“Hostile Work Environment” Harassment Case Based Partly on Playing of Radio Show That Discussed Sex:

I blogged last year about the panel decision, and I’m glad that the court has agreed to rehear it.

The panel decision helps illustrate how hostile environment harassment law may suppress constitutionally protected speech. The panel held that Ingrid Reeves could proceed to trial with her hostile environment harassment claim — which is to say, that if the jury agrees with her on the facts, it’s entitled to award potentially hundreds of thousands of dollars in damages — even though the case didn’t involve any sexual extortion, any offensive touching, any sexual propositions, or even any insults targeted to her personally.

Rather, her complaints, as described by the panel, were chiefly related to “sexually crude language that offended her.” A fairly small part of the incidents involved sex-based insults (“bitch,” “whore,” and once “cunt”) used to refer to women customers and another employee behind their backs. There was also casual use of the word “dick,” and some sexually themed jokes (and one song) with pretty vulgar language, overheard discussions about pornography, masturbation, and sex; one incident in which Reeves saw pornography on a coworker’s computer; and the following:

Reeves was also offended by a radio program that was played every morning on the stereo in the office [a morning program on Birmingham's 107.7 FM during 2002-03, according to one brief -EV]. Discussions of the following material on the show offended her: (1) breast size of female celebrities and Playboy Playmates; (2) sexual arousal and women