As part of my mission to bring artwork and art related subject matter to you the reader, I look for interesting issues about the art world. Some of the time I am stunned by what I read and this case I found about sexual harassment in the workplace fits that bill. Seriously folks, this is 2013, and this is clearly a piece of fine art and not some taudry, exploitive piece of porn created to excite the “senses”.
But judge as you will I am only the messenger.
The Issue: Sexual Harassment and Artistic Expression
In 1964, Congress passed Title VII of the Civil Rights Act which, among other things, prohibits discrimination based on race, color, religion, national origin, and gender. Since its passage, courts have interpreted gender discrimination to encompass sexual harassment in the workplace. Two types of sexual harassment may constitute violations of Title VII: harassment that involves the conditioning of concrete employment benefits on sexual favors, and harassment that, while not affecting economic benefits, creates a hostile or offensive working environment. To maintain an action based on a hostile work environment, a plaintiff must show that he or she is the victim of actions, behaviors, or statements that were so severe or pervasive that a reasonable person would find the environment abusive. Many states and localities have adopted similar prohibitions of sexual harassment.
Given that sexual harassment can often involve expression, there is an inherent conflict between laws prohibiting sexual harassment and the First Amendment right of free speech. In addressing this issue, courts have held that the goal of abolishing sexual discrimination in the workplace is important enough to justify some restrictions on work place speech. Even with this compelling goal, however, restrictions on workplace speech must be narrowly tailored to prevent arbitrary enforcement by government officials according to their own personal tastes (see also Zoning Laws and Artistic Expression). These restrictions are relevant to artistic expression in that they can affect the kind of art displayed in the workplace.
The Case: Henderson v. City of Murfreesboro (TN)
In 1996, Laurie Crowder, an assistant superintendent for city schools in Murfreesboro, Tennessee, was walking through City Hall on her way to a professional meeting. On display in the City Hall rotunda was an exhibit of dozens of paintings by local artists. One piece in particular caught Ms. Crowder’s eye: a 12-by-16 inch oil painting by artist Maxine Henderson. Entitled “Gwen,” the impressionist painting depicts a seated nude female, legs crossed at the knees, with her left arm draped across her chest.
Ms. Crowder was highly offended by the piece and the next day submitted a sexual harassment complaint to the city legal department. She asserted that the painting was “pornographic” and “very offensive and degrading to [her] as a woman.” Crowder wanted the painting removed. Though the city attorney did not believe the painting constituted a federal violation under Title VII , he did feel it violated the city’s internal sexual harassment policy and removed the painting himself. Maxine Henderson brought suit in U.S. District Court claiming the removal of her painting was a violation of the First Amendment. The court agreed, but without deciding the substantive issue of whether or not the display of “Gwen” constituted sexual harassment. Instead, the court held the removal was unconstitutional because it was done pursuant to a policy that was not narrowly-tailored to prevent sexual harassment, i.e., the Murfreesboro policy lacked written and specific guidelines as to what could be displayed on city property. Without such guidelines in place, city officials would be able to arbitrarily decide which artwork could be displayed in government spaces according to their own personal tastes.
