1st Am and intent to create a offensive environment/Red herrings

Leslie Goldstein lesl at UDEL.EDU
Wed Mar 21 08:23:55 PST 2001

"Volokh, Eugene" wrote:       But beyond this, Marty's interpretation of
Oncale rests very uneasily with what is now conventional wisdom
-- uncontroverted by any employment expert whose work I've read -- that
pornography posted in the workplace
is (if "severe or pervasive" enough) sexually harassing, with no
requirement of intention to offend women.  If a
man puts up some pinups simply because he likes looking at pictures of
naked or scantily clad women (and may
have had such pictures up since long before women started working at his
job site), that's widely accepted to be
sexual harassment.  See, e.g., among many sources, Hostetler v. Quality
Dining, 218 F.3d 798, 807 (7th Cir.
2000) (mentioning this offhandedly, as a settled matter); O'Rourke v.
City of Providence, 235 F.3d 713 (1st Cir.
2000) (likewise treating it as an accepted principle); White v. N.H.
Dep't of Corrections, 221 F.3d 254 (1st Cir.
2000) (discussing coworkers' viewing of pornography as part of the
plaintiffs' case, without any hint that such
viewing was actionable only if it was intended to cause offense to
Leslie asks:
I wonder if Eugene would draw a distinction between posting old
fashioned calendar girl pinups (scantily clad, clearly non-obscene) from
posting in his own cbby-space, say, but clearly visible to others,
close-up photos of women being raped (e.g. with guns or knives to thier
heads).  Say the guy had been doing it before any women were ever hired.

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