Verbal Sexual Harassment as Equality-Depriving Conduct

Authors

Keith R. Fentonmiller, University of Michigan Law School

Abstract

Part I of this Note argues that commentators like Browne and some courts have mischaracterized the harm of verbal sexual harassment as mere "offense." Rather, the true harm of a sexually hostile environment created by words and expressive conduct extends beyond offense, emotional distress, and economic displacement; at bottom, the harm is equality-deprivation.

Part II explains how a sexually hostile environment is equality-depriving by arguing that words which create a sexually hostile environment must be understood in historical and social context. Words can be used not only to communicate ideas but also to perform acts of coercion and sexual abuse. Furthermore, sexually abusive speech must be understood in its institutional context. The workplace is the dominant institution in the lives of most adult citizens. It is a community that not only provides financial sustenance but also serves an identity-forming function. How a worker is perceived and treated in the workplace is related intimately to the formation of his or her self-identity. Sexually abusive speech in the workplace proves to be equality-depriving in the sense that it creates a communally shared set of meanings, a workplace ethos, that defines a harassment victim as inferior to her opposite sex counterpart.

Part III argues that the workplace should be viewed as a public sphere in which the democratic process matters. Decisions that have broad societal impact are made in the workplace. If democracy in this country is to mean more than the occasional vote for a public official, workers should have a greater role and voice in workplace governance. Affording workers a greater voice in order to democratize the workplace, however, does not entail the toleration of sexually abusive expression. Such toleration would only substitute one hierarchy, management over labor, for another, male over female, or vice versa. An employee's ability to be heard in the workplace democracy must not be impeded by a workplace ethos- that devalues another employee's humanity.

Part IV explores why the regulation of verbal sexual harassment in the workplace meets constitutional challenges. The regulation of sexually abusive speech in private workplaces is no more problematic from a constitutional perspective than the regulation of other types of coercive speech in the traditional labor and public employee contexts. In those contexts, courts balance free speech interests, of employees against statutory and common-law interests such as industrial harmony and workplace efficiency. Following the balancing approach adopted in the labor and public employee contexts, courts concerned about encroaching on employee free speech in hostile environment cases should balance any free speech interest in the alleged verbal sexual harassment against the compelling governmental interest in ensuring sex equality. A balancing of free speech and equality interests often should favor the prohibition from the workplace of sexually stereotyped comments, epithets, propositions, and pornography. The few cases in which the Supreme Court has simultaneously addressed the First Amendment and equality interests reveal a precedent of not forsaking equality to foster an absolutist position on freedom of speech.

Part IV also argues that recent Supreme Court decisions have suggested that the restriction of sexually abusive workplace speech may be legal as a content-neutral regulation of equality-depriving conduct. Hostile environment law is constitutional because it targets equality-depriving conduct generally rather than focusing on particular messages or ideas.

Finally, Part V explores the sweep of hostile environment law, and illustrates that as a content-neutral regulation of equality-depriving conduct, it is neither unconstitutionally overbroad nor vague. This Note concludes that sexual harassment in the workplace is not only sexual abuse but also constitutes equality-depriving conduct. Consequently, it can be regulated without offending the First Amendment protection of free speech.

Recommended Citation

Keith R. Fentonmiller, Verbal Sexual Harassment as Equality-Depriving Conduct, 27 U. Mich. J. L. Reform 565 (1994).
Available at: https://repository.law.umich.edu/mjlr/vol27/iss2/6