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Directions in Sexual Harassment Law$
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Catharine A. MacKinnon and Reva B. Siegel

Print publication date: 2003

Print ISBN-13: 9780300098006

Published to Yale Scholarship Online: October 2013

DOI: 10.12987/yale/9780300098006.001.0001

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Free Speech and Hostile Environments

Free Speech and Hostile Environments

(p.437) 26 Free Speech and Hostile Environments
Directions in Sexual Harassment Law

Jack M. Balkin

Yale University Press

This chapter describes how some commentators argue that the First Amendment conflicts with sexual harassment law. These objections generally focus on employer liability for hostile environments. Hostile environments stem from individual acts of discriminatory speech and other conduct by all the persons who inhabit a workplace, including managers, employees, and even, occasionally, clients and customers. A hostile environment exists when “the workplace is permeated with ‘discriminatory intimidation, ridicule, and insult’ that is ‘sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment.’” Some of this behavior may be directed at particular employees; other elements may be directed at no one in particular but may contribute to fostering an abusive environment.

Keywords:   employer liability, hostile environments, discriminatory speech, discriminatory intimidation, victim's employment, abusive working environment

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