Over the past two decades, various forms of anti-pornography legislation have been proposed on the local, 1 state, 2 and national 3 levels in the United States. Some of these measures have failed to be enacted 4 while others have been struck down as unconstitutional by federal courts.5 However, the Canadian Supreme Court, in a 1992 decision that some commentators have hailed as groundbreaking,6upheld a statute criminalizing "obscenity" and redefined the term to encompass materials that degrade or subordinate women.7 Recent U.S. Supreme Court free speech rulings may obstruct future attempts to follow Canada's lead and thus to eradicate pornography throughout the United States. 8 But the Court's landmark decision in Meritor Savings Bank v. Vinson, 9 which held that a hostile work environment could constitute actionable sex discrimination,10 has opened the door for narrower -- yet still significant -- restrictions on pornography. Indeed, several lower federal courts have recently concluded that pornography in the workplace may serve as evidence supporting a claim for hostile environment sexual harassment under Title VII 11 of the Civil Rights Act of 1964.12 In only one case decided so far, however, did a federal court find pornography in the workplace to be the primary offensive conduct in the creation of a discriminatory environment. 13 This Note argues that the eradication of pornographic materials in the workplace is necessary to achieve the objectives of Title VII -- that is, "an environment free from discriminatory ridicule and insult," 14 where women can "achieve equality of employment opportunities." 15
This Note adopts the feminist definition of pornography set forth in the Dworkin/MacKinnon civil rights antipornography ordinance. By that definition, pornography consists of "the graphic sexually explicit subordination of women through pictures or words" that also portray women in sexually degrading contexts, including submissive or servile poses, or sexualized in a manner involving violence. 16 Importantly, this definition properly restricts the scope of this Note's inquiry to the materials that most directly harm women. 17
Part I explores the harms to women caused by pornography. Part II compares the societal responses to such harms in the United States and in Canada. Part III reviews precedents regarding sexual harassment and the use of pornography in the workplace, and describes a particularly compelling example of an instance where pornographic pictures were held to constitute a hostile working environment. Part IV explains how pornography in the workplace creates a hostile and discriminatory environment and therefore violates Title VII.
I. THE DIRECT EFFECTS OF PORNOGRAPHY ON WOMEN
Although much has been written and debated about the effects that pornography has upon men's attitudes and behavior, 18 precious little mention has been made in the legal literature about pornography's direct impact on women. 19 Nonetheless, evidence available from women's own accounts of their experiences with pornography indicate that pornography has a direct impact on women, apart from the attitudinal changes it may cause in men. 20
Some women describe their experiences with pornography as positive. The Feminist Anti-Censorship Taskforce (FACT), for example, filed a brief against the Indianapolis City Council in Hudnut, 21 claiming that pornography may be a source of liberation and pleasure. 22 Most of the material that FACT wanted to protect, however, was not violent pornography that had been produced by and for men but rather feminist or lesbian erotica, which FACT feared would be targeted by the male-dominated legislature and judiciary. 23
Although pornography may be pleasing to some women, it may terrorize others. For example, Andrea Dworkin describes a female response to a pornographic photograph of a woman, spread eagle, bound by ropes to the top of a Jeep in Hustler magazine:
The terror is implicit in the content of the photograph, but beyond that the photograph strikes the female viewer dumb with fear. One perceives that the bound woman must be in pain. The very power to make the photograph (to use the model, to tie her in that way) and the fact of the photograph (the fact that someone did use the model, did tie her in that way, that the photograph is published in a magazine and seen by millions of men who buy it specifically to see such photographs) evoke fear in the female observer unless she entirely dissociates herself from the photograph: refuses to believe or understand that real persons posed for it, refuses to see the bound person as a woman like herself. Terror is finally the content of the photograph, and it is also its effect on the female observer. 24Pornography instills fear and humiliation in countless women. 25 Women who have been raped or otherwise sexually abused 26 suffer even more profoundly from forced exposure to pornography, largely because it validates and celebrates the criminal behavior of which they have been victims, 27 and thus they are unable to dissociate themselves completely from the women in the photographs. 28 It seems clear that women, far more often then men, are likely to identify with the subjects used in the production of the materials. 29
