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The Free Speech Pamphlet Series: Sexual Harassment
FFE is deeply concerned about sexual harassment in schools and workplaces, and believes that gender-based harassment -- like all serious social problems -- requires thoughtful, fundamental solutions. We are alarmed by the facile proposals popular today among some policy-makers and activists who claim that banning a list of "bad" words and images will improve the condition of women. It will not. Such quick fix solutions ignore the substantive causes of sexual harassment and establish restrictions on words and images that will harm women's interests. Without this country's tolerance for a broad range of words and images, women could never have founded a feminist movement -- considered dangerous and sinful by many Americans -- 25 years ago. Without that tolerance, the goals of women will be harmed today.

Sanitizing workplace speech in defense of women workers enshrines archaic stereotypes of women as delicate, asexual creatures who require special protection from mere words and images.
-- From FFE's brief to the United States Supreme Court in Harris v. Forklift Systems, Inc.

1. WHAT IS SEXUAL HARASSMENT?

• Current law defines sexual harassment as a form of discrimination, and generally protects against harassment on the basis of race and religion, as it should. The law recognizes two forms of sexual harassment: (1) "quid pro quo" harassment, which typically involves a supervisor's demand for sexual favors, and (2) "hostile work environment" harassment, which holds that offensive words and pictures can hinder women's ability to work or study.
  
  
• FFE emphatically supports laws prohibiting quid pro quo harassment and hostile work environments, except when hostile work environment policies are misused to censor controversial opinions voiced in schools or work-places or expressed in books, magazines, etc.
  
  
• As a remedy to sexual harassment, some activists and policy makers propose to ban all erotic words and pictures, without regard to the damage such broad restrictions would do to women's expression -- including expression about sexual issues. In the last 25 years, women have won the right to talk about sex, reproduction, contraception and pleasure. Overbroad restrictions on sexual material would return women to the confining "propriety" from which they worked so hard to escape.

2. HOW SHOULD FEMINISTS DEFINE "HOSTILE WORK ENVIRONMENT?"

In our briefs to the Supreme Court in the recent Harris v. Forklift Systems case, and in other courts, FFE has advocated that a work or school environment becomes hostile when an employee suffers physical abuse such as unwanted touching and quid pro quo pressures. Words alone may constitute a hostile work environment when an employee suffers a pattern of targeted and/or intentional verbal abuse. Controversial, offensive opinions, books or posters --even sexist ones -- should not constitute sexual harassment unless they are directed to harass individual workers or additional evidence shows discriminatory intent to harass women or minority workers.

3. WHY SHOULD WOMEN PUT UP WITH OFFENSIVE SPEECH?

Why not define sexual harassment as broadly as possible?
Should the law prohibit all words and pictures that someone in a workplace or school finds offensive, much speech --certainly, much interesting speech -- would soon be illegal. Women's speech might well be thought offensive because it runs counter to a worker's religious beliefs. Feminist material on reproductive choice would be particularly vulnerable. Should the state force a woman to remove a pro-choice poster or magazine article from her office because another worker finds it objectionable? History teaches us that once in place, censorship schemes are used to stifle feminist advocacy of social change. Birth control pioneer Margaret Sanger was jailed under censorship laws; today in Canada, feminist books (ironically, including two by Andrea Dworkin, who has long advocated restrictions on erotic speech) have been prosecuted by the courts and seized by customs under the shadow of a new, ostensibly "feminist" obscenity law.

4. ISN'T SEXUAL MATERIAL INHERENTLY HARMFUL TO WOMEN?

• Those who focus on sexual speech, presuming it to be inherently offensive to women, miss the point. Gender-based harassment should be illegal whether or not it relies on sexual language or imagery. A woman is likely to be more intimidated by comments that she is "slow" or "dumb" than by sexual jokes. Moreover, women themselves make and enjoy sexual banter. Overbroad restrictions on sexual material infantilizes women and shores up destructive Victorian stereotypes that women are (or should be) so pure that any expression about sexuality offends and demoralizes them. This is not a feminist position.
  
  
• Finally, a focus on sexual material diverts attention from the underlying causes of harassment. Gender-based harassment (whether it uses sexual or nonsexual language) is typically a power play by men who feel threatened by women's progress toward equality or even by their presence. It is the deeply-rooted social causes of such hostility that policy makers need to address.

5. WHAT SHOULD BE DONE ABOUT SEXUAL HARASSMENT?

• Abusive demands for sexual favors and targeted verbal harassment should be addressed at all levels -- legal, educational and in personnel offices. Research shows that sexual harassment is most likely where women are few in number. Where women make up a good portion of the work force (including at high-level positions), sexual harassment decreases. The most potent remedy to sexual harassment is to increase the number of women in the work-place -- a real advance for women rather than the window dressing that image-banning provides.
  
  
• It is precisely because FFE is concerned about the causes of gender-based harassment and wants to see real solutions that we oppose misguided, ineffectual campaigns against supposedly "bad" words and images. They are meaningless substitutes for measures that will benefit women in school and on the job.
  
  

  
  The urge to censor "offensive" expression in pursuit of lofty goals is ever a strong force in our society, and one which has of late made itself increasingly felt in American culture. It is, however, an urge the First Amendment requires that we staunchly resist, in favor of the fundamental values of tolerance, pluralism, and the free exchange of ideas.
   -- From FFE's brief to the Unites States Supreme Court in Harris v. Forklift Systems, Inc.