Freedom of Speech and Hostile Expression

Lois Robinson compiled an impressive work history as an employee of Jacksonville Shipyards, Inc. She hired on with Jacksonville as a third class welder, and was promoted to the positions of second and,eventually, first class welder.

Jacksonville's workers performed ship repairs in large warehouses and hangars. The company also had several contracts with the federal government to repair U.S. Naval vessels; accordingly, Jacksonville was subject to federal affirmative action and anti-discrimination mandates.

Ms. Robinson was one of only a handful of skilled employees at Jacksonville, and one of even fewer female craft workers. Not long after she started working at Jacksonville, however, Ms. Robinson grew unhappy with her job environment. Pictures of nude and partially nude women were commonplace about the walls of the hangars where she worked. These pictures included photographs torn from magazines, wall plaques and calendars.

Sexually explicit drawings and graffiti similarly graced the buildings where Ms. Robinson went to her job each day. To add to her displeasure, Ms. Robinson was frequently the target of epithets and propositions from her co-workers. One welder told her he wished her shirt would "blow over her head so he could look." Another asked her to wear her shirts "tighter because that would be sexier."

Ultimately, Ms. Robinson sued Jacksonville in U.S. District Court, claiming she had been the victim of hostile environment sexual harassment. In its defense, Jacksonville urged that the company was not at fault since it had tried to prevent the conduct over which Ms. Robinson sued. Jacksonville offered another defense, however, based on the Bill of Rights: that holding the company liable for sexual harassment would deny Jacksonville its entitlement to free speech under the first amendment to the U.S. Constitution.

Hostile Environment

Title VII of the Civil Rights Act of 1964 outlaws discrimination in
employment on the basis of race, color, sex, pregnancy, religion, or national origin. The Equal Employment Opportunity Commission, the federal agency that investigates claims of employment discrimination, has, through its guidelines, deemed sexual harassment a form of sex discrimination.

The EEOC guidelines detail two forms of sexual harassment: quid pro quo, in which employment decisions or benefits are contingent on an employees submission to unwelcome sexual conduct; and hostile environment, in which an employee is forced to work in a setting that, due to sexual conduct, is pervasively intimidating or offensive. A hostile environment is often characterized by persistent jokes or conversation of a sexual nature, vulgar or obscene language, and explicit drawings or photographs, the sort of workplace Ms. Robinson found at Jacksonville Shipyards.

Most courts have accepted the EEOC's definition of a hostile environment, where "conduct has the purpose or effect of unreasonably interfering with an individual's work performance in creating an intimidating, hostile or offensive working environment," as the standard for determining fault in lawsuits like Ms. Robinson's. Under the EEOC's definition, hostile environment sexual harassment may consist solely of expression, which can be conveyed by various means: verbal, pictorial, musical, etc.

Through anti-discrimination laws and court decrees against harassers and their employers, the government attempts to control expression that constitutes sexual harassment. The first amendment to the U.S. Constitution, however, purports to protect individuals from governmental control of free expression.

While the first amendment restricts the government from creating laws "bridging the freedom of speech," no court has ever held that the right to free speech is absolute. Rather, the law recognizes circumstances in which the government may lawfully regulate expression, including:

• speech that is determined as a matter of law to be obscene;
• expression that is libelous or slanderous;
• so-called "fighting words," which by their very utterance inflict injury or tend to incite an immediate breach of the peace.

Moreover, the first amendment does not guarantee unrestricted freedom of speech in the workplace. An employer may impose reasonable time, place and manner restrictions on expression in an employment setting.

First amendment concerns notwithstanding, an employer likely will be wary of ignoring its policy against sexual harassment in favor of its employees rights to free speech. The law allows for substantial compensatory and punitive damages in sexual harassment cases, and an employer can be held responsible for the sexually harassing conduct of its managers, employees, and even third party visitors, especially if the employer failed to take adequate preventive measures to protect its employees from sexual harassment.

Published in the Summer 1996 Edition of In Brief