This pain is particularly magnified for women who are coerced into the production of pornography and must suffer the enjoyment of a "permanent record" 30 of their sexual abuse as someone else's sexual pleasure. Perhaps the most well-known account of this pain is that of Linda Marchiano, who was kidnapped and raped in the production of "Deep Throat." "[E]very time someone watches the film," she has testified, "they are watching me be raped." 31
Pornography may also harm women by thrusting upon them insulting and degrading views of their societal roles and their sexuality. Indeed, Robin West has argued that pornography's greatest harm lies in its ability to define narrowly the way in which women (and men) see themselves. Pornography enforces and legitimates images of sexuality that exclude the perception of women as in sovereign possession of their bodies and their own sexuality, and these images carry over to a social structure of gender inequality as a whole. 32 Pornography degrades and objectifies women; some reports suggest that women find nonviolent degrading pornography more upsetting than the violent kind. 33 Pornography conveys a message to women of how the dominant (male) society views them; 34 it is not surprising that surveys reveal women to have far more negative views toward pornography than men. 35 To many women, pornography is hardly "harmless" and "fun." 36
II. COMPARATIVE APPROACHES TO PORNOGRAPHY AND ITS DIRECT EFFECTS ON WOMEN
A. Canada
In Canada, as in the United States, feminists, libertarians, and others have engaged in a contentious battle over the harm and constitutional implications of pornography and its regulation. 37 Besides geographic proximity, Canada and the United States share many sociological similarities. 38 Canada is governed under a constitution similar to that of the United States. 39 Thus, the United States could greatly benefit from a comparative examination of Canadian law. 40
In its landmark ruling in Butler v. Her Majesty the Queen, 41 the Supreme Court of Canada upheld the constitutionality of Canada's obscenity statute, which criminalizes the publication and distribution of obscene materials, defined as those that have as a "dominant characteristic" the "undue exploitation of sex." 42 Donald Butler owned a store in Winnipeg that sold and rented "hard core' videotapes and magazines as well as sexual paraphernalia." 43 Pursuant to an arrest warrant the police seized the entire inventory of Butler's store and charged him with 250 violations of Canada's criminal obscenity statute. 44 The trial court convicted him on eight counts relating to eight films and granted acquittals on the other 242 counts on the ground that most of the seized materials were constitutionally protected by the guarantee of freedom of expression in section 2(b) of the Canadian Charter of Rights and Freedoms. 45 The appellate court reversed the acquittals and entered convictions for all of the counts. 46
The Canadian Supreme Court addressed two specific questions in Butler: whether a criminal ban on obscenity, interpreted to include pornography, infringed upon the guarantee of free expression, and, if so, whether such an infringement was "demonstrably justified" in a free and democratic society and therefore constitutionally valid under section 1 of the Charter as "a reasonable limit prescribed by law." 47 The court concluded that the obscenity law did infringe upon section 2(b) of the Charter because it sought to prohibit certain types of expressive activity on the basis of the content or meaning being conveyed. 48 Nonetheless, it held that the obscenity ban, interpreted to include pornography, was justifiable under Section 1 of the Charter because the overriding objective of the law was the avoidance of harm to society in general and to women in particular, 49 an interest sufficient to warrant a restriction on the freedom of expression. 50
Notably, the Court expanded on the statute's scant definition of obscenity -- "the undue exploitation of sex" -- by focusing on the harms to society in general and to women in particular, stating that these "degrading or dehumanizing materials place women (and sometimes men) in positions of subordination, servile submission or humiliation. They run against the principles of equality and dignity of all human beings." 51The Court also held that in pornography the appearance of participants' consent does not determine whether material is degrading or dehumanizing because "[s]ometimes the very appearance of consent makes the depicted acts even more degrading or dehumanizing." 52
Moreover, the Canadian Supreme Court expressly recognized that pornography not only affects men and men's behavior, but also corrodes women's integrity and self-esteem. The Court wrote:
[I]f true equality between male and female persons is to be achieved, we cannot ignore the threat to equality resulting from exposure to audiences of certain types of violent and degrading material. Materials portraying women as a class as objects for sexual exploitation and abuse have a negative impact on "the individual's sense of self-worth and acceptance." 53The Court also emphasized that "obscenity wields the power to wreak social damage in that a significant portion of the population is humiliated by its gross misrepresentations." 54This acknowledgment of the difference between male and female perceptions of, depictions in, and attitudes toward pornography is arguably one of the greatest strengths of the Canadian decision. It treats pornography not as a mere idea, but as a concrete act of discrimination against women which degrades both their self-respect and their social status.
