When Freedom is Not Free: Investigating the First Amendment's Potential for Providing Protection Against Sexual Profiling in the Public Workplace

33 Pages Posted: 11 Nov 2009 Last revised: 1 Dec 2009

See all articles by Michele Alexandre

Michele Alexandre

University of Mississippi - School of Law; University of Mississippi

Date Written: Winter 2009

Abstract

This article explores the ways in which bodily expression can constitute symbolic speech that courts should protect pursuant to the First Amendment of the Constitution. In a previous article, I referred to this type of bodily speech as “body protest.” Body protest can refer to actions that individuals undertake to assert their autonomy, identity, and freedom from societal restrictions. For women, body protest may be used “to challenge gender restrictions and to activate women-centric legal reforms.” For example, women may express body protest through dance, dress, or performance arts. These individuals are often sexually profiled because of how they use their bodies. This article analyzes the sexual profiling issues inherent in grooming cases within the context of First Amendment jurisprudence in the public employment sphere and argues that the First Amendment's protection of freedom of expression offers a basis to expand upon personal rights in grooming cases.

The goal of this article is to argue that by placing body protest and other expression that occurs in public employment appropriately within the scope of the First Amendment, society can eradicate widespread gender bias in the workplace. Part I of this article discusses why the First Amendment should be strengthened as a cause of action in gender-based grooming cases. Part II presents evidence of sexual profiling in rape cases, which reflect society's attitudes towards women's grooming choices. Parts III and IV analyze sexual profiling in the workplace, the treatment of gender-based grooming policies and sex stereotyping under Title VII, and the utilization of conduct as gender-based expression under the First Amendment. Part V *378 seeks to reconcile sexual profiling claims brought under the First Amendment with Supreme Court jurisprudence from Pickering v. Board of Education, Connick v. Myers, and Garcetti v. Ceballos. And last, Part VI considers the possibility of learning by analogy from the sexual orientation cases.

Suggested Citation

Alexandre, Michele, When Freedom is Not Free: Investigating the First Amendment's Potential for Providing Protection Against Sexual Profiling in the Public Workplace (Winter 2009). William & Mary Journal of Women and the Law, Vol. 15, No. 2, 2009. Available at SSRN: https://ssrn.com/abstract=1465840

Michele Alexandre (Contact Author)

University of Mississippi - School of Law ( email )

Lamar Law Center
P.O. Box 1848
University, MS 38677
United States

University of Mississippi ( email )

Oxford, MS 38677
United States

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