Endnotes To

Note: Pornography, Equality, and a Disrimination-Free Workplace:

A Comparitive Perspective

by Rebecca L. Eisenberg

106 Harvard Law Review 1075

Copyright (c) 1993 The Harvard Law Review Association.

March, 1993
to the main text

endnotes numbered:

1-25 ... 25-50 ... 50-75 ... 75-100 ... 100-125


1 Ordinances have been proposed in the cities of Indianapolis, Indiana, Minneapolis, Minnesota, Cambridge, Massachusetts, Los Angeles, California, and Bellingham, Washington. See ANDREA DWORKIN, PORNOGRAPHY: MEN POSSESSING WOMEN at xxx-xxxi (1989).

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2 See, e.g., An Act to Protect the Civil Rights of Women and Children, Mass. H.B. 5194, 177th Gen. Ct., 1992 Reg. Sess., available in LEXIS, LEGIS Library, MACODE File.

3 See Pornography Victims' Compensation Act, S. 983, 102d Cong., 1st Sess. (1991).

4 For example, an anti-pornography ordinance was passed twice in Minneapolis, in 1983 and 1984, by two different city councils, and vetoed each time by the same mayor. See DWORKIN, supra note 1, at xxx.

5 See, e.g., American Booksellers Ass'n v. Hudnut, 771 F.2d 323, 332 (7th Cir. 1985) (striking down the Indianapolis antipornography ordinance as an unconstitutional viewpoint-based restriction on speech), aff'd without opinion, 475 U.S. 1001 (1986).

6 See, e.g., Patrick Tivy & Southam News, Porn Ruling is "Historic," CALGARY HERALD, Feb. 28, 1992, at A1.

7 See Butler v. Her Majesty The Queen, [1992] 1 S.C.R. 452, 484-85, 509-10 (1992) (Can.).

8 See Cynthia G. Bowman, Street Harassment and the Informal Ghettoization of Women, 106 HARV. L. REV. 517, 546-48 (1993) (describing R.A.V. v. City of St. Paul, 112 S. Ct. 2538, 2550 (1992), as a potentially surmountable impediment to establishing viewpoint-based legislation such as regulation of street harassment or pornography).

9 477 U.S. 57 (1986).

10 See id. at 66-67.

11 See 42 U.S.C. @@ 2000e to 2000e-17 (1988).

12 See Andrews v. City of Philadelphia, 895 F.2d 1469, 1485 (3d Cir. 1990); Waltman v. International Paper Co., 875 F.2d 468, 477 & n.3 (5th Cir. 1989). But see Rabidue v. Osceola Ref. Co., 805 F.2d 611, 622 (6th Cir. 1986) (dismissing the effect of pornography on the workplace as "de minimus"), cert. denied, 481 U.S. 1041 (1987).

13 See Robinson v. Jacksonville Shipyards, Inc., 760 F. Supp. 1486, 1522, 1525-27 (M.D. Fla. 1991), appeal docketed, No. 91-3655 (11th Cir. July 12, 1991).

14 Meritor Sav. Bank v. Vinson, 477 U.S. 57, 65 (1986).

15 Griggs v. Duke Power Co., 401 U.S. 424, 429 (1971).

16 See, e.g., An Act to Protect the Civil Rights of Women and Children, supra note 2, at @ 1. The Act defines pornography as:

[T]he presentation of women's [sexual] body parts . . . such that women are reduced to those parts, or the presentation of women: (a) as dehumanized sexual objects, things, or commodities; (b) as sexual objects who enjoy humiliation or pain; (c) as sexual objects experiencing sexual pleasure in rape, incest, or other sexual assault; (d) as sexual objects tied up or cut up or mutilated, bruised or physically hurt; (e) in postures or positions of sexual submission, servility, or display; (f) being penetrated by objects or animals; or (g) in scenarios of degradation, humiliation, injury, torture, shown as filthy or inferior, bleeding, bruised or hurt in a context that makes these conditions sexual.
Id. at @ 1.

17 See LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW @ 12-17, at 920-21 (2d ed. 1988); Catharine A. MacKinnon, Pornography as Defamation and Discrimination, 71 B.U. L. REV. 793, 799-802 (1991); Martin Karo & Marcia McBrian, The Lessons of Miller and Hudnut: On Proposing a Pornography Ordinance that Passes Constitutional Muster, 23 U. MICH. J.L. REF. 179, 179 & n.4 (1989); Cass R. Sunstein, Pornography and the First Amendment, 1986 DUKE L.J. 589, 594-602.

18 See, e.g., Margaret Jean Intons-Peterson & Beverly Roskos-Ewoldsen, Mitigating the Effects of Violent Pornography, in FOR ADULT USERS ONLY, 218, 220-28 (Susan Gubar & Joan Hoff eds., 1989) (overviewing the current research of the effects of pornography on men).

19 See Ann Russo, Pornography's Active Subordination of Women: Radical Feminists Reclaim Speech Rights, in WOMEN MAKING MEANING 144, 146 (Lana F. Rakow ed., 1992) ("In the typical debates over pornography women's experiences and lives are usually invisible and socially meaningless.").