B. The United States
By contrast with the course taken by its Canadian counterpart, the U.S. Supreme Court has never directly addressed pornography's harm to women. In a long line of cases the Court has analyzed the constitutionality of anti-obscenity laws almost exclusively by reference to pornography's impact on (and importance to) male consumers, and on the traditional moral fabric of heterosexual society. 55
If the Court would view allegedly obscene material from the point of view of the participants and unwilling observers, however, it could better discern which materials were harmful and therefore justifiably regulable. Such was the case in New York v. Ferber, 56in which the Court upheld a criminal ban on non-obscene child pornography -- specifically, in that case, films depicting young boys masturbating 57-- on the ground that the state could rationally conclude that child pornography harms children. 58Ferber thus carved out a new category of unprotected speech for child pornography. In so doing, it effectively equated child pornography with child abuse. 59
Unfortunately, the Supreme Court has yet to apply similar insight to the pornography of women. The only federal court of appeals, however, to review the constitutionality of an antipornography law (as opposed to an anti-obscenity law) has acknowledged that pornography directly harms women. In American Booksellers Association, Inc. v. Hudnut, 60Judge Easterbrook, writing for a panel of the Seventh Circuit, explained:
Depictions of subordination tend to perpetuate subordination. The subordinate status of women in turn leads to affront and lower pay at work, insult and injury at home, battery and rape on the streets. In the language of the legislature, "[p]ornography is central in creating and maintaining sex as a basis of discrimination. Pornography is a systematic practice of exploitation and subordination based on sex which differentially harms women. The bigotry and contempt it produces, with the acts of aggression it fosters, harm women's opportunities for equality and rights [of all kinds]." 61The court concluded, however, that the very fact that it harms women proves "the power of pornography as speech" and consequently justifies its protection under the First Amendment's Free Speech Clause. 62The Supreme Court affirmed without comment. 63
The Hudnut court's characterization of pornography as powerful yet harmful speech was, at the same time, both reminiscent of and contrary to the reasoning of the Canadian Supreme Court in Butler. On the one hand, both courts acknowledged the serious harms to women caused by pornography. But on the other hand, these two courts reached diametrically opposing results because of their differing approaches to gender equality. In the Canadian case, the Court looked to a constitutionally-grounded guarantee of gender equality (encompassed by Section 28, the gender equality section, and Section 1, allowing reasonable limits in a "free and democratic society") and held that the right to gender equality trumped the right to free expression. 64By contrast, the Hudnut court, which of course could look to no express constitutional guarantee of gender equality and which chose to ignore the Fourteenth Amendment's Equal Protection Clause, 65 held that the right to free expression trumped women's right to equality.
