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Consider a Second Circuit case holding that "ten racially-hostile incidents of which [plaintiff] allegedly was aware during his 20-month tenure," of which only four occurred in his presence, were enough to create a potential harassment case. incidents that did not occur in Schwapp's presence," including one "made prior to Schwapp's employment" and "two comments made during Schwapp's employment [but outside his presence] that were hostile toward minority groups of which Schwapp is not a member. Some cases have held that even a single incident of speech -- for instance, one racial slur by a supervisor, or a "single incident of verbal abuse and negative comment concerning Japanese people" -- may be "severe or pervasive." 56 a First Circuit case, affirmed a harassment finding based on three incidents: two personal slurs (one including a threat), plus the words "White Supremacy" spray-painted in a parking lot. "The district court," the Circuit held, "erred in failing to consider the eight . 57 Other cases have granted summary judgment against harassment claims based on single incidents, or even based on several incidents, on the grounds that they weren't "severe or pervasive" enough. 4, § 208 (1997) (barring discrimination against members of national guard); City of Boston Code §§ 12-9.2, 12-9.3 (barring discrimination against past or present military members). 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"). 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.

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 5,000 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. If there is anything about harassment law that prevents liability based on this sort of speech, it has to be the severity/pervasiveness component: The fact-finder -- judge or jury -- must conclude not only that the speech was offensive, based on race, religion, sex, or some other attribute, but also that it was either "severe" or "pervasive" enough to create a hostile or abusive environment for the plaintiff and for a reasonable person. And if the outcomes in the above cases were, as one critic suggests, "bizarre judicial misapplications," "exception[s] to the rule" that should be ignored in determining the rule's true scope, it could only be because the speech in those cases didn't meet the severity or pervasiveness thresholds. (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.

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 5,000 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.

If there is anything about harassment law that prevents liability based on this sort of speech, it has to be the severity/pervasiveness component: The fact-finder -- judge or jury -- must conclude not only that the speech was offensive, based on race, religion, sex, or some other attribute, but also that it was either "severe" or "pervasive" enough to create a hostile or abusive environment for the plaintiff and for a reasonable person.

And if the outcomes in the above cases were, as one critic suggests, "bizarre judicial misapplications," "exception[s] to the rule" that should be ignored in determining the rule's true scope, it could only be because the speech in those cases didn't meet the severity or pervasiveness thresholds.

(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.

Even if I wanted to personally take time to appreciate this kind of "art," I reserve the right for that to be my choice and to not have it thrust in my face on my way into a meeting with my superiors, most of whom are men. or privileges of employment" based on, among other things, "political ideology"); Madison, Wisc., Municipal Code §§ 3.23(8)(a); Broward County Code § 161/2-3(15), 161/2-21(1).