Sexual Harassment Freedom-of-Speech Issues in the United States
Sexual Harassment Freedom-of-Speech Issues
Introduction to Sexual Harassment Freedom-of-Speech Issues
In an attempt to eliminate sexual harassment and avoid financial liability, many employers have developed company policies expressly prohibiting sexual harassment and providing reporting procedures for victims. Often these policies regulate speech in an attempt to prevent verbal harassment. Many schools have adopted similar policies, and some colleges have enacted so-called hate speech codes, which prohibit the use of certain language, such as racist and sexist comments. These policies and codes may conflict with freedom of speech, a right guaranteed by the First Amendment to the Constitution of the United States.
The U.S. Supreme Court has not yet directly addressed the potential conflict between the First Amendment and policies designed to prevent sexual harassment. However, one ruling by the Supreme Court indicates some restriction of speech to prevent sexual harassment may be permissible. In R.A.V. v. City of St. Paul (1992) the Court invalidated a city ordinance prohibiting hate speech based on race and gender. Although the focus of the R.A.V. case was racially motivated speech and not sexual harassment, the Court suggested in passing that policies designed to prevent sexual harassment could be lawful if the policies are primarily directed at conduct rather than speech.
In Robinson v. Jacksonville Shipyards (1991), a lower federal court examined the potential conflict between constitutionally protected freedom of speech and prohibited sexual harassment. In the Robinson case, female employees alleged that male coworkers created a hostile and intimidating environment by posting in the workplace numerous pictures of nude women and making sexually derogatory comments. The employees accused of harassment countered that they were exercising their right of free speech. Finding in favor of the female employees, the court concluded that the governmental interest in eliminating discrimination outweighed the harassers’ alleged free speech rights. Because each allegation of sexual harassment is assessed based on the specific circumstances of the case, other courts have concluded that no harassment takes place when employees read pornographic magazines or tell jokes involving sexual innuendo.” (1)