“Actions as Words, Words as Actions: Sexual Harassment Law, the First Amendment and Verbal Acts


The article examines the tension between the hostile work environment under the civil rights laws and the First Amendment’s protection of free speech, even when such speech is offensive and even discriminatory. After discussing the tension and its limits, the author examines other rationales proposed to resolve this tension, and rejecting them as unsatisfactory. Noting that hostile work environment doctrine, as a variable standard, employs a less “bright-line” approach than is typical of the First Amendment’s rule, the author nonetheless finds that the “open texture” of all rules, and the requirement that a hostile work environment be systematically pervasive or severe brings the conduct prohibited within the scope of “verbal acts” and thus is roughly consistent with the First Amendment.


Civil Rights and Discrimination | Constitutional Law | Human Rights Law | Law and Gender | Law and Society | Public Law and Legal Theory | Sexuality and the Law

Date of this Version

September 2006