58 I don't suggest that single incidents or even biweekly or bimonthly incidents will lead to the case going to the jury. Under the logic of harassment law, such bans on discrimination also ban hostile environment harassment. 775 §§ 5/1-103(Q), 5/2-102 (barring discrimination in "terms, privileges, or conditions of employment" based on "military status"); 51 Penn. But as one might expect, "severity or pervasiveness" is generally in the eye of the beholding judge and jury. text accompanying note 18 (describing veteran status harassment case); Ill.
Thus, Title VII may advance the goal of eliminating prejudices and biases in our society. a cartoon entitled `Highway Signs You Should Know´ [that showed] twelve drawings of sexually graphic `road signs' (entitled, for example, `merge,´ `road open,´ etc.)," and so on. depicted both men and women," the court concluded that "widespread verbal and visual sexual humor -- particularly vulgar and degrading jokes and cartoons . 44 The New Jersey Office of Administrative Law likewise found incident of 11 pages worth of jokes being forwarded by e-mail to the whole department to be "sexual harassment" creating an "offensive work environment"; the judge "f[ou]nd the 'jokes' degrade, shame, humiliate, defame and dishonor men and women based upon their gender, sexual preference, religion, skin pigmentation and national and ethnic origin" and were thus illegal. 46 A Seattle Human Rights Department pamphlet gives "the secretary who was frequently told sexual jokes by her co-workers and supervisor" as an example of sexual harassment. sex oriented `kidding´ or `jokes' [and] sexually suggestive objects in the workplace." 48 Employment experts have gotten the message, and are passing it along to employers. and who is posed for the obvious purpose of displaying or drawing attention to private portions of his or her body." This would clearly cover a wide variety of art, and might actually send people to jail -- one form of sanction for violation of a court order -- for possessing and display Gauguin prints.
38 on off-color jokes and cartoons displayed in the workplace. permit, tolerate, or condone the sexual harassment of any employee" (apparently including such humor), and to "evaluate on an annual basis the performance of each department head on the basis of the quality and success of their efforts to implement and enforce the antidiscrimination policies." 39 Another court has found a hostile environment based largely (though not entirely) on "caricatures of naked men and women, animals with human genitalia, . 40 Though "[m]any of the sexual cartoons and jokes . 47 A Hanson, Massachusetts harassment policy for city employees defines sexual harassment as "any unwelcome action, sexual in content or implication, in the workplace that includes . Thus, they recommend, to avoid liability employers should purge workplaces of "blonde jokes" (on the plausible theory that they convey offensive attitudes towards women), 49 discussions of scenes from sex comedies such as "There's Something About Mary" -- "`It's exactly the sort of thing that could create a problem for somebody,´ says Carla Hatcher, a Dallas attorney who handles office sexual harassment cases" 50 -- and Clinton-Lewinsky jokes. Court of Appeals in for instance, upheld a $125,000 damages award based in part on a coworker's playing "misogynistic rap music" and displaying "music videos depict[ing] an array of sexually provocative conduct." 52 The injunction in another case barred the possession or display of any "sexually suggestive, sexually demeaning, or pornographic" 53 materials in the workplace, defining "sexually suggestive" as covering anything that "depicts a person of either sex who is not fully clothed . And I describe below many instances in which harassment complaints were brought based on legitimate art, from Goya to cartoons, but which never came to court because employers, faced with the risk of liability, ordered the art taken down.