One powerful analogy that the Hudnut court overlooked was that of the Equal Protection Clause 66 as interpreted by the Supreme Court in Brown v. Board of Education. 67 The Brown Court sought to eradicate racial segregation in the schools not on the grounds that it harmed traditional morality in society at large or that it inspired whites to commit acts of violence against Blacks, but rather because such discrimination "generate[d] a feeling of inferiority as to [Black children's] status in the community that may affect their hearts and minds in a way unlikely ever to be undone." 68 The system of racial discrimination that U.S. courts began to dismantle in the 1950s can be analogized to the system of sex inequality that pornography perpetuates today: both harm a group of human beings by reinforcing the view that its members are inferior and worthy of mistreatment. 69 Consequently, as Professor Catharine MacKinnon has argued, "making pornography actionable as sex discrimination would delegitimize the ideas the practice advances," just as "deinstitutionalizing segregation [did] a great deal to undermine the point of view it expressed." 70 Unfortunately, U.S. courts -- unlike those in Canada 71 -- have failed to recognize that the eradication of discriminatory messages is often both a necessary means and effect of eliminating discrimination, and that rights to free expression must sometimes be sacrificed in order to vindicate rights toequality. 72
Another powerful analogy that the Hudnut court overlooked was that of the First Amendment as interpreted by the Supreme Court in Ferber. The Ferber Court's reasoning, which upheld the regulation of child pornography because it directly harmed children, could be extended to women. Contrary to fears expressed by civil libertarians, such a judgment need not rest on Victorian morals and condescending views toward women. Rather, it would rely upon an acknowledgment that women are systematically harassed, assaulted, raped, and killed, 73 and that women experience such treatment as part of an experience of social inequality based on gender. 74 Because men typically [*1085] do not undergo these experiences, 75 they may not suffer from the same threat to equality and integrity that pornography poses to women. 76 To protect women from the terrorization of pornography is thus to grant them relief from discrimination, and social equality, rather than "special protection" in the paternalistic sense.
Despite the strength of these analogies, the U.S. Supreme Court has given no indication that it is willing to treat the pornography of women as it has treated either racial segregation or child pornography. Yet, such a result should follow when the Court recognizes that pornography does harm women directly -- most invidiously by expressing to women that they exist for the purpose of male gratification and that their proper place in society is that of sexual subservience to men. 77 Although the redress of these dignitary harms is currently close to impossible in U.S. society at large, a pocket of protection from these harms in the workplace has been created by Title VII of the Civil Rights Act of 1964.
III. PORNOGRAPHY IN THE WORKPLACE: THE CREATION OF A DISCRIMINATORY AND OFFENSIVE ENVIRONMENT
A. The Purpose and Meaning of Hostile Environment: Sexual Harassment under Title VII
Unlike Canada, the United States has not enacted an explicit constitutional guarantee of equal rights to women in all aspects of society. 78 Congress has, however, enacted the Civil Rights Act of 1964, which prohibits unlawful discrimination in the workplace. Title VII makes it unlawful "to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 79 In the 1986 case, Meritor Savings Bank v. Vinson, 80 a unanimous Supreme Court, in an opinion written by then-Justice Rehnquist, interpreted Title VII to prohibit sexual harassment. 81 The Court recognized two types of sexual harassment: "quid pro quo" sexual harassment -- conditioning employment on "sexual favors" -- and "hostile environment" sexual harassment -- unwelcome sexual conduct which "unreasonably interfer[es] with an individual's work performance" or promotes an "intimidating, hostile, or offensive working environment." 82
In recognizing a hostile environment as sexual harassment, the Court explicitly acknowledged that Title VII was aimed at "the entire spectrum of disparate treatment of men and women' in employment," which includes psychological as well as economic and physical abuse. 83 Drawing from the context of racial harassment, the Court recognized that psychological and dignitary harms may not be trivial; rather, "[o]ne can readily envision working environments so heavily polluted with discrimination as to destroy completely the emotional and psychological stability of minority group workers" -- which, according to the Court, includes women. 84
The Meritor Court also noted that sexual conduct of a verbal, as well as physical nature may create a hostile environment in violation of Title VII. 85 Such verbal conduct, according to the Court, may be so demeaning that it interferes with an employee's ability to perform her job. 86 An employee should not be forced, simply because she is a woman, to "run a gauntlet of sexual abuse in return for the privilege of being allowed to work and make a living." 87 Consequently, "Title VII affords employees the right to work in an environment free from discriminatory intimidation, ridicule, and insult." 88
B. Workplace Pornography and Hostile Environment Sexual Harassment
Although images of women as sexual objects may be pleasurable to some women when enjoyed in private, they can be particularly invidious when displayed at work, where a woman is striving to be treated as a "credible coworker." 89 Stories of women in nontraditional fields such as the trades demonstrate that pornography is often used by men in the workplace to send messages to the women that they do not belong there. 90 The existence of pornography in the workplace may undermine a woman's sense of self-worth and make the conditions of her employment either unbearable or devastating for her selfesteem. 91 It may drive women out of male-dominated workplaces that are badly in need of integration. 92
Although many, if not most, women find pornography, particularly in workplace settings, to be insulting, intimidating, and degrading, courts generally have not held that pornography in the workplace, even when unwelcome and pervasive, constitutes hostile environment sexual harassment per se. Rather, most courts have cited pornography in the workplace as mere evidence of a hostile environment, if they found pornography to be worth mentioning at all, 93 and have focused primarily on other aspects of harassing behavior, such as offensive comments and sexist pranks. 94 That is, most courts found pornography to be evidence of discrimination in the workplace, rather than discrimination itself. The following case demonstrates that pornography in the workplace may in fact unreasonably interfere with a woman's ability to perform her job and consequently create a hostile working environment under Title VII.
