Social and Political Commentary
Likewise, one court has said that coworkers’ use of job titles such as “foreman” and “draftsman” may constitute sexual harassment, 31 and a Kentucky human rights agency has gotten a company to change its “Men Working” signs (at a cost of over $35,000) on the theory that the signs “perpetuat[e] a discriminatory work environment and could be deemed unlawful under the Kentucky Civil Rights Act.” 32
Another court has characterized an employee’s hanging “pictures of the Ayatollah Khome[i]ni and a burning American flag in Iran in her own cubicle” as “national-origin harassment” of an Iranian employee who saw the pictures. 33
In another case, the EEOC concluded that an employer had racially harassed a Japanese-American employee by:
- creating an ad campaign that used images of samurai, kabuki, and sumo wrestling to refer to its Japanese competition
- referring to the competition in internal memos and meetings using terms such as “Jap” and “slant-eyed.”
There were no allegations that the slurs were used to refer to the complaining employee (though it’s of course understandable that he found them offensive). Curiously, the EEOC did not focus exclusively or even primarily on the slurs; it seems to have viewed the ads themselves as being as offensive — and as illegal — - as the slurs. The case was finally settled “for undisclosed monetary terms and other commitments.” 34
Similarly, the Office of Federal Contract Compliance Programs (OFCCP) characterized anti-veteran postings at Ohio State University as harassment based on Vietnam-era veteran status:
OFCCP’s onsite review revealed that the University had not maintained a working environment free of harassment, intimidation and coercion based upon covered veteran status for special disabled veterans and veterans of the Vietnam Era. For example, in one of the departments Professors displayed inflammatory pictures and postings, offensive to Vietnam era veterans on their office windows facing the corridors.
But a Vietnam era veteran was required to remove a poster considered offensive by members of a non-protected group. During the most recent military action of Operation Desert Storm, the negative attitude toward Vietnam era veterans became vocal. Complaints regarding the offensive postings and verbal harassment were brought to the attention of University Executives… . However, no action was taken to effect change prior to OFCCP’s review. [This constitutes a v]iolation of 41 CFR 60–250.4(a) [ban on discrimination against veterans] and 41 CFR 60–250.6(a). 35
Offensive union-related speech can also lead to harassment liability. Thus, in Bowman v. Heller, an employee who disliked a certain female candidate for union office gave some of his coworkers a Hustler centerfold with the candidate’s picture superimposed over the model’s head. The trial court concluded that this constituted sexual harassment of the candidate. (An appellate court agreed that the speech was constitutionally unprotected, but reversed the harassment portion of the judgment on unusual state-law grounds.) 36
The NLRB has likewise suggested that it would be racial harassment for employees to use the words “Spics, Kikes, and Broads” to criticize the president of the employee union. 37 And courts are not bashful about this. The Sixth Circuit put it quite plainly:
In essence, while [harassment law] does not require an employer to fire all “Archie Bunkers” in its employ, the law does require that an employer take prompt action to prevent such bigots from expressing their opinions in a way that abuses or offends their co-workers. By informing people that the expression of racist or sexist attitudes in public is unacceptable, people may eventually learn that such views are undesirable in private, as well. Thus, Title VII may advance the goal of eliminating prejudices and biases in our society. 38
–Excerpted with permission by author: Prof. Eugene Volokh, UCLA Law School
