Sexual Harassment

VI

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.

VII

Attitudes Toward Sexual Harassment

Prior to the mid-1970s courts in the United States responded to allegations of sexual harassment by concluding that it was a “private matter.” This approach paralleled the early judicial response to racial discrimination in society. It was not until women gained legal protection of their civil rights, joined the workforce in greater numbers, and attained positions of authority that attitudes toward sexual harassment shifted. Eventually, the courts began to recognize sexual harassment as unlawful discrimination and to provide legal remedies. Throughout the 1980s increased numbers of employees—the majority of whom were women—filed lawsuits alleging employers should be held responsible for sexual harassment engaged in by their employees.

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During the 1990s several high-profile incidents focused public attention on the legal and social issues surrounding sexual harassment. For example, in 1991 U.S. Supreme Court nominee Clarence Thomas was accused of sexual harassment by Anita Hill, then a law school professor. During the confirmation proceedings, Hill alleged that Thomas engaged in sexual misconduct while she had worked for him at two federal agencies in the 1980s. Thomas denied the allegations, and the U.S. Senate ultimately confirmed his nomination by a vote of 52-48. However, the nationally televised hearings brought unprecedented attention to the issue of sexual harassment. In addition, the incident spawned public debate concerning the treatment of those who allege sexual harassment and the safeguards for those accused of committing it.

Also in 1991, several female officers in the United States Navy announced that they had been sexually harassed during the Tailhook Convention, an annual convention of navy aviators. More than 25 women, nearly half of whom were officers, alleged that drunken male pilots grabbed them, bit them, and tried to remove their clothes as the pilots pushed them down a hotel hallway. As a result of these accusations, information surfaced about other sexual misconduct at prior conventions and throughout the Navy. Furthermore, the episode increased public awareness of sexual harassment in all branches of the military. Despite official proclamations of “zero tolerance” for sexual harassment following the Tailhook incident, in 1995 the U.S. Department of Defense released a study indicating that 52 percent of women and 9 percent of men in the military had experienced what they considered to be sexual harassment.

Accusations of sexual harassment occurred at the highest levels of political power in the 1990s. Beginning in 1992 several dozen women accused U.S. Senator Robert Packwood of making unwelcome and aggressive sexual advances. He resigned in 1995 after the Senate Ethics Committee voted to expel him on charges of sexual misconduct. In 1994 Paula Jones, a former employee of the State of Arkansas, filed a civil lawsuit alleging that she was sexually harassed by U.S. President Bill Clinton while he served as governor of Arkansas. In 1998 a judge dismissed the suit after determining that even if Jones’s allegations were proven, she could not demonstrate that she had been harmed by the behavior. Jones appealed the dismissal but later agreed to a financial settlement from Clinton and dropped the case.