C. Robinson v. Jacksonville Shipyards
In the spring of 1993, the U.S. Court of Appeals for the Eleventh Circuit will decide Robinson v. Jacksonville Shipyards, 95 in which a female welder sued her employer for sexual harassment. Lois Robinson worked as one of only a very few women who held a skilled crafts position at the shipyards. 96 Robinson worked in an environment immersed in pornography -- photographs and plaques of nude women in submissive poses covered the walls; vendors who did business with the shipyards routinely distributed advertising calendars with "pin-ups" to employees, who were encouraged by their employer to post them at work. 97 Many pictures explicitly and violently demeaned women, 98 and none depicted men. 99 Several were placed either in Robinson's working area or on the box where she left her tools, or handed to her directly in front of male co-workers in order to humiliate her. For example, one of Robinson's co-workers taunted her with a photograph of a nude woman with long blond hair holding a whip. Because Robinson has long blond hair and worked with an instrument called a "whip," she understandably experienced the man's actions as a personal threat. 100 Robinson on numerous occasions complained to her employer that she found the pornographic pictures "degrading and humiliating" and that "they nauseated her," and requested that they be removed, but to no avail -- her requests only prompted the male workers to bring in "hard pornography" instead. 101
The men who worked at the shipyards acknowledged that the environment was a "boy's club," "more or less a man's world." 102 Federal District Judge Melton took a different view of the work environment: a "visual assault on the sensibilities of female workers." 103 After hearing expert testimony concerning the effects of pornography on women in the workplace, the court held that a policy that allowed these materials to be displayed contradicted the spirit of Title VII -- the creation of a workplace free of discrimination, where women are afforded equal opportunity to pursue a career. 104 Pornography, explained the court, "creates a barrier to the progress of women in the workplace because it conveys the message that they do not belong, that they are welcome in the workplace only if they subvert their identities to the sexual stereotypes prevalent in that environment." 105
The Robinson court explicitly found that pornography in the workplace differentially harms women. It noted that pornography may threaten women in the workplace even more than it does in society at large. 106 It described pornography's impact on workplace equality:
Pornography on an employer's wall or desk communicates a message about the way he views women, a view strikingly at odds with the way women wish to be viewed in the workplace. . . . It may communicate that women should be the objects of sexual aggression, that they are submissive slaves to male desires, or that their most salient and desirable attributes are sexual. . . . All of the views to some extent detract from the image most women in the workplace would like to project: that of the professional, credible coworker. 107
The court concluded that such an atmosphere deters women from entering or remaining in a profession and is "no less destructive to and offensive to workplace equality than a sign declaring 'Men Only.'" 108 It is "absurd to believe that Title VII opened the doors of such places in form and closed them in substance." 109 The court ordered the shipyards to implement a sexual harassment prevention policy that mandated removing the pinups and other pornographic visuals. 110
In confronting the shipyards' argument that a judicially imposed sexual harassment policy would violate its free speech right to pornography, Robinson resembles both Butler and Hudnut. The District Court in Robinson, however, explicitly rejected the applicability of Hudnut 111 and ultimately followed a Butler-like analysis in recognizing that speech rights sometimes must be sacrificed when the exercise of those rights harms others. 112
IV. TOWARDS CREATING A DISCRIMINATION-FREE WORKPLACE THROUGH THE ERADICATION OF WORKPLACE PORNOGRAPHY
