Anti-abortion exhibit as sexual harassment?

[Chambers Jr, Henry L.]

The focus is not so much on the speech or conduct itself, but on the
workplace atmosphere the speech helps creates.  The key is that the
workplace atmosphere faced by the plaintiff be discriminatory, i.e., one in
which the plaintiff has a more difficult time doing her job because she is a
woman.  Of course, the more derogatory and explicitly sexual the speech or
conduct is, the easier it will appear to help create a hostile work
environment under Title VII.

Consequently, an individual joke will not create a hostile work environment.
However, when the joke is combined with other jokes and hostile comments and
pin-ups, etc., a hostile work environment may be created.

As Eugene has often and rightly noted, employers may seek to prohibit all
speech/conduct that might help create a hostile work environment precisely
because they do not know what mix of speech/conduct will suffice to create a
hostile work environment.  While that concerns me a little, I think it
concerns Eugene a lot. :-)

-Hank

Henry L. Chambers, Jr.
Associate Professor of Law
University of Missouri-Columbia
chambersh at missouri.edu
(573) 882-7562


-----Original Message-----
From: Michael McConnell [mailto:mcconnellm at LAW.UTAH.EDU]
Sent: Wednesday, March 21, 2001 8:12 AM
To: CONLAWPROF at listserv.ucla.edu
Subject: Re: Anti-abortion exhibit as sexual harassment?


I understand that speech can be "clearly hostile" to the point of being
"upsetting to the normal person" and that "no one likes running a gauntlet
of abuse in order to do their job." But I want to know what makes it
*discriminatory*. People are nasty to one another for all kinds of reasons.
On the assumption that the background rule is that people are free to
express hostility and nastiness to one another (sticks and stones, etc.),
does this become a Title VII problem because: (1) the speaker is motivated
by animus against women (or whatever protected group we are talking about)?
(2) the victim's reaction is connected to being female (or whatever the
protected category is)? (3) the group to which the victim belongs is "vastly
outnumbered at work and there are lots of hostile fellow workers making such
remarks occasionally"? (4) the employer is selective in whom it protects
against such nastiness? Something else? Please allow me to repeat that I am
not making an argument, I am asking a question. I am not asking the
normative question of what the law should be, or the constitutional question
of how the free speech clause applies, but the positive question of what
Title VII, as currently interpreted in actual practice, means.

I am most interested in the situation in which workers are talking to one
another for their own amusement (for example, telling sexual jokes), and a
third party is offended, thinking that the jokes are sexist. Can that be a
Title VII violation?

In case Marty Lederman is thinking of reposting his Oncale quote again, let
me assure him that I have read it, and think I understand it, but do not
believe that it reflects actual Title VII practice. If the quotation from
Oncale is controlling, then nasty speech is actionable only when it is
directed to the victim on account of the victim's sex, race, etc. (my
category (1) in the preceding paragraph). If taken seriously, that would
very substantially reduce the number of successfull harassment complaints.
Maybe that is right, but if so, the legal and employment world has yet to
notice it.

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