einhverfr's Journal: Pornography, Sexual Harassment, and Free Speech

Conventional wisdom, backed by court judgements, hold that allowing pornography to be visible in most workplaces constitutes sexual harrassment and is discriminatory against women. In this piece, I explore a counter-argument to this widely held belief. While I think workplaces are for working, and while it may be wise for a corporation even without threat of lawsuit to avoid allowing porn in the workplace, I think the courts have taken this too far and are further undermined by changing demographics in the consumption of pornography.

We have all heard that pornography is degrading to women, and courts have held that this is sufficient basis for a Title VII claim of sexual harassment. This premise, though, tends to be tied to the idea that pornography reduces women to sexual objects, and that allowing such depictions in most workplaces (obviously excluding pornography-related businesses) constitutes sexual discrimination (Title VII harassment claims are technically discrimination claims). This is a case where we start with the premise and assume the conclusion based on it. After all, it is incredibly difficult to determine what "degrading" means in an objective, legal sense and hence personal prejudices can be substituted for objective fact-finding. The EEOC, for example their definition of sexual harassment which includes any display of "materials that are in any way sexually revealing, sexually suggestive, sexually demeaning or pornographic." This definition of course, not only includes the playboy centerfold but also Leonardo Da Vinci's painting "Leda and the Swan" (which in the context of Greek myth is quite sexually suggestive as well as being sexually revealing even in the absence of such context).

Fortunately, the courts have been somewhat critical of these claims. In Robinson v. Jacksonville Shipyards, the pornography in the workplace was supporting evidence for the claim but other factors included the fact that individuals were placing such images in the plaintiff's toolbox and that there was other harassing conduct involved as well. In this case one might conclude that the mere presence of pornography was not sufficient to raise sexual harassment claims, but the overall environment was quite hostile (and even personally directed). Other cases I have been able to find have not been willing to find harassment on the mere basis that pornography was present in the workplace. However, what is troubling about the Robinson case is how the court's mandated sexual harassment policy banned all pornographic images in that workplace by court order.

Fortunately (at least from my point of view), personal prejudices of this sort are actually on their way out. One recent study concluded that around a third of all who purchased porn on websites were women. (While this site is probably not unbiased, the findings seem aggregated from proper studies.) When we do the math it turns out that nearly a third of women end up being porn consumers, and women are a rapidly growing demographic among porn consumers. Violet Blue, in her book, "The Smart Girl's Guide to Porn" argues that socially, we are moving towards gender parity in porn consumption.

What this means is that currently, a very large minority of women do not see pornography as sufficiently degrading to stop purchasing it. If pornography consumption is really approaching gender parity it seems silly to argue that displaying it is somehow discriminatory. However, courts tend to be methodologically conservative and may take some time to convince that such is not evidence of discrimination by itself.

UCLA Law Professor Eugene Volokh has written a very interesting article asking what speech is actually restricted in hostile work environment harassment law. One of the important points he brings to the table is the fact that most employers will err strongly on the side of caution to avoid being sued. This means that political and social debate. In particular he points out that:

Your answer would probably have to be "We won't know until it gets to court." With vague words like "severe," "pervasive," "hostile," and "abusive," that's generally all you can say. And because of this, the safe advice would be: "Shut the employees up." After all, the typical employer doesn't profit from its employees' political discussions; it can only lose because of them. The rational response is suppression, even if the lawyer personally believes that the speech probably doesn't reach the severe-or-pervasive threshold.[citations and footnotes omitted]

The result is that a definition of discrimination is fostered by our courts and government based on false premises which do not match the data on the ground. (The problem with the Court decisions is that it is difficult to know beforehand what will constitute harassment and hence employers have a strong desire to avoid anything possibly questionable.) This runs against basic first amendment protections and creates a substantial level of chilling speach. Worse, the same sorts of restrictions come into play in public accommodation harassment cases, where customers feel that the business is hostile towards them on account of protected categories. The result is a direct infringement on our ability to speak and advocate freely.

IMO, the solution is to provide proper protections for Constitutionally protected speech (including Pornography) and require that this be further balanced against any functionally discriminatory elements before suits can go forward. Furthermore, I think the Constitutional protections should be far stronger when applied to public accommodation harassment law instead of workplace harassment.

Tomorrow: Why the obscenity exception has to go (or at least be narrowed).