Regardless of whether the Eleventh Circuit reverses or affirms Robinson, the case still presents a strong argument for the elimination of pornographic materials in the workplace, or in any place governed by a mandate of gender equality under Title VII. In determining the extent of the harm that pornographic materials inflict upon women in the workplace, the district court set out several well-reasoned and well-supported factors that other courts should consider. For example, the court recognized that women who work in virtually all-male workplaces will experience pornography as particularly threatening. 113 The negative consequences of extreme gender-imbalance in the workplace on women have been well documented; 114 such considerations are properly addressed in any hostile environment case. In addition, the court correctly noted that a gender-based power hierarchy in the workplace will magnify the harm of pornography there, because "the people affected by the sexualized working conditions are women, and the people deciding what to do about it are men." 115 Arguably, this factor resembles the Butler decision to the extent that the Supreme Court of Canada recognized a gender-based power imbalance in society as a whole. 116
Further, Robinson correctly recognized that women constitute "captive audiences" in the workplace to the same extent as do men. 117 Most women, both single and married, work out of "pressing economic need" 118 and cannot afford to walk away from demeaning and hostile expression at work. Access to traditionally male, lucrative jobs, in fields such as the skilled trades, is crucial to the realization of gender equality. 119 When male employees fight admantly for their "right" to use pornography at work, a crucial question to ask is "Why?" When pornography is recast from a woman's perspective 120 as the powerfully debilitating and terrorizing expression that it may be, arguments for its protection under Hudnut become arguments for its suppression under Butler and Robinson.
Finally, the Robinson court demonstrated the helpful nature of expert testimony in sexual harassment litigation. Since the law of sexual harassment is arguably one of the few legal remedies constructed both by and for women, courts and juries may benefit greatly from testimony that places women's reactions in the context of women's lived reality, rather than relying on harmful and outdated stereotypes. 121 Further, changing times call for changing burdens of proof; perhaps when certain characteristics of a workplace are shown to exist -- such as a sex-skewed worker ratio and a gendered power hierarchy -- courts should place the burden on the employer to prove that its conduct was not harmful or discriminatory.
To be sure, pornographic materials may not create an unreasonably offensive environment for all women in all work settings. The Robinson court, for example, recognized that a determination of whether pornography creates a hostile environment must be made by reference to the context in which the pornography appears. 122 In so doing, the court shifted the emphasis of the harms of pornography from a theoretical inquiry into the subordination of women in society, toward an empirical and experiential inquiry into the subordination of women in a particular working environment. 123 Validating women's accounts of their reactions to the conduct and expressive behavior that they encounter may mitigate the problem of essentialization of women's experience. 124 By crediting a woman's description of her experience, and focusing on a woman's account rather than on the abstract nature of harassing conduct, courts may begin to allow women to describe the nature of their pain in a forum where they might be believed and eventually be afforded relief.
V. CONCLUSION
Pornography may be speech -- speech that many men and some women may claim to enjoy in private -- but in the circumstances of a male-dominated workplace, pornography is an issue of power. Its elimination from the workplace would be a narrowly tailored and reasonable remedial measure that would infringe minimally on rights to free expression while having a great impact on women's rights to equality. 125 The right to work in a discrimination-free workplace is essential for women to obtain the equal employment status guaranteed by Title VII; moreover, it is a right that should be guaranteed to all individuals in any free and democratic society -- including both Canada and the United States.
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Copyright 1996 Rebecca Eisenberg mars@bossanova.com