Academic journal article Texas Journal of Women, Gender, and the Law

Hostile Environment Sexual Harassment Law and the First Amendment: Can the Two Peacefully Coexist?

Academic journal article Texas Journal of Women, Gender, and the Law

Hostile Environment Sexual Harassment Law and the First Amendment: Can the Two Peacefully Coexist?

Article excerpt

Title VII [is] an example of a permissible content-neutral regulation of conduct.1

Where pure expression is involved, Title VII steers into the territory of the First Amendment. It is no use to deny or minimize this problem because, when Title VII is applied to sexual harassment claims founded solely on verbal insults, pictorial or literary matter, the statute imposes content-based, viewpoint-discriminatory restrictions on speech.2

Congress enacted Title VII of the Civil Rights Act of 1964 ("Title VII") to eradicate discrimination from the workplace.3 Eight years later it enacted Title IX of the Education Amendments of 1972 ("Title IX").4 Since the passage of Title VII and Title IX, the courts have broadened the definition of discrimination to include sexual harassment and have applied this expanded definition in educational as well as workplace settings.5 Hostile environment sexual harassment law attempts, among other things, to protect an individual from being subjected to a hostile environment because of his or her gender. In the last ten years, one of the responses to the increased protection from sexual harassment afforded to individuals has been to challenge the hostile environment sexual harassment doctrine as an unconstitutional restraint on freedom of speech.6 Although the Supreme Court has never directly addressed this issue,7 the tension between the First Amendment and hostile environment sexual harassment law is evidenced by an increase in litigation involving these issues in courts throughout the nation.8

Some commentators argue that hostile environment sexual harassment law regulates speech on the basis of its content.9 Under the Supreme Court's current First Amendment jurisprudence, content-based regulations on speech are presumptively invalid.10 However, the Court has permitted content-based restrictions in a few limited areas "which are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality."11 The Court has allowed content-based restrictions where the speech is associated with certain "secondary effects."12 Additionally, the Court has sanctioned content-based restrictions if a statute passes muster under a strict scrutiny analysis, where that statute is "narrowly tailored to serve compelling state interests."13 The Court also has upheld reasonable "time, place, or manner" restrictions if they are justified "without reference to the content of the regulated speech."14

The Supreme Court is not likely to overturn almost twenty years of hostile environment sexual harassment jurisprudence due to a conflict with the First Amendment for practical and policy-based reasons. If the Court ever chooses to address this issue, it will probably find that hostile environment sexual harassment law qualifies as a permissible content-based restriction under one of the various exceptions or limitations stated above. However, the clash between the First Amendment and the hostile environment sexual harassment doctrine is acute. Although the Supreme Court has attempted, in dicta, to deflate any arguments that Title VII's prohibition against hostile environment sexual harassment might contravene the First Amendment,15 the logical premise upon which the Court's content-based restriction doctrine is based suggests that the constitutionality of hostile environment sexual harassment law is far from clear.

This article will analyze the difficulties of harmonizing the Supreme Court's current First Amendment jurisprudence with its hostile environment sexual harassment jurisprudence. First, it will provide a brief background concerning the enactment of Title VII and Title IX16 and discuss the development of sexual harassment law and the hostile environment theory. The article will argue that the potential conflicts between the First Amendment and hostile environment sexual harassment law have become more acute as the Supreme Court has continued to expand its hostile environment sexual harassment jurisprudence. …

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