Gwen the harasser wins!

[Eugene Volokh]

    You may recall Gwen, the heroine of my short article at 17
Berkeley J. of Emp. & Labor Law 305 (1996).  "Gwen" is a painting by
artist Maxine Henderson, which was hanging in the Murfreesboro,
Tennessee City Hall.  The painting depicted "a partially clad woman,
[with] her arm over her breast, and legs crossed"; part of a nipple
was showing.

    A city employee who saw the painting filed a sexual harassment
complaint, saying the painting created a hostile environment:

             "`I personally find `art' in any form whether it be
      a painting, a Greek statue or a picture out of Playboy
      which displays genitals, buttocks, and/or nipples of the
      human body, to be pornographic and, in this instance,
      very offensive and degrading to me as a woman.
             "`Even if I wanted to personally take time to appre-
      ciate this kind of `art,' I reserve the right for that to
      be my choice and to not have it thrust in my face on my
      way into a meeting with my superiors, most of whom are
      men.'"

The city took the painting down, and the City Attorney had this to
say:

             "I feel more comfortable siding with protecting the
      rights under the Title VII sexual harassment statutes
      than I do under the First Amendment.
             "We wouldn't permit that type of drawing or picture
      to hang in the fire hall.  As far as I'm concerned, a
      naked woman is a naked woman."

The City Attorney later elaborated:

             "Though [the complainant] probably couldn't win a sexual
      harassment suit over the picture, Murfreesboro still has to
      protect itself against future lawsuits . . . .  If the city
      did nothing about the complaint about [the painting] or other
      complaints of harassment, a court could conclude the city was
      ignoring the rights of its female employees."

    The artist sued the city for taking down the painting, claiming
that the city had created a limited public forum.  The city denied
this, and further argued that the removal of the painting was
necessary to prevent the creation of a hostile environment.

    On March 27, U.S. District Judge Thomas Higgins (M.D. Tenn.,
Nashville Div.) held for Henderson.  He agreed that the city had
created a limited public forum, and rejected the city's harassment
argument.  Curiously, his justification was that the city's decision
to remove the painting was an exercise of standardless discretion,
and was therefore an impermissible means of trying to fight sexual
harassment.

    I've talked to a local reporter who's covering the story, and she
said that the City Attorney is unrepentant.  Here I am paraphrasing
her -- I should get the text of the article soon -- but the Attorney
apparently said that his job is to prevent the city from incurring
liability, and that it's better to risk a $1 nominal damage award in
a First Amendment lawsuit (I think that's all Henderson won) rather
than a multi-hundred-thousand dollar award in a sexual harassment
lawsuit by an offended employee.  (I actually sympathize with the
City Attorney here:  Harassment law does indeed create a very
substantial incentive for employers, public and especially private,
to dramatically overcensor.)

    This case seems to have gotten very little press attention, but
it strikes me as quite fascinating, and in its own way quite
important.  This is not an uncommon fact pattern -- I've seen at
least a dozen press reports of incidents in which harassment
complaints were made based on "legitimate" art, including one about
"Naked Maja" by Goya.  This is, though, one of the few cases that has
had to squarely confront the inconsistency of workplace harassment law
with the First Amendment.

    The reporter tells me that the city is apparently not planning to
appeal.

                               -- Eugene Volokh, UCLA Law