Harassment Through Art and Music
Likewise, art or music that is seen as politically offensive, misogynistic, or sexually themed can lead to harassment liability. A U.S. Court of Appeals in Slayton v. Ohio Dep’t of Youth Services, for instance, upheld a $125,000 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 who is posed for the obvious purpose of displaying or drawing attention to private portions of his or her body.” This would clearly cover a wide variety of art, and might actually send people to jail — one form of sanction for violation of a court order — for possessing and display Gauguin prints. And I describe below many instances in which harassment complaints were brought based on legitimate art, from Goya to New Yorker cartoons, but which never came to court because employers, faced with the risk of liability, ordered the art taken down.
When a library employee complained about a coworkers’ posting a New Yorker cartoon that used the word “penis” — with no sexually suggestive connotation at all — the library ordered that it be taken down. 88 When a professor at Penn State complained that a print of Goya’s Naked Maja hanging in a classroom constituted sexual harassment, the school administration removed the painting, citing as one reason the risk of harassment liability. 89 When an employee at Murfreesboro (Tenn.) City Hall complained about a painting depicting a partly naked woman, the City Attorney had it taken down, saying:
I feel more comfortable siding with protecting the rights under the Title VII sexual harassment statutes than … under the First Amendment.… We wouldn’t permit that type of drawing or picture to hang in the fire hall. As far as I’m concerned, a naked woman is a naked woman. 90
Excerpted with permission by author: Prof. Eugene Volokh, UCLA Law School
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