Sketches in the Ruins of My Mind

graphic: Sketches in the Ruins of my Mind.

Gwen the Harasser Wins!

Dateline: 5th April 1997
Author: Eugene Volokh <> (UCLA Law)

Gwen was the heroine of my short article at 17 Berkeley J. of Emp. & Labor Law 305 (1996). "Gwen" is a painting by artist Maxine Henderson, which was hanging in the Murfreesboro, Tennessee City Hall. The painting depicted "a partially clad woman, [with] her arm over her breast, and legs crossed"; part of a nipple was showing.

A city employee who saw the painting filed a sexual harassment complaint, saying the painting created a hostile environment:

"`I personally find `art' in any form whether it be a painting, a Greek statue or a picture out of Playboy which displays genitals, buttocks, and/or nipples of the human body, to be pornographic and, in this instance, very offensive and degrading to me as a woman.

"`Even if I wanted to personally take time to appreciate this kind of `art,' I reserve the right for that to be my choice and to not have it thrust in my face on my way into a meeting with my superiors, most of whom are men.'"

The city took the painting down, and the City Attorney had this to say:

"I feel more comfortable siding with protecting the rights under the Title VII sexual harassment statutes than I do under the First Amendment.

"We wouldn't permit that type of drawing or picture to hang in the fire hall. As far as I'm concerned, a naked woman is a naked woman."

The City Attorney later elaborated:

"Though [the complainant] probably couldn't win a sexual harassment suit over the picture, Murfreesboro still has to protect itself against future lawsuits . . . . If the city did nothing about the complaint about [the painting] or other complaints of harassment, a court could conclude the city was ignoring the rights of its female employees."

The artist sued the city for taking down the painting, claiming that the city had created a limited public forum. The city denied this, and further argued that the removal of the painting was necessary to prevent the creation of a hostile environment.

On March 27, U.S. District Judge Thomas Higgins (M.D. Tenn., Nashville Div.) held for Henderson (the artist). He agreed that the city had created a limited public forum, and rejected the city's harassment argument. Curiously, his justification was that the city's decision to remove the painting was an exercise of standardless discretion, and was therefore an impermissible means of trying to fight sexual harassment.

I've talked to a local reporter who's covering the story, and she said that the City Attorney is unrepentant. Here I am paraphrasing her - I should get the text of the article soon - but the Attorney apparently said that his job is to prevent the city from incurring liability, and that it's better to risk a $1 nominal damage award in a First Amendment lawsuit (I think that's all Henderson won) rather than a multi-hundred-thousand dollar award in a sexual harassment lawsuit by an offended employee. (I actually sympathize with the City Attorney here: Harassment law does indeed create a very substantial incentive for employers, public and especially private, to dramatically overcensor.)

This case seems to have gotten very little press attention, but it strikes me as quite fascinating, and in its own way quite important. This is not an uncommon fact pattern - I've seen at least a dozen press reports of incidents in which harassment complaints were made based on "legitimate" art, including one about "Naked Maja" by Goya. This is, though, one of the few cases that has had to squarely confront the inconsistency of workplace harassment law with the First Amendment.

The reporter tells me that the city is apparently not planning to appeal.

More from Eugene at The Volokh Conspiracy -