Art by a “Recognized Artist” vs. “Explicit Pictures”:

The UC online Sexual Harassment Training — which all employees are required to do — reports that “Vivienne posts a Gauguin print of nude figures in her office” is not an example of sexual harassment: “Artwork, especially by a recognized artist such as Gauguin, is generally not considered a sexual harassment issue, but hanging up explicit pictures, even in your personal work space … can create an unwelcome sexualized environment.”

This is actually a fairly accurate statement of what courts are likely to do, and I think it’s to UC’s credit that they aren’t taking the most aggressive avoid-all-risk position (which would involve banning the Gauguin, and for that matter the nude sculptures in UCLA’s Sculpture Garden). There have been harassment complaints over art by “recognized artist[s]“, and there is some risk of liability in such situations; but not, I think, a huge risk.

Still, isn’t it troubling that the law would try to distinguish “[a]rtwork[] especially by a recognized artist” from “explicit pictures,” and would allow massive liability to be partly based on the latter but not the former? Seems to me to pose serious First Amendment problems (which I have discussed at length here), both related to the law’s vagueness and to the law’s breadth.

I should note, by the way, that it might well be permissible for the government as employer to draw such lines as to what’s posted in government workplaces (setting aside academic freedom questions in universities for now), just as it’s permissible for the government as employer to punish employees for rudeness to colleagues or coworkers, on-the-job vulgarities, and other speech that would be constitutionally protected against the government as sovereign. But hostile environment harassment law, which this training is discussing, is imposed by the government as sovereign, through the threat of liability even on private employers — not by the government as employer controlling its own property and its own employees.