Gavin Howe
Sexual harassment is a form of sex discrimination prohibited by Title VII of the Civil Rights Act. The creation of a hostile work environment through sexual comments or conduct is a type of sexual harassment that may implicate First Amendment free speech freedoms. Courts have upheld statutes prohibiting sexual harassment against First Amendment challenges, arguing that the First Amendment does not bar punishment for sexually hostile educational or workplace environments. The Equal Employment Opportunity Commission (EEOC) defines sexual harassment as unwanted sexual advances or requests for sexual favors linked to an individual's employment or work performance. This includes quid pro quo sexual discrimination, such as demanding sexual favors in exchange for hiring, promotion, or continued employment. Sexual assault, a form of sexual harassment, violates the constitutionally protected right to bodily integrity under the Fourteenth Amendment.
| Characteristics | Values |
|---|---|
| Sexual harassment law | May restrict sexually derogatory "fighting words" |
| May suppress "legitimate art" as well as pornography | |
| Does not shield acts that express a discriminatory idea or philosophy | |
| Does not protect speech that creates a "hostile educational environment" | |
| Does not protect speech that creates a "hostile public accommodations environment" | |
| Does not protect speech that creates a "hostile work environment" | |
| Does not protect speech that constitutes discriminatory conduct | |
| Protects the right to bodily integrity |
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What You'll Learn
Sexual harassment as a form of sex discrimination
Sexual harassment is a form of sex discrimination. Sex discrimination occurs when a person is treated less favourably because of their sex, which includes sexual orientation, gender identity or expression, pregnancy or pregnancy-related conditions, or sex stereotypes. Sexual harassment can include unwelcome sexual advances, requests for sexual favours, and other verbal or physical harassment of a sexual nature. It can also include offensive remarks about a person's sex, such as derogatory comments, jokes, or gestures directed at an individual because of their sex or gender identity.
Sexual harassment is prohibited by Title VII of the Civil Rights Act, which forbids discrimination in any aspect of employment, including hiring, firing, pay, promotions, and other terms and conditions of employment. This means that it is unlawful to harass a person because of their sex in the workplace. Courts have upheld very strict limitations on sexually explicit material in the workplace because of the sexually discriminatory environment it creates. For example, the display of pornographic materials in libraries may constitute unlawful sex discrimination in violation of Title VII of the Civil Rights Act.
In the United States, the Constitution protects the right to bodily integrity, which means that the State cannot deprive citizens of their freedom as articulated in the Bill of Rights and guaranteed by the 14th Amendment. Sexual assault, which can include sexual harassment, is a violation of this right. The Supreme Court has held that sexual assault can never be justified as a legitimate State interest and therefore cannot outweigh the constitutionally protected right to bodily integrity.
Individuals who experience sexual harassment have the right to report it and seek a prompt and effective response to prevent further harassment. This includes reporting harassment to school administrators or to the Department of Education's Office for Civil Rights (OCR) in the case of colleges or universities that receive federal funds. Individuals can also file a complaint with the federal Equal Employment Opportunity Commission or the Department of Labor if they believe they have been discriminated against in the workplace because of their sex.
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Sexual harassment and the First Amendment
Sexual harassment in the workplace has often resulted in tension between the demands of the equal protection clause of the Fourteenth Amendment and the First Amendment's free speech rights. The First Amendment generally prohibits speech from being punished based on its communicative impact. However, the First Amendment does not protect all forms of speech, and courts have upheld statutes prohibiting sexual harassment against First Amendment challenges.
The Equal Employment Opportunity Commission (EEOC) defines sexual harassment in two ways. Firstly, it is defined as unwanted sexual advances or requests for sexual favors linked to an individual’s employment. This includes demands for sexual favors in exchange for career advancement or continued employment. The second definition involves sexual advances or comments that unreasonably interfere with an individual’s work performance, creating an intimidating, hostile, or offensive work environment.
Courts have held that certain forms of sexual communication in the workplace are not protected speech and constitute a form of discriminatory conduct. In Robinson v. Jacksonville Shipyards (M.D. Fla. 1991), a federal district court ruled that posting sexually explicit pictures and making sexually derogatory comments directed at a worker constituted sexual harassment. Similarly, in DeAngelis v. El Paso Mun. Police Officers' Ass'n, the court asserted that sexually derogatory "fighting words" could violate Title VII's prohibition against sexual discrimination in employment practices.
While the First Amendment protects an individual's right to free speech, it does not shield discriminatory or harassing speech in the workplace. The courts have recognised the captive nature of the employee audience in the workplace, and efforts to limit sexually charged speech are considered reasonable time, place, and manner restrictions.
Outside of the workplace, the application of the First Amendment to sexual harassment is more complex. For example, in educational institutions, there is a tension between the right to free speech and the need to maintain a safe and inclusive learning environment. The nature of education necessitates that individuals be given the opportunity to freely express themselves and challenge the status quo. However, this must be balanced with the need to protect individuals from harassment and ensure equal access to educational opportunities.
