1st Am and intent to create a offensive environment

Michael MASINTER masinter at NOVA.EDU
Fri Mar 16 15:35:57 PST 2001

I wonder whether a plaintiff can establish a claim of hostile environment
sexual harassment without a showing of intent.  Although the EEOC
regulations speak to "the purpose or effect" of creating a hostile
environment, I think it pretty clear that for the claim to succeed, the
actor must have created the hostile environment because of the victim's
sex.  The underlying theme of sexual harassment cases has always been
disparate treatment, a/k/a intentional discrimination. I can think of no
sexual harassment decision from the courts of appeal or the Supreme Court
which rests on anything other than disparate treatment of women (or, as
alleged but still to be proven in Oncale, men).

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 Fri, 16 Mar 2001, Lynne Henderson wrote:

> There is no "intent" requirement in hostile environment or sexual harassment
> cases--the language is either "the purpose *or* effect" of creating a
> hostile environment.
> Lynne
> on 3/16/01 7:45 AM, Volokh, Eugene at VOLOKH at mail.law.ucla.edu wrote:
>    David posts an excellent question; and I agree that speech that is
> intended to offend, or intended to create a hostile or offensive
> environment, or for that matter intended to lead to illegal conduct, seems
> intuitively to be more problematic than speech that is well-intentioned and
> merely has some unfortunate side effects.
>    Nonetheless, I think that it would be quite dangerous to interpret the
> 1st Am as allowing such speech to be punished, largely (though not entirely)
> because intent is so hard to figure out, and so hard to distinguish from
> mere *knowledge* that the speech will offend or will lead some listeners to
> behave badly.
>    One clear example is the Schenck/Debs/Abrams line of cases -- the problem
> there wasn't just that the speech should probably have been protected even
> if it was intended to lead to illegal conduct, but rather that it's not
> clear that the speakers had such an intent (the Holmes dissent in Abrams of
> course makes this point).  Intent is generally hard to determine, but this
> difficulty is exacerbated by the human tendency to think the worst of people
> with whom you disagree as a substantive matter.  When judges and juries in
> the 1910s and 1920s saw those awful
> Socialists/Communists/anarchists/pacifists, of course they were willing to
> assume that their intentions were the worst.  Add to that the sensible
> presumption that people may be assumed to intend the natural consequence of
> their actions, and the line between intent and knowledge or even
> recklessness become extremely unadministrable.  And though Brandenburg still
> maintains the intent requirement, it's the imminence prong that provides the
> safe harbor which usually prevents these problems for manifesting themselves
> -- without the imminence prong, there'd be far too little protection for
> speech that some jury might find to be ill-intentioned.
>    Likewise, I think the Court was correct in Garrison v. Louisiana to
> reject the knowledge that ill intentions could substitute for a showing of
> "actual malice" or even for a showing of falsehood (recall that libel law
> used to make truth a defense only when said "with good motives and for
> justifiable ends").  First, even ill-intentioned speech may be valuable for
> public debate; but beyond that, the line between speech that's motivated by
> hatred and speech that's motivated by a genuine desire to inform but that is
> coupled with disapproval of the target is very hard to draw.  And I think
> one can say the same about Hustler v. Falwell.
>    Finally, this very incident -- anti-abortion speech at UT -- illustrates
> all these problems:  Whether the speakers intend to create a hostile
> environment for women depends on who's doing the mind-reading.  Those who
> believe that anti-abortion speech is inherently sexist or misogynistic (I
> cited some before) will probably assume this; likewise for those who take
> the more modest view that anti-abortion speakers are generally sexist or
> generally opposed to the advancement of women or their presence in
> universities, the professions, and the workforce.  Those who think
> anti-abortion speech is correct on the merits will take the opposite view.
> The bottom line will thus have little to do with the speakers' true
> intentions, and a lot to do with the political prejudices of the
> factfinders.
>    Eugene
> David Bernstein writes:
> I wonder, as a general matter, what the role of intent should be in
> these
> cases.  Let's assume, counterfactually, that the anti-abortion exhibit
> was
> *intended* to create a hostile environment for women.  Would this change
> the
> result?  To take a more likely example, I would generally protect the
> right
> of male construction workers to post pictures of nude women in their
> lockers
> (if their employer didn't object).  But let's say a group of all-male
> construction workers did not have pictures of nude women in their
> lockers,
> but started putting them up when the first woman workers is hired,
> precisely
> with the intent to make her feel unwelcome.  The employer is aware that
> the
> pictures are being put up for this reason, and fails to order them taken
> down.  Can this, consistent with the First Amendment, be used as
> evidence in
> a hostile environment case?  Does this come within Eugene's definition
> of
> speech directed at the particular employee?  If so, what if three (or
> ten)
> women were hired at once, to be greeted with the nude pictures.  (I
> don't
> want the answer to hang on how bad you think nude pictures are, so feel
> free
> to substitute, for example, workers starting to show up to work with
> t-shirts
> with crude anti-woman slogans).
> David Bernstein

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