by Gary Young
The National Law Journal
15 September 2003
Are sexual harassment law and the First Amendment on a collision course? If so, which one will give way?
A federal lawsuit that ended in a settlement last month poses those questions in a particularly sensational fashion.
On Aug. 15, the Minneapolis Public Library announced that it had agreed to pay $435,000 to 12 employees-lead plaintiff Wendy Adamson, five other librarians, five aides and a page-who accused the library administration of subjecting them to a hostile work environment by leaving them exposed to pornography.
On First Amendment grounds, library officials refused to intervene when patrons used library Internet stations to display sexually explicit material.
Adamson and her colleagues (11 of the 12 were women) claimed not only that they were exposed to objectionable material, but that the administration's laissez-faire attitude led to overt acts of harassment, such as catcalls, masturbation, physical threats and stalking by patrons.
The work environment greatly improved in 2000, when the administration finally reacted to their Equal Employment Opportunity Commission (EEOC) complaint, the employees said. But they pursued litigation in Minneapolis federal court for compensation for three years of suffering, among other reasons. The settlement brought
Adamson v. Minneapolis Public Library, No. 03-2521, to a close.
Some experts see the settlement as the victory of a common-sense interpretation of the First Amendment rights of library patrons. Others worry that it inches the legal system further along a slippery slope that will one day lead to the outright triumph of workplace rights over the First Amendment.
First of its kind
There has been wide speculation that employers may face liability if they fail to stanch offensive material injected into the workplace by third parties using the Internet, such as pornography spammers. The Minneapolis case appears to be the first in which an employer has actually paid out.
Robert S. Halagan, the Buffalo, Minn., solo practitioner who represented the 12 plaintiffs, said that the decision is the first of its kind of which he's aware.
Still, he dismissed the idea that he's set a precedent with far-reaching implications. "You won't see another case like it," he said, because other libraries have been willing to place reasonable restrictions on Internet use by patrons.
Law Professor Robert M. O'Neil, who directs the University of Virginia's Thomas Jefferson Center for the Protection of Free Expression, agreed with Halagan on that point. He said that the issue of whether a library can put restrictions on its patrons' choice of Internet material has largely been rendered moot by the U.S. Supreme Court's June decision in
U.S. v. American Library Ass'n Inc., No. 02-361.
In that case, the court upheld the Children's Internet Protection Act, a 2000 law that requires libraries receiving federal funds (virtually all of them, public and private, according to O'Neil) to use filtering software to prevent children from being exposed to pornography on the Internet.
The law allows libraries to disable such software when adults want to access a blocked site "for bona fide research or other lawful purposes."
Writing for a four-member plurality, with which two justices concurred, Chief Justice William H. Rehnquist wrote, "A library's need to exercise judgment in making collection decisions depends on its traditional role in identifying suitable and worthwhile material; it is no less entitled to play that role when it collects material from the Internet than when it collects material from any other source."
O'Neil conceded that material considered offensive on racial or religious grounds can also give rise to hostile work environment claims; The Internet protection act decision might not be dispositive in those cases, he added, since such material is less likely to be deemed harmful to children than pornography.
Even so, O'Neil said, "This kind of conflict is unlikely to arise again." He said that if such a complaint were filed in the future, most employers would take steps to remedy the situation.
"It's not censorship for a librarian to tap a patron on the shoulder, tell him that what he's viewing offends other patrons, and ask him to use a corner terminal," he said.
Eugene Volokh, a University of California at Los Angeles law professor currently visiting Harvard University, is not so sanguine about the impact of the Minneapolis settlement.
It's not that he thinks librarians should have no say in what gets displayed in public areas or that library administrations should be prevented from placing restrictions on what their patrons view.
What he finds troubling here is that it was "the threat of federal enforcement" that brought the library around to settlement. He worries that publicity from this settlement will lead other libraries to impose restrictions on Internet access, not because it makes good management sense, but because of that threat. "The federal government is pressuring the nation to adopt speech codes," he said.
Volokh argued that the danger of sexual harassment law trumping the First Amendment is not limited to public libraries, since private employers are also liable if they create or tolerate a hostile work environment. Finally, the danger is not restricted to libraries, since "every place is someone's workplace, whether it's a park, a library or an art museum," he said.
A hypothetical
To illustrate how bad things could get, Volokh offers the example of a private research library devoted to the medical aspects of sexuality. If librarians found offensive the images and texts they were required to handle, he suggested, the library would be required to restrict the free flow of information to avoid creating a hostile environment.