Originally published in the Georgetown Law Journal; reproduced with modifications and additions, and some added and omitted footnotes -- footnote numbers track the original. Political, Artistic, Religious, and Socially Themed Speech May Constitute "Harassment" A. 18 "David Duke for President" posters, after all, might well be quite offensive to many reasonable people based on their race, religion, or national origin, and may create a hostile environment; 19 likewise for confederate insignia. or privileges of employment" -- which would include harassing speech -- based on arrest record and conviction record); N. Correction Law § 752 (generally banning discrimination based on having "previously been convicted of one or more criminal offenses"); New York City Comm'n on Human Rights document (asserting that New York City human rights law bars harassment based on, among other things, "record of conviction or arrest"); City of Boston Code §§ 12-9.2, 12-9.3 (barring discrimination in "terms, conditions, or privileges of employment" based on "ex-offender status," defined as an arrest record, a record of conviction for petty misdemeanors, or a record of conviction for any misdemeanor when the sentence had elapsed over 5 years earlier); State of Wisconsin Dep't of Workforce Development, pamhplet #ERD-7334-P (including "arrest or conviction record" in prohibited bases of harassment, alongside race, sex, and so on); Chippewa Valley Technical College, 1996-1997 Catalog Compliance Statement Cornell University (same); The Office of Equal Opportunity's Fall 1996 Semi-Annual Sexual Harassment Report n.3 (treating status as "ex-offender" as equivalent to race, sex, and so on); Nicolet Area Technical College, Affirmative Action policy 001 (same); Northwest Technical College [Minnesota], Affirmative Action -- NTC Policy 1050 (same). City of Boston Code §§ 12-9.2, 12-9.3 (barring discrimination in "terms, conditions, or privileges of employment" -- which includes harassing speech -- based on "prior psychiatric treatment").
It does not require that the speech be profanity or pornography, which some have considered "low value." 17 Under the definition, it is eminently possible for political, religious, or social commentary, or "legitimate" art, to be punished. Chicago National League Ball Club, Chicago Commission on Human Relations, No. 4, 1993) (ticket scalper who was spoken to rudely because of his occupation stated a claim under Chicago antidiscrimination law, which bars discrimination and harassment based on, among other things, "source of income"); City of Boston Code §§ 12-9.2, 12-9.3 (barring discrimination in "terms, conditions, or privileges of employment" -- a phrase that has been interpreted to include harassing speech -- based on "source of income").
Similarly, the Office of Federal Contract Compliance Programs (OFCCP) characterized anti-veteran postings at Ohio State University as harassment based on Vietnam-era veteran status: OFCCP's onsite review revealed that the University had not maintained a working environment free of harassment, intimidation and coercion based upon covered veteran status for special disabled veterans and veterans of the Vietnam Era. or privileges of employment" -- a phrase that has been interpreted in the Title VII context as covering hostile environment harassment -- based on "marital status, personal appearance, sexual orientation, family responsibilities, matriculation, disability, or political affiliation"); Cal. 1995) (barring discrimination based on marital status); N.
For example, in one of the departments Professors displayed inflammatory pictures and postings, offensive to Vietnam era veterans on their office windows facing the corridors. 1988) (barring discrimination in "terms, conditions, . (An appellate court agreed that the speech was constitutionally unprotected, but reversed the harassment portion of the judgment on unusual state-law grounds.) 36 The NLRB has likewise suggested that it would be racial harassment for employees to use the words "Spics, Kikes, and Broads" to criticize the president of the employee union. The Sixth Circuit put it quite plainly: In essence, while [harassment law] does not require an employer to fire all "Archie Bunkers" in its employ, the law does require that an employer take prompt action to prevent such bigots from expressing their opinions in a way that abuses or offends their co-workers. By informing people that the expression of racist or sexist attitudes in public is unacceptable, people may eventually learn that such views are undesirable in private, as well. may tend to demean women." 41 The court ultimately held that "every incident reported by [plaintiff]" -- the jokes as well as the other conduct -- "involves sexual harassment." 42 Similarly, the EEOC recently concluded that an employee's allegation that she was "sexually harassed by offensive jokes-of-the-day circulated to her and her co-workers, and by the Supervisor's praise [in a department meeting] of the co-worker circulating the jokes" was sufficient to state a claim under Title VII; 43 the jokes were neither at the offending employee's expense nor were they even generally sexist or misogynist. Department of Labor pamphlet likewise defines harassment as including cases where "[s]omeone made sexual jokes or said sexual things that you didn't like," with no requirement that the jokes be insulting or even misogynistic. The Effect of Cases That Rely Even in Part on Speech F. 1996) (same as to "alienage or citizenship status"); New York City Comm'n on Human Rights document (asserting that New York City human rights law bars harassment based on, among other things, "alienage or citizenship status"); D. 20 This would be even more true of bigoted or insensitive remarks about minority or female political candidates. §§ 111.31, 111.32 (barring discrimination in "terms, conditions, . Complaints regarding the offensive postings and verbal harassment were brought to the attention of University Executives. 35 centerfold with the candidate's picture superimposed over the model's head.