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. Traditionally, sexual harassment using words was treated as sexual harassment and not the kind of speech with which the First Amendment was concerned. More recently, however, what had previously been treated as pure sexual harassment has been sociologically transformed into the kind of speech that implicates the First Amendment, and this paper explores the way in which the transformation has occurred, and the consequences of the transformation.