The Speech-ing of Sexual Harassment

Abstract:     
Although a great deal of sexual harassment takes place without words, even more of it does not. Whether it be the words that are used to make the kind of "quid pro quo" proposition that characterizes the classic if-you-sleep-with-me-you-will-not-get-fired form of sexual harassment, or the catcalls and other words of taunting that create the archetypal hostile environment, a vast amount of what uncontroversially counts as sexual harassment under the law takes place through the use of what would be called "speech" in the ordinary, non-technical, non-legal, non-First-Amendment sense of that word. Historically, much of this speech has not been considered "speech" in the First Amendment sense, but more recently both the professional and public discourse has begun to apply First Amendment tools to what had previously been considered conduct well outside the precincts of the First Amendment. This paper traces this shift, and offers some possible explanations for the "speech-ing" of sexual harassment.

Note: This is a description of the paper and not the actual abstract.

Accepted Paper Series