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Sexual assault and the right to bodily integrity
Sexual harassment and assault are complex and highly politicised issues that are often subject to power relations in both the private and public domains. In the United States, the Constitution protects an individual's right to bodily integrity, which means that the State cannot deprive citizens of their freedom. This right to bodily integrity is guaranteed by the 14th Amendment and articulated in the Bill of Rights.
The right to bodily integrity is a fundamental human right that sits at the core of human individuality and is protected by the Constitution. This right cannot be outweighed by sexual assault, which can never be justified as a legitimate State interest. The Supreme Court has upheld this right in cases of sexual assault, such as the Lanier case, where a Tennessee juvenile court judge was indicted for sexually assaulting several women in his judicial chambers. While the Supreme Court left undecided the issue of whether the victims were deprived of their constitutionally protected right to be free from sexual assault, it reiterated the importance of the right to bodily integrity.
Sexual harassment laws also play a role in protecting individuals from sexually hostile environments. Statutes prohibiting sexual harassment have been upheld against First Amendment challenges, as the government may constitutionally bar speech that creates a hostile educational or public accommodations environment. Additionally, Title VII of the Civil Rights Act prohibits sex discrimination, including the display of pornographic materials in the workplace, which can create a sexually hostile environment for employees.
The issue of sexual assault and the right to bodily integrity is not limited to the United States. Internationally, sexual and reproductive health and rights have gained prominence in sustainable development goals, and human rights standards have been applied to a wide range of sexuality and sexual health-related matters. Sexual violence and assault have been documented during conflicts and perpetrated by brutal groups and military personnel, highlighting the ongoing struggle for bodily integrity and the need for continued advocacy and protection.
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Hostile work environments
Sexual harassment in the workplace is a form of sex discrimination prohibited by Title VII of the Civil Rights Act. This includes hostile work environment sexual harassment, which is recognised by California and federal law. Hostile work environment harassment occurs when an employee experiences an abusive or hostile work atmosphere due to the behaviour or actions of their employer or coworker. This behaviour can affect more than one employee and does not have to be perpetrated by someone with power over the victim.
To establish a hostile work environment claim, an employee must show the following:
- Conduct: The employee was subjected to conduct based on a legally protected characteristic. This includes unwelcome sexual advances, requests for sexual favours, and verbal or physical conduct of a sexual nature.
- Objective hostility: The conduct was either so severe or frequent that a reasonable person in the employee's position would conclude that the working conditions were abusive.
- Subjective hostility: The employee actually found the conduct to be hostile, i.e. the employee did not welcome the conduct.
- Liability: The employer can be held liable for the harassment. The harasser's role and whether there has been a tangible employment action are critical to determining the appropriate liability standard.
Employers are responsible for preventing workplace harassment and for taking swift action to end harassing behaviour once they become aware of it. This includes implementing policies that prohibit harassment, providing training to employees, and establishing safe and effective procedures for reporting harassment.
While the First Amendment protects free speech, it does not bar the punishment of sexually hostile speech in educational or public accommodation environments. Similarly, the Constitution protects the right to bodily integrity, which means that sexual assault cannot be justified as a legitimate state interest.
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Pornography and sexually explicit material in the workplace
In a recent survey, 63% of men and 36% of women stated that they had viewed pornography while at work in the last three months. With the prevalence of pornography use in the workplace, it is not uncommon for unsuspecting workers to be exposed to explicit content against their will.
Employers have an obligation to prevent workers from being exposed to sexual images and videos against their will while at work. Title VII of the Civil Rights Act prohibits sex discrimination, and permitting pornographic displays may constitute unlawful sex discrimination in violation of this.
Employees in New York City exposed to workplace pornography might find it advantageous to file claims at the city or state level rather than federally. This is because federal regulations stipulate that sexual harassment must be either pervasive or severe for claims to be successful. In contrast, New York State and City laws have removed the need for victims to prove that the conduct was extreme or frequent. These laws also protect employees from retaliation when they report workplace pornography, file a claim against their employer, or testify in another employee's claim.
In some cases, pornography and offensive pictures can be used for revenge porn, which can also create a claim for online sexual harassment. If an employee is fired or faces other forms of retaliation for reporting this behaviour, they may have a case for retaliation in the workplace.
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Frequently asked questions
Sexual harassment is defined in two ways by the Equal Employment Opportunity Commission (EEOC). Firstly, sexual harassment is defined as unwanted sexual advances or requests for sexual favors linked to an individual’s employment. The second definition is when sexual advances or comments unreasonably interfere with an individual’s work performance.
The creation of a hostile work environment through sexual comments may implicate First Amendment freedom of speech. However, the courts have held that speech has never been given absolute protection in the workplace, and some types of sexually derogatory "fighting words" may produce a violation of Title VII's general prohibition against sexual discrimination in employment practices.
The Supreme Court has reiterated that the Constitution protects the right to bodily integrity. Sexual assault can never be justified as a legitimate State interest and therefore violates the constitutionally protected right to bodily integrity.
