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Employers would rather be prudish than sued

Published Oct. 2, 2005

A picture of a woman's bare breasts recently stopped the presses at a Virginia-based printing company. The company, Cadmus Journal Services, refused to print the nude photo because it was viewed as objectionable to employees.

The customer, in this case, was Editor & Publisher, the newspaper industry's trade publication, and the magazine responded by describing the incident in its Oct. 11 edition and questioning whether it should procure another company for its printing. It should, but good luck finding one. With the insidious reach of laws that make sexual harassment illegal, E&P's experience typifies the skittishness of employers when dealing with sexually-oriented material.

E&P was publishing an article on a new Arizona law that makes it illegal to sell from news racks material that's "harmful to minors." The Phoenix vice squad had confiscated about 15 news racks of the sexually-oriented weekly newspaper, The Beat. The graphics accompanying the story showed examples of The Beat's content in order to illustrate precisely what authorities were objecting to. Cadmus Journal Services balked at one photo of a topless woman, telling E&P it wouldn't print the page because to do so would offend its staffers. Jim Hillsman, Cadmus' vice president of sales, told E&P that the plant employs hundreds of women and the photo "is offensive to enough people _ men and women _ that we honestly don't want to alienate our employees."

What shocked E&P's publisher even more was that he went shopping for another printer to handle the photo and the two companies he approached refused as well. "These are printers who owe their existence to the First Amendment," Phillips told E&P. "(Are printers saying that) it is more important to them to placate their employees than to refuse to censor material protected by the same First Amendment that protects them?"

Sad to say, but the short answer is "yes," and the reason has more to do with financial liability than morals. E&P's predicament is not news to anyone who has been following developments in sexual harassment law. Every utterance, every gesture, every wink of an eye is fodder for lawsuits these days. The result is that employers are rigidly controlling their workplaces, policing even the actions of their customers.

In 1980, the Equal Employment Opportunity Commission issued guidelines on sexual harassment that add customers to the list of bosses and co-workers as people who can cause an illegal "hostile work environment." Employers were made liable for the way their patrons treat employees if the employer knows or should have known about the offensive conduct and fails to correct the situation.

If an employee feels as though the work environment is sexualized in any way, even when it is not a result of conduct by people directly under the employer's control, she (and it's usually a she complaining) nonetheless can claim a violation of federal law.

No wonder these companies refused to print material that is mildly pornographic but otherwise perfectly legal and constitutionally protected; they can get sued by their workers for doing so.

This has all gotten way out of hand. Sexual harassment has been defined by the courts so broadly that employers jump at any sign of bawdiness, no matter the context.

The results would be comical if they weren't true. Cases involving sexual harassment by a customer range from cocktail waitresses at bars complaining that their uniforms are too sexually provocative, encouraging disrespect from customers, to a Las Vegas blackjack dealer who actually sued her employer because male patrons were staring at her.

Can you imagine Hooters waitresses complaining that the uniforms their employer forced them to wear were too provocative or that they caused men to stare? That's the point of those screaming orange shorts (what there is of them). Yet under federal law Hooters girls and every cocktail waitress who receives unwelcome come-ons or comments can sue their employer for damages.

Of course, if these very same sexist comments were said on the street, they would not only be legal but constitutionally protected. In this way, laws prohibiting a hostile work environment have been used to undermine the First Amendment. Sexual banter is now verboten in workplaces not because this is the decorum choice of the employer but because federal law requires it.

So far, courts have not recognized this creeping incursion into freedom of speech. Courts have not been willing to see sexual harassment law as a form of censorship. But it obviously is.

It may seem trivial. After all, who cares about protecting boorish jokes and dirty language? But the principle at stake is fundamental to our basic freedoms. Whenever the government sets rules on language for private citizens, it is engaging in censorship. When the law acts to protect some women from feeling uncomfortable at work, it is by definition granting to government the power to dictate what words and pictures are acceptable there.

Any rational employer reading about the $875,000 verdict in the sexual harassment case of Capt. Tammy S. Blakey, a Continental Airlines pilot who sued because sometimes the cockpit in which she worked had nude pictures, would be hesitant to decorate his office with his favorite nude by 17th century artist Peter Paul Rubens. He would be rightly concerned that maybe this year the government won't find Rubens appropriate workplace decor.

With things as they are, E&P shouldn't have been surprised when Cadmus Journal Services declined to print a nude picture. It was just doing what the government ordered.