkers deliberately told
dirty jokes in his presence because they enjoyed his uncomfortable reaction?


Thus, Garrett's question raises two more questions for me:

(1) If the male worker does *not* have legal protection, why not? Isn't it
sex discrimination to protect women from speech they find offensive without
protection men from speech they find offensive?

(2) If the male worker *does* have legal protection, doesn't it suggest that
none of this has anything to do with sex discrimination? Isn't the real
legal principle here the creation of a new tort duty on the part of
employers to protect their workers from (certain types of) speech that they
find offensive?

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