Volokh's proposed solution is to impose sexual harassment restrictions only on workplace speech that is one-on-one. "If a speaker says something to a recipient, and the recipient has made it known that the speech is offensive, then I see no great need for First Amendment protection," he said.
Adamson, who took the lead in organizing the protest against the Minneapolis library's policies, said that she understands Volokh's misgivings.
After seeing Volokh refer in print to "squeamish librarians," Adamson, who considers herself liberal, wrote to him to explain that she and her colleagues were not stereotypical, prudish librarians, and she has since carried on a correspondence with him.
Adamson said that when the library first installed terminals in 1997, "I was so excited about the Internet that I could hardly sleep at night." And while she admitted that she does not have a ready answer to Volokh's worst-case scenario, she added that Volokh has not answered her question: "What were we supposed to do?"
Adamson said that between 1997 and 2000, when she and her colleagues filed a complaint with the EEOC, the administration was so loath to interfere with the viewing choices of its patrons that it chastised a security guard for telling a 6-year-old boy that he shouldn't be looking at pornography.
She said that the library fell under occupation by about 25 "sex addicts" who came in every day to use the terminals, deliberately tried to embarrass and intimidate the staff, lured children into viewing pornography and made violent threats.
"I don't care how pristine the First Amendment is, you can't use it as an excuse for not running an institution in a responsible way," she said.
After Adamson and her colleagues filed their EEOC complaint and a television station ran an account, the library administration finally took action, she said.
The library took a number of steps, such as insisting that patrons pay a fee for printouts and moving terminals to a central location. In Adamson's view, the most effective measure was the posting of a notice at each terminal that the public display of obscenity violated Minnesota law: the 25 men "crawled back under some rock" and never appeared again.
In 2001, the EEOC ruled that there was probable cause to believe that a hostile work environment had existed before the library adopted its new policies. Although the U.S. Department of Justice declined to bring suit, it gave the go-ahead for the 12 employees to sue on their own.
Forging ahead
Halagan said his clients decided to proceed with litigation, despite improved conditions at the library, because they were entitled to compensation for three years of suffering, including chastisement by the administration "for daring to think that they had rights in this area."
He said that they did not want to work a financial hardship on the library, noting that the $435,000 settlement falls within the limits of the library's insurance policy.
A second motive for proceeding was "to send a message to other libraries that this is an issue they should take seriously."
The library's director, Katherine G. Hadley, who was appointed to that post earlier this year after the board of directors allowed her predecessor's contract to lapse, declined to address the specifics of the plaintiffs' allegations in the interest of "moving forward." But she added that she stood by the library's official settlement statement that it "regrets that it did not respond sooner to the charges presented."
Volokh has his supporters, but his position appears to be the minority view among scholars.
Feminist scholar Catharine MacKinnon, a law professor at the University of Michigan, wrote in an e-mail message, "The First Amendment does not protect sexual harassment at work in any form, including through pornography. The pornography that came into the librarians' workplace via the internet created a hostile environment for their work because they were women. This is sex-based abuse, not protected freedom."
Professor Miranda McGowan of the University of Minnesota Law School, who has written on the First Amendment implications of sexual harassment law, said, "Volokh ignores all the contextual factors that courts and people in the workplace pay attention to."
She claimed that those who see sexual harassment law as infringing the First Amendment conflate two things: what is considered speech in its ordinary sense and what is considered speech for First Amendment purposes.
A threat like "I'm going to kill you," while certainly speech in the ordinary sense, would often be considered more conduct-like than speech-like depending on the context in which it is delivered and thus might not be deemed entitled to First Amendment protection, she said. McGowan admitted that libraries, newsrooms and universities can pose troublesome issues, because institutions devoted to the give and take of intellectual debate may have to tolerate speech that would be considered objectionable on a factory floor.
But she pointed out that the conduct in the Minneapolis case went far beyond mere speech. In any event, she said, she is more confident than Volokh that workplaces and the courts will be sensitive to the contextual niceties.
David Oppenheimer, a professor at Golden Gate University School of Law and the author of a critique of Volokh's position, argued that sexual harassment is not the steamroller that Volokh makes it out to be.
Asked what he would do if he were an employer in Volokh's worst-case scenario, he said he would sit down with his employees and work out a compromise to let the library pursue its mission while respecting the feelings of employees who strongly objected to certain materials.
"Volokh underestimates what reasonable people can accomplish," he concluded.
© ALM Properties, Inc. 2003.
Republishing under US Copyright §107 Fair Use.
Read more: http://www.nationallawjournal.com/id=900005393712/No-smut-at-work-please
URL of this page:
