3. MATERIALES Y MÉTODOS
3.2. MÉTODOS
3.2.3. Hidrología e Hidráulica de la Quebrada Llocllamayo
Hew York Times actual malice fault standard applied to
emotional distress cases brought by public figures or
public officials.* The defamation context meaning of
actual malice* not being wholly appropriate to the emo
tional distress context where a parody was at issue, the Court tailored the standard by adding that the plaintiff must also prove that defendant made a "reasonably believ
able" false statement of fact.*
The relevance of Falwell to any emotional distress
case turns on the determination of whether the plaintiff is
a public figure or public official. To this extent, the
discussion in Chapter 4 is also relevant, as it considers
the still relative scarcity, but increasing numbers, of
women in such public roles, as well as the great extent to which their sexuality is commonly a point of denigration when they are.
3 . The Sexual Harassment Analysis. The strengthening of sexual harassment and sexual discrimination laws in recent years has to some extent empowered women to take legal action when they are victimized by sexually hateful
speech in the work-place. Catharine MacKinnon has long
sought to focus attention on the fact that much sexual
* 485 U.S. 46 (1988).
* Id. at 56.
* The New York Times meaning applicable to the defamation context is publication "with knowledge that the statement is false or with reckless disregard as to whether
or not it was true." Id. at 56.
harassment is verbal, and she would apparently have few qualms about prohibiting it, believing as she does that the very real harm to victims outweighs any abstract interest
in free speech.^ MacKinnon observed in her most recent
book, Onlv Words, that sexual harassment law has proved the most successful strategy for dealing with much sexually hateful speech.^
Other commentators, however, would maintain the First
Amendment's preeminence, even in the work-place. That is,
most libertarians would restrict sexist speech either not at all or only if one or both of the following factors is
present: (1) the speech is directed at a specific person;
(2) the speech creates an "abusive, hostile or offensive [working] environment" such that "terms and conditions of
employment" are based on sex.^ In 1986, the U.S. Supreme
Court in Meritor Savings Bank v. Vinson, without engaging
in any First Amendment analysis, determined that the presence of these factors brings such speech within the sex discrimination prohibition of Title VII.
While Meritor has rightly been considered a major
victory for women, it arguably did not go far enough.
Meritor requires a pattern of harassment sufficient to create a hostile working environment; isolated instances of
^ Ca t h e r i n e Ma cKi n n o n, Fe m i n i s m Un m o d i f i e d, ch. 9 (1987);
see also Volokh, Workplace Harassment, supra note 7, at
1809-18.
Ca t h e r i n e Ma cKi n n o n, On l y Wo r d s, ch. 2 (1993) .
^ Meritor Savs. Bank v. Vinson, 477 U.S. 57 (1986); see generally Note, An Equitable Liability Standard for Offensive Work Environment Claims Under Title VII: Meritor
Savings Bank v. Vinson, 29 B . C . L . Re v. 509 (1988); Note,
Employer Liability Under Title VII for Sexual Harassment after Meritor Savings Bank v. Vinson, 87 Co l u m. L. Re v. 1258
(1987); see generally Eugene Volokh, Freedom of Speech and
Appellate Review in Workplace Harassment Cases, 90 No r t h w e s t
e r n U. L. Re v. 1009 (1996) [hereinafter Volokh, Appellate
Review]; Volokh, Workplace Harassment, supra note 7.
Meritor, 477 U.S. at 63-67; see Browne, Title VII as Censorship, infra note 176.
harassment, particularly if they are verbal only, are
almost always insufficient to meet the testJ®* Meritor
may be contrasted with courts' greater sensitivity and
receptivity to the redress of race-related harms. As
Professor Jean Love has queried, ” [a]re not isolated sexual epithets every bit as degrading as isolated racial or ethnic e p i t h e t s ? O b s e r v i n g that the latter are more
frequently accorded legal redress, she opined that
"[s]urely these sexual epithets cause the same type of adverse impact on the victim's sense of self-esteem,o and they reinforce the same types of historical patterns of oppression as racial or ethnic epithets.
In the Swentek case, discussed above, one of the
defenses asserted against Ms. Swentek's suit was that she had used "foul language" with sexual innuendo in the past, the implication being that defendant Ludlam's comments could not have been unwelcome to a woman "like this", apparently meaning one of her character as the court judged it, even though she asserted she had told Ludlam to leave her a l o n e . T h e federal district court found the argu ment convincing, as the judge observed that Swentek "was the kind of person who could not be offended by such comments and therefore welcomed them g e n e r a l l y . T h e appellate court disagreed, stating that the plaintiff's use of foul language or sexual innuendo in a consensual setting
101 Meritor, 477 U.S. at 67.
Jean Love, Discriminatory Speech and the Tort of
Intentional Infliction of Emotional Distress, 47 Wash. & Lee L. REV. 123, 140 (1990).
Id. (citation omitted). Professor Love was
specifically discussing section 6-103(b) of the Model
Communicative Torts Act, the common law tort of intentional infliction of emotional distress, and Title VII sexual harassment suits.
830 F.2d 552, 557 (4th Cir. 1987).
does not cause her to forfeit her legal protections against sexual harassment.
The more recent case of Carr v. Allison Gas Turbine
Division of General Motors^^ is similarly heartening for
women. There the plaintiff, the first female drill opera
tor to work in the tinsmith shop, was the target of daily
comments such as "I won't work with any cunt.” She was
also referred to, in her presence, as "whore,” "cunt," and "split tail." The word "cunt" was painted on her toolbox, and the seat was cut out of her overalls.
They festooned her tool box and work area with signs, pictures, and graffiti of an offensive sexual character, hid and stole her tools, hid her toolbox, hung nude pin-ups around the shop, and would strip to their underwear in front of her when changing in and out of their work clothes. One of them placed an obscene Valentine Day's card, addressed to "Cunt" on her toolbox. The card shows a man carrying a naked woman upside down, and the text explains that the man has finally discovered why a woman has two holes-
-so that she can be carried like a six-pack. A
worker named Beckham twice exhibited his penis. . . . And it was Beckham who told Carr on anoth er occasion that if he fell from a dangerous height in the shop she would have to give him "mouth to dick" resuscitation.^*
The defendant argued that her co-workers' behavior had not been unwelcome to Carr, whom it described as "vulgar." Carr had used words such as "'fuck head' and 'dick head,' once placed her hand on the thigh of a young male worker.
Id. at 557 (citing Katz v. Dole, 709 F.2d 251 (4th
Cir. 1983)); see also Burns v. McGregor Electronic Indus
tries, Inc., 807 F.2d 506 (8th Cir. 1993) (stating that plaintiff's decision to pose for a nude magazine outside work hours was not material to issue of whether she found her employer's work-related conduct offensive; court stated that "Burns did not tell sexual stories or engage in sexual
gestures at work. She did not initiate sexual talk or
solicit sexual encounters with co-employees."). 32 F.3d 1007 (7th Cir. 1994).
and, when shown a pornographic picture and asked to point out the clitoris, o b l i g e d . J u d g e Posner for the major ity scoffed at the suggestion that this behaviour altered
the dynamic, noting that he had "trouble imagining a
situation in which male factory workers sexually harass a
lone woman in self-defense as it were . . . It is incredi
ble on the admitted facts. Noting that Carr had re
peatedly complained to supervisors about the harassment and stating that "[o ]f course it was unwelcome," Posner derided the trial court judge's finding that, had she been "lady
like," the co-workers would have left Carr alone.
These appellate courts' rulings are somewhat hearten ing to women because the courts refused to accept the fallacy of the Madonna-whore dichotomy, classifying women as either vestal virgins on pedestals or immoral women unworthy of legal protection— and granting them legal
rights and protection a c c o r d i n g l y . Nevertheless, there
Id. at 1010.
Id. at 1011 (emphasis original).
Ill Id.
See Po r n o g r a p h y a n d Ce n s o r s h i p (Copp & Wendell, eds.)
at 71 (1983). The so-called "Madonna-Whore" dichotomy is
a way of explaining (or at least expressing) how men view women and categorize them.
The 'respect' that men have traditionally be lieved they have for women — hence a respect they can lose — is not a general respect for persons as autonomous beings; nor is it respect that is earned because of one's personal merits
or achievements. It is respect that is an out
growth of the 'double standard.' Women are to be respected because they are more pure, delicate, and fragile than men, have more refined sensibil
ities, and so on. Because some women clearly do
not have these qualities, and thus do not deserve respect, women must be divided into two groups — the good ones on the pedestal and the bad ones
who have fallen from it. One's mother, grand
mother, Sunday School teacher, and usually one's
wife are 'good' women. The appropriate behavior
by which to express respect for good women would be, for example, not swearing or telling dirty jokes in front of them, giving them seats on
are many cases finding to the contrary on similar facts. In Meritor the Supreme Court ruled that evidence of the plaintiff's "provocative speech and dress was relevant in determining whether she welcomed sexual advances from her
supervisors.""4 The appellate court in Swentek distin
guished that case, noting that Mechelle Vinson had worked with her supervisor daily and thus her dress and daily conversations were relevant in determining her attitude
toward his sexual a d v a n c e s . A s the Swentek court ob
served, the alleged incidents of Ms. Swentek's use of foul
buses, and other 'chivalrous' acts. This kind of 'respect' for good women is the same sort that adolescent boys in the back seats of cars used to
'promise' not to lose. . . . It has now become
commonplace to acknowledge that, although a place on the pedestal might have advantages over a place in the 'gutter' beneath it, a place on the pedestal is not at all equal to the place occu pied by other people (i.e. men). 'Respect' for those on the pedestal was not respect for whole, full-fledged people but for a special class of inferior beings... [This male respect] is half-hearted respect for lesser beings, some of whom they feel the need to glorify and purify.
See also Cathy Young, The New Madonna/Whore Syndrome: Feminism, Sexuality and Sexual Harassment, 38 N.Y.L. Sc h. L.
Re v. 257 (1993); Sh u l a m i t h Fi r e s t o n e, Th e Di a l e c t i c o f Se x: Th e
Ca s e f o r t h e Fe m i n i s t Re v o l u t i o n 128-32 (1970) ; Su s a n n e Ra p p e l e r, Th e Po r n o g r a p h y o f Re p r e s e n t a t i o n 67 (1986) ; Da v i d L. Ki r p, Ma r k g . Yu d o f, a n d Ma r l e n e St r o n g Fr a n k, Ge n d e r Ju s t i c e, ch. 2 (1986) .
This dichotomy is implicit in a recently suggested "test" for whether any given comment would be considered sexual harassment: Would you say it to your mother, sister
or daughter? If not, do not say it to any other woman.
The point is, if you would not say something to one of these "nice" or "good" girls/women you should not say it to
any woman, not even one you might consider less virtuous
than your mother, sister or daughter. See Volokh, Appel
late Review, supra note 99, at 1015 (citations omitted).
See, e.g., Reed v. Shepard, 939 F.2d 484 (7th Cir.
1991); Loftin-Boggs v. City of Meridian, 633 F.Supp. 1323
(S.D.Miss. 1986), aff'd 824 F.2d 971 (5th Cir. 1987), cert.
denied, 484 U.S. 1063 (1988).
Meritor Savs. Bank v. Vinson, 477 U.S. 57, 69
(1986).
