Sexual Harassment and Freedom of Expression

Sexual harassment can take two forms: (1) “quid pro quo” harassment, which means “something for something” which typically involves the what is known in universities as “lay or fail” or in workplaces as “lay or lay-off”; and  (2) “hostile environment” harassment that is said to exist when harassment creates hostility that makes the environment no longer conducive for a person to either work or study.

The first or the “quid pro quo” type does not pose much of a problem to “freedom of expression.” For while there are words involved, they are not protected speech or expression under the Bill of Rights.  What is restricted in regulations such as this is not speech or expression involved but the illegal nature of the action or transaction implied by the same –in this case the request or demand for sexual favors.  Thus, the speech component is only incidental to the illegal action proposed.

The second or the “hostile environment” type is troubling or problematic from the freedom of expression standpoint.  If confined to abusive demands for sexual favors, physical abuse such as unwanted touching (“chancing”) and targeted verbal harassment, it would have no collision with freedom of expression.  However, while a well-intentioned regulation, its scope has grown well beyond said things and has approached some type of offensive speech that is constitutionally protected.

Whether we like it or not, even sexists or male chauvinists have freedom of speech and expression.  It cannot be seriously disputed that in some work environments, humor and language are rough hewn and vulgar.  Green jokes and sexual conversation may abound.  But as long as there is no pattern of targeted and/or intentional verbal abuse, they cannot constitute sexual harassment without clashing with free expression rights.

Another problem is the nebulous and overbroad definition of “hostile environment” harassment.  For example, Atty. Jocelle Batapa, a Resource Speaker of the Delivery of Justice to Disadvantaged Women Coalition Project contends that under the R.A. 7877 (The Anti-Sexual Harassment Act of 1995), there can be an action or prosecution for “hostile environment” sexual harassment even without a request or demand for sexual favors.  However, the portion of R.A. 7877 that deals with “hostile environment” harassment cannot stand alone without the “quid pro quo” element because it does not define any act, much less as a crime or offense.  A broad definition of “hostile environment” sexual harassment such as “callous insensitivity to the experience of women” in one university manual or as “including behavior not overtly sexual but may be as subtle as a look” in another, leaves men of ordinary intelligence guessing as its meaning and differing as to its application.  By failing to clearly define or provide adequate notice of what constitutes illegal behavior, said law would “chill” freedom of expression.  How can mortal men avoid prosecution – except, of course, by not speaking?

Lastly, by aiming not just at harassing conduct, but also at offensive language, “hostile environment” harassment laws are violative of freedom of expression.  It is like saying that speech that shows animus against women is harassment and speech showing kindness is simply speech.  This is diametrically opposed to the basic principle of “content or viewpoint neutrality.” Justice Oliver Wendell Holmes, Jr. once wrote in Abrams vs. U.S. that “the ultimate good desired is better reached by free trade in ideas, — that the best test of truth is the power of the thought to get itself accepted in the competition of the market.”  Any regulation that restricts speech or language because it is offensive to women would always be unconstitutional, regardless of the setting because it threatens to alter the free marketplace of ideas.  While workplace speech may receive less protection than speech in a public forum, any restrictions that are placed may be done only on a viewpoint-neutral basis.  The speech or language may be offensive, but as Justice Hugo Black wrote in Dennis vs. U.S., freedom of expression is not for those “safe” or orthodox views which rarely need its protection.