Do Sexual Harassment Laws Violate the First Amendment Essay

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However, it also seems to be a basic affront to the notion of equality to suggest that women should have to endure sexually harassing behavior in order to be in the workplace. Speech is, almost without fail, a component of sexual harassment claims. Those who engage in sexually harassing behavior use speech to convey their messages. Sometimes these messages are overt demands that establish cases of quid pro quo sexual harassment. Other times, the speech or symbolic speech is less overt, but, instead, may feature things like provocative pictures of women displayed in the work place.

This overtly sexual speech in the context of sexual harassment cases has not become a significant First Amendment issue is not a surprise. Not only have claimants been reluctant to suggest that such speech has First Amendment protections, but also the courts have dismissed those claims that the speech has been protected (Gerard, 1992-1993). There has been almost no consideration of the fact that any law regulating speech almost certainly has First Amendment implications. This is not a surprise because obscenity and sexually-oriented materials have never received the same degree of protection as other forms of speech.

However, it is possible that the modern political and religious environment might be changing the nature of sexual harassment in the workplace. It has never been necessary to prove quid-pro-quo sexual harassment in order for a claimant to prevail in a sexual harassment claim. On the contrary, all that has been necessary is for the claimant to demonstrate a hostile work environment. Surely a work environment where people are telling a woman that she should be home raising babies instead of in the workplace is as hostile as one where a woman is subjected to lewd photographs or jokes. However, if those statements reflect the religious beliefs of the speaker, should the government be allowed to prohibit and punish them through Title VII of the Civil Rights Act of 1964? The answer is a conditional yes. The government has always been permitted to restrict the rights in the Bill of Rights if it can demonstrate a compelling government interest. Sexual harassment impacts not only its victims, but also the workplace, so that the government has a compelling interest in eliminating it, which justifies the First Amendment restrictions (Kent, 1994).

What the discussion of this position makes clear is that Bowie's assertion that basic ethical principles do not vary among cultures takes an oversimplified view of ethics. It does appear that basic ethical guidelines are the same in many cultures: almost all cultures prohibit murder, theft, some forms of sexual assault, and even less criminal forms of wrongdoing such as lying and adultery. However, how these terms are defined vary wildly by culture. Moreover, these cultural impacts on ethical guidelines can have a strong impact on what is perceived as justice by that culture (Shao et al., 2013). Viewed within the context of the United States, where so many people from different cultural and religious backgrounds interact on a daily basis, one would expect to find this conflict in the ideation of what justice means. Some are going to feel that justice in the workplace means that people can work without fear of harassment. Others are going to feel that depriving them of the opportunity to engage in behavior that is considered sexual harassment denies them of justice because it infringes on their rights. It seems that the most logical conclusion is to view rights as ending when they impact the ability of others to enjoy their freedoms. People who believe in the inferiority of women are welcome to speak about that all that they want outside of the context of the workplace, which means that, though limited, their rights are not destroyed by workplace limitations on harassing behavior.


Gerard, J. (1992-1993). The First Amendment in a hostile environment: A primer on free speech and sexual harassment. Notre Dame Law Review, 68, 1003.

Kent, a. (1994). First Amendment defense to hostile environment sexual harassment: Does discriminatory conduct deserve constitutional protection? Hofstra Law Review, 23(2),


Shao, R., Rupp, D., Skarlicki, D. & Jones, K. (2013). Employee justice across cultures: A…[continue]

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