Sexually Themed Jokes
The Montana Human Rights Commission has found a hostile environment based solely on off-color jokes and cartoons displayed in the workplace. None of the jokes were said specifically to the complainant; none referred to her; the cartoons were distributed by men and women alike, apparently once or twice a month over several years; the cartoons weren’t even sexist or misogynistic. The Commission, however, was not amused. It concluded that the jokes “ha[d] no humorous value to a reasonable person,” and “offended [complainant] as a woman.” The Commission ordered the city to pay damages, to “not … permit, tolerate, or condone the sexual harassment of any employee” (apparently including such humor), and to “evaluate on an annual basis the performance of each department head on the basis of the quality and success of their efforts to implement and enforce the antidiscrimination policies.” 39
Another court has found a hostile environment based largely (though not entirely) on “caricatures of naked men and women, animals with human genitalia, … a cartoon entitled ‘Highway Signs You Should Know´ [that showed] twelve drawings of sexually graphic ‘road signs’ (entitled, for example, ‘merge,´ ‘road open,´ etc.),” and so on. 40 Though “[m]any of the sexual cartoons and jokes … depicted both men and women,” the court concluded that “widespread verbal and visual sexual humor — particularly vulgar and degrading jokes and cartoons . . . may tend to demean women.” 41 The court ultimately held that “every incident reported by [plaintiff]” — the jokes as well as the other conduct — “involves sexual harassment.” 42
Similarly, the EEOC recently concluded that an employee’s allegation that she was “sexually harassed by offensive jokes-of-the-day circulated to her and her co-workers, and by the Supervisor’s praise [in a department meeting] of the co-worker circulating the jokes” was sufficient to state a claim under Title VII; 43 the jokes were neither at the offending employee’s expense nor were they even generally sexist or misogynist. 44 The New Jersey Office of Administrative Law likewise found one incident of 11 pages worth of jokes being forwarded by e-mail to the whole department to be “sexual harassment” creating an “offensive work environment”; the judge “f[ou]nd the ‘jokes’ degrade, shame, humiliate, defame and dishonor men and women based upon their gender, sexual preference, religion, skin pigmentation and national and ethnic origin” and were thus illegal. 45
An official U.S. Department of Labor pamphlet likewise defines harassment as including cases where “[s]omeone made sexual jokes or said sexual things that you didn’t like,” with no requirement that the jokes be insulting or even misogynistic. 46 A Seattle Human Rights Department pamphlet gives “the secretary who was frequently told sexual jokes by her co-workers and supervisor” as an example of sexual harassment. 47 A Hanson, Massachusetts harassment policy for city employees defines sexual harassment as “any unwelcome action, sexual in content or implication, in the workplace that includes … sex oriented ‘kidding´ or ‘jokes’ [and] sexually suggestive objects in the workplace.” 48
Employment experts have gotten the message, and are passing it along to employers. Thus, they recommend, to avoid liability employers should purge workplaces of “blonde jokes” (on the plausible theory that they convey offensive attitudes towards women), 49 discussions of scenes from sex comedies such as “There’s Something About Mary” — “‘It’s exactly the sort of thing that could create a problem for somebody,´ says Carla Hatcher, a Dallas attorney who handles office sexual harassment cases” 50 — and Clinton-Lewinsky jokes. 51
–Excerpted with permission by author: Prof. Eugene Volokh, UCLA Law School
