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Sexual Harassment 2 - Does Sexual Harassment Law Violate...

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Does Sexual Harassment Law Violate Free Speech Rights? 1 st Amendment: “Congress shall make no law abridging freedom of speech, or of the press.” 1964 CRA bans differential treatment by sex, race, etc. including providing different “conditions of employment” Meritor v. Vinson and EEOC: a “hostile environment” = “verbal or physical conduct” that is “sufficiently severe or pervasive to alter the conditions of [the victim’s] employment and create an abusive working environment” and is “based on sex” = illegal sex discrimination in the provision of “conditions” of employment Q: does regulation of “verbal conduct” amounting to a “hostile environment” = abridging free speech?
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Constitutional Rights: The General Analytical Framework Most constitutional rights constrain state action only, not action of private parties (13 th Am. exception) State action infringing fundamental constitutional right permissible only if a) for a “compelling state interest” b) “narrowly tailored” to serve that interest takes “least restrictive means” necessary to effectively serve that interest; not overbroad Application to sexual harassment law: a) Interest = securing workers against sex discrimination, advancing equal opportunity plainly a compelling state interest
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First Amendment Narrow Tailoring Standards i) Content neutrality: state may not forbid discussion of particular topics ii) Viewpoint neutrality: state may not forbid particular viewpoints on those topics iii) Not vague: does not leave people guessing what is forbidden ( self- censorship) iv) Not overbroad: does not restrict speech protected by 1 st Am.
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