Anti-abortion exhibit as sexual harassment?

[Michael MASINTER]

A minor correction to a citation and a piece of history.  Robinson v.
Jacksonville Shipyards was dismissed because the defendant went out of
business.  The eleventh circuit sat on the case for well over a year after
it was briefed before dismissing it, apparently hoping it would go away.
It did.

Michael R. Masinter                     3305 College Avenue
Nova Southeastern University            Fort Lauderdale, Fl. 33314
Shepard Broad Law Center                (954) 262-6151
masinter at nova.edu                       Chair, ACLU of Florida Legal Panel

On Wed, 14 Mar 2001, Lynne Henderson wrote:

> In brief response to Prof. McConnell:  Hostile environment cases involving
> outright hostility to women in the workplace  is not all that rare,
> especially as women enter workplace environments that have been exclusively
> male preserves.  These include speech--see Sylvia Law, *Girls Can't Be
> Plumbers* in Harv. W. l. J., Vicki Schultz, *Telling Stories About Women and
> Work* in Harv. L. Rev., Schultz in Yale LJ 1999, cf. *Robinson v.
> Jacksonville Shipyards* (appeal dismised by agreement 1995).  "Sexual
> harassment", as Schultz notes in the Yale piece, overlooks other forms of
> speech that denigrate women and create hostile environments --eg,
> discriminatory speech that is not "sexualized" in the narrow sense of
> involving sexual acts.
> The "oversensitive woman" notion--or the humorless feminist--has been used
> by many courts to suggest that *all* or *most* women have to be offended,
> and that "ribaldry" in the work place is just something women have to put up
> with.  See Susan Estrich *Sex at Work* 43 (?) Stan. L .Rev.  The 9th Circuit
> OTOH in an opinion by Koszinski suggests the "reasonable woman"
> standard--would the reasonable woman" feel threatened or discriminated
> against in a hostile environment case.  *Ellison v. Brady*
> Sorry the cites are incomplete.  I'm on the road.
> Lynne
>
> on 3/14/01 10:12 AM, Michael McConnell at mcconnellm at LAW.UTAH.EDU wrote:
>
> > 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."
> >> . . .
>
>