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.