Double Standards at Duke—and in the Courts

Double Standards at Duke—and in the Courts

February 24, 2008
Originally published in Point of Law

Recently, Stuart Taylor wrote about sexual double standards at Duke
University. Duke paid $3,500 to finance a performance by strippers and
prostitutes co-sponsored by the Duke Women’s Center at which scatological
obscenities were hurled and audience members were exhorted to chant “I take it
up the butt.” But earlier, Duke administrators denounced the Duke men’s lacrosse
team, claiming that even if they were guilty of nothing more than hosting
strippers at a private off-campus party, that that was an “appalling” act “bad
enough” to warrant their condemnation.

This sort of double standard is, unfortunately, common among
politically-correct academics and judges in the northeast. A good example is
Harvard, my alma mater, which tolerates sexually graphic and insulting speech
from women and minorities, even while punishing mildly off-color comments by
heterosexual males. Alysse McIntyre, a writer for the Harvard Law Record,
alternated in her weekly columns between graphically boasting about her sexual
exploits, both with her partners and her vibrator, and condemning men (like
Clarence Thomas) who were accused of similarly boasting about their own sexual
exploits (she was a big advocate of expanding the reach of sexual harassment law
to broadly regulate speech). A gay activist boasted in an undergraduate
newspaper about organizing and attending public “jack- and jill-off parties” at
which he and other gay activists would publicly masturbate. But straight male
undergraduates would receive a stern warning and “counseling” for creating a
“hostile educational environment” after being overheard telling relatively tame
sexual jokes (akin to the story of the traveling salesman and the farmer’s
daughter) that were overheard by female students.

This double standard also exists in court. In sexual harassment cases, courts
in New York treat sexually offensive materials as harassment based not on
whether they are aimed at an employee based on her sex – as the civil rights
laws’ language requires – but based on the prejudicial factor of whether the
accused belongs to a politically correct group. The New York-based Second
Circuit Court of Appeals is quick to hold private employers liable for “sexual
harassment” when their heterosexual male employees view pornography, as it did
in Patane v. Clark, 508 F.3d 106 (2007), where an employee was allowed to sue
her New York City employer because the man she worked under often looked at porn
in his own office. But when it’s gay porn, it’s a different story. In Brennan v.
Metropolitan Opera, 192 F.3d 310 (1999), the court held that continual public
display of gay pornographic depictions of men in the plaintiff’s workplace was
not sufficiently pervasive to constitute harassment or create a “hostile work
environment,” even though it admitted that the plaintiff “was exposed to them
every working day.”

(In neither of these cases was the porn aimed at the plaintiff based on the
plaintiff’s sex. The Second Circuit used to admit that speech, no matter how
vulgar, is not sexual harassment under federal law unless it occurs because of
the plaintiff’s sex. See Brown v. Henderson, 257 F.3d 246 (2d Cir. 2001). Other
courts continue to bar employees, even female employees, from suing for vulgar
speech if the speech was not aimed at them based on their sex. See Baldwin v.
Blue Cross, 480 F.3d 1287, 1301-02 (11th Cir. 2007)).

Ironically, although New York courts hold private employers liable when their
employees view porn (even when it is against employer policy), they themselves
are said to have done much to promote the widespread availability of hardcore
porn in public places in New York City, where porn and plastic genitalia can be
bought on the street. While they claim that a “reasonable woman” would find the
mere fact that a male co-worker looks at pornography in his own office so
offensive as to be “sexually harassing,” they inconsistently claim that even the
hardest of hardcore pornography is not offensive to New York City “community
standards,” and accordingly cannot be treated as obscene, even if juries (and
courts in other parts of the country) have found it to be obscene. A fairly mild
example is the Second Circuit’s ruling that the repulsive and degrading film
DeepThroat is not obscene in New York City. See United States v. Various
Articles of Obscene Merchandise, Schedule No. 2102, 709 F.2d 132, 137 (2d Cir.
1983).

The same New York courts that insist that sexually explicit material is
“harassment” when an employee passively views it in his office, simultaneously
insist that it is protected “art” entitled to public funding when it is
prominently displayed in a museum that receives taxpayer funds. A New York court
held that the Brooklyn Museum, which the City funded expressly for the benefit
of school children, was entitled to public funds despite despite prominently
displaying an exhibition that showed children with genitals attached to their
faces, and the Virgin Mary with dung and genitalia. See Brooklyn Institute v.
Giuliani, 64 F.Supp.2d 184 (E.D.N.Y. 1999).

This glaring disparity cannot be rationalized away by saying the museums are
not covered by harassment law, or that pornography only is sexually harassing
when it affects a “work environment,” since New York courts have extended sexual
harassment law into every nook and cranny of society. Museums are public
accommodations, and New York state law bans sexual harassment in public
accommodations and conduct that creates a “hostile public accommodation
environment.” See D’Amico v. Commodities Exchange, 235 A.D.2d 313 (1997). While
the government should not be allowed to ban exhibits like the one at the
Brooklyn Museum, doing so would unfortunately be entirely consistent with the
broad definition of sexual harassment applied by New York courts.

(Moreover, the sexually offensive Brooklyn Museum exhibit attracted religious
bias claims from groups like the Catholic League for Religious and Civil Rights,
and antidiscrimination laws have long prohibited religious harassment, not just
sexual harassment. See Venters v. Delphi, 123 F.3d 956 (7th Cir. 1997). While
New York courts have consistently turned a blind eye to the serious free speech
issues raised by harassment law, other courts have rightly recognized that
religious-harassment rules can raise thorny civil-liberties issues, as the
Oregon Supreme Court did in Meltebeke v. B.O.L.I., 903 P.2d 351 (Or. 1995),
which overturned a fine for religious harassment imposed on a speaker who
unintentionally offended an employee through his religious proselytizing.)

Nor can the double standard be justified by saying that arts funding is
entitled to greater protection than employee speech. That is a false premise.
The government cannot force a private employer to punish employees for protected
speech, as the Fourth Circuit ruled in Korb v. Lehman, 919 F.2d 243 (1990), and
as UCLA Law Professor Eugene Volokh has demonstrated in depth. By
contrast, the government has a freer hand in funding speech than banning it, and
can refuse to fund some speech even if it is protected by the First Amendment.
Thus, the government can consider whether art offends “general standards of
decency” in deciding whether to fund it, even though indecent art is protected
by the First Amendment, as the Supreme Court ruled in NEA v.
Finley, 524 U.S. 569 (1998). As Judge Kleinfeld observed in the NEA
case, it makes little sense for courts to force taxpayers to fund patently
disrespectful art, even as they punish employers for failing to fire
disrespectful employees.

Finally, it can’t be justified based on the claim that sexually explicit
displays are less offensive when they occur outside the workplace.
Unfortunately, courts typically require fewer offensive incidents to establish a
“hostile public accommodation environment” than do for a “hostile work
environment” claim. From my experience dealing with harassment cases – including
a stint at the federal Office for Civil Rights – I can tell you that many people
find sexually-explicit displays just as offensive when they are labeled “art” as
when they are not, and offensive even when they are found in a public space that
they frequent—like a college art gallery—rather than in a private workplace. The
First Amendment may bar harassment claims based on such “art,” but only because
it limits the reach of harassment law itself, not because such displays do not
offend viewers.

Politically-correct double standards aren’t unique to sexual harassment law.
Glaring disparities also exist in how New York and New Jersey courts handle
cases in areas ranging from family law to privacy law and employment law.