language and sexual innuendo had not occurred in the presence of Ludlam, and no evidence of his knowledge of
them was presented. Based on this evidence, and consider
ing that Swentek had told Ludlam his behaviour was unwel come, the court determined that the trial judge's determi nation that Ludlam's behaviour was "not unwelcome" was an improper one.”®
Another recent U.S. case to deal with while not expressly acknowledging the conflict between Title VII's sexual harassment precedent and the First Amendment,
Robinson v. Jacksonville Shipyards, Jnc.,”^ was brought by a female employee of a Florida shipyard, alleging that her male colleagues had sexually harassed her, in violation of
Title VII. She complained about their hanging photos of
nude women in the work-place, as well as by their lewd
comments.”8 whether the comments were actually directed
at the plaintiff was disputed, but they included remarks such as "I'd like to get in bed with that" and "Hey,
pussycat, come here, and thus seem to have been direct
ed at someone. The U.S. district judge ruled in favour of
Id. at 556-57. This seems consistent with Burns,
807 F.2d 506 (8th Cir. 1993).
760 F.Supp. 1486 (M.D. Fla. 1991), discussed in,
Amy Horton (Comment) Of Supervision, Centerfolds, and
Censorship: Sexual Harassment, the First Amendment, and the Contours of Title VII, 46 U. Mi a m i L. Rev. 403 (1991).
See Harassment, free speech collide in Florida, USA
Today, Int'l ed., Nov. 21, 1991, at 8A; Gender issue begins
to bend back. The Times (London), Nov. 21, 1991. See also
EEOC Compliance Manual (CCH) §614, 5 3114(C)(1), at 3274 (1990)(a "workplace in which sexual slurs, displays of 'girlie' pictures, and other offensive conduct abound can constitute a hostile work environment, even if many people deem it to be harmless and insignificant.")
the woman, ordering that the posters be removed and the smutty jokes ceased.
Some have characterized speech such as that in Jack
sonville Shipyards as within a "gray area"— offensive but
not threatening. A cogent argument can be made, however,
that it is indeed threatening to the women exposed to it, especially those exposed to it regularly, day in and day
out. Not only are the dignity and self-esteem of these
women threatened, so may be their health and their jobs. The prevalence of rape and sexual assaults is not taken
lightly by women, and it is offensive for a male-dominated judiciary to assume that "I'd like to get in bed with that" is not t h r e a t e n i n g . A d d i t i o n a l l y , female employees may be considered a captive audience, unable to escape the harassment — even if it is non-targeted — without giving up their jobs.
The most recent U.S. Supreme Court case to take up the
sexual harassment issue is Harris v. Forklift Systems,
The female plaintiff in Harris was harassed by the
company president who, in the presence of other employees, told her that she was a "dumb ass woman," and suggested that they "go to the Holiday Inn to negotiate [her] raise." Among other things, he also asked Harris to get coins from his front pants pocket, and he made sexual innuendoes about Harris's and other women's clothing. As in preceding Title
Cf. Rabidue v. Osceola Refining Co., 805 F.2d 611,
620-22 (6th Cir.1986) (sexually oriented poster displays
had a de minimis effect on work environment) ; infra text
accompanying notes 154-55, 159-60 (discussing Stewart v. Cleveland Guest (Engineering) Ltd.)
See generally Jane E. Larson, Third Wave— Can Feminists Use the Law to Effect Social Change in the 1990s?
87 No r t h w e s t e r n U. L. Re v. 1252, 1257 (1993) (discussing Linda
Hirshman's writing) ; see also A We e k i n t h e Li f e o f Am e r i c a,
supra note 7, at 7; Fentonmiller, Verbal Harassment as Equality Depriving Conduct, supra note 6, at 577 (discuss ing Andrews v. City of Philadelphia, 895 F.2d 1469 (3d Cir. 1990)).
VII cases, the Court was silent about First Amendment implications for the case, even though the basis of the
complaint was speech and expressive conduct. Instead, the
Court's opinion was focused entirely on the harm of sexual
harassment. The court wrote that the harm of hostile
environment sexual harassment was the presence of a "discriminatorily abusive work environment" and that the harm of sexual harassment is the harassing behavior or words themselves, not whatever tangible effects, economic or psychological, on the v i c t i m . T h u s the Court ap peared to recognize the equality-depriving effect of a hostile-work environment, even apart from the usually attendant tangible harms.
4. Pornography as Hate Speech. As the debate about what protection should be afforded hate speech has intensi
fied, parallels between this type of offensive speech and another type— pornography— have begun to be identified.^* After all, many feminists would argue that pornography is