20 See, e.g., GLORIA STEINEM, REVOLUTION FROM WITHIN 204 (1991).

21 American Booksellers Ass'n v. Hudnut, 771 F.2d 323, 332 (7th Cir. 1985), aff'd without opinion, 475 U.S. 1001 (1986).

22 See Nan D. Hunter & Sylvia A. Law, Brief Amici Curiae of Feminist Anti-Censorship Taskforce, et al., in American Booksellers Association v. Hudnut, 21 U. MICH. J.L. REF. 69, 74 (1987-1988).

23 See id. at 109.

24 DWORKIN, supra note 1, at 27.

25 See, e.g., Susan Gubar, Representing Pornography: Feminism, Criticism, and Depictions of Female Violation, in FOR ADULT USERS ONLY, supra note 18, at 47, 50-52 (describing Rene Magritte's Le Viol as pornographic "art" that may horrify women).

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26 According to some studies, the majority of women may have been raped or otherwise sexually abused. See, e.g., Catharine A. MacKinnon, Reflections on Sex Equality Under Law, 100 YALE L.J. 1281, 1301-02 & nn. 99-102 (1991) (reporting statistics that reveal that 44% of women have been victims of rape or attempted rape, and 92.5% of women have been subject to sexual harassment).

27 See Catharine A. MacKinnon, Francis Biddle's Sister, in FEMINISM UNMODIFIED 163, 171 (1987) ("Pornography sexualizes rape, battery, sexual harassment, prostitution, and child sexual abuse; it thereby celebrates, promotes, authorizes, and legitimizes them.").

28 See MacKinnon, supra note 27, at 184; cf. Bowman, supra note 8, at 536 (describing the heightened injury suffered by rape victims who are subject to street harassment).

29 Sex-role identification is a well-established concept in the field of psychology. See, e.g., HENRY GLEITMAN, BASIC PSYCHOLOGY 323-26 (1983) (describing a variety of theories which account for this process).

30 New York v. Ferber, 458 U.S. 747, 759 (1982).

31 Public Hearings on Ordinances to Add Pornography as Discrimination Against Women, Minneapolis City Council, Government Operations Comm., Dec. 12-13, 1983, quoted in DWORKIN, supra note 1, at xvi.

32 See Robin West, Pornography as a Legal Text, in FOR ADULT USERS ONLY, supra note 18, at 108, 116.

33 See, e.g., A New Way of Looking at Porn, GLAMOUR, Apr. 1992, at 54 (describing studies revealing women's negative views toward pornography).

34 See Kathleen Mahoney, The Canadian Constitutional Approach to Freedom of Expression in Hate Propaganda and Pornography, 55 LAW & CONTEMP. PROBS. 77, 101 (1992) (describing the "true essence of discrimination" as how members of a disadvantaged group are "viewed by members of the dominant majority").

35 See, e.g., Doris-Jean Burton, Public Opinion and Pornography Policy, in FOR ADULT USERS ONLY, supra note 18, at 133, 135 (describing surveys which demonstrate that nearly half of all women surveyed would like pornography to be entirely illegal, while less than a third of the men surveyed agreed).

36 Harry Hurt III, Zipless Sex: Or Why Men Love Pornography, SELF, NOV. 1992, at 169, 184 (suggesting that pornography is merely harmless "fantasy").

37 See, e.g., Kathleen A. Lahey, The Canadian Charter of Rights and Pornography: Toward a Theory of Actual Gender Equality, 20 NEW ENG. L. REV. 649, 649-51, 664-72 (1984-1985); Kelly Toughill, Women Take Aim at Civil Liberties Group, TORONTO STAR, Aug. 30, 1992, at A1.

38 See Mahoney, supra note 34, at 86.

39 However, the Canadian constitution, unlike that of the United States, has an equal rights amendment for women. See infra note 47.

40 See Mahoney, supra note 34, at 105 ("The Butler decision is a welcome development in the law that other countries and the international human rights community should contemplate if they are genuinely serious about women's human rights, violence against women, and women's equality."); see also Mary Ann Glendon, A Beau Mentir Qui Vient de Loin: The 1988 Canadian Abortion Decision in Comparative Perspective, 83 NW. U. L. REV. 569, 591 (1989) (noting the "great opportunity afforded [to the United States] by the developing jurisprudence under the Canadian Charter").

41 [1992] 1 S.C.R. 452 (1992) (Can.).

42 Criminal Code, R.S.C. ch. C-46, @ 163(8) (1985) (Can.) ("For the purposes of this Act, any publication a dominant characteristic of which is the undue exploitation of sex, or of sex and any one or more of the following subjects, namely, crime, horror, cruelty and violence, shall be deemed to be obscene."); see also id. @ 163(1) (making it an offense to produce or distribute such materials).

43 Butler, [1992] 1 S.C.R. at 461. Donald Butler's store contained mainly visual materials in which women were presented as "used, hurt, or abused for sex for men." Factum of the Intervener Women's Legal Education and Action Fund at 1, Butler, [1992] 1 S.C.R. 452 (1992) (Can.).

44 See Butler, [1992] 1 S.C.R. at 461-62.

45 See id. at 463 (citing Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927 (1989) (Can.); see also CAN. CONST. (Constitution Act, 1982) pt. I (Canadian Charter of Rights and Freedoms), @ 2(b) ("Everyone has the following fundamental freedoms: . . . freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication . . . .").

46 Butler, [1992] 1 S.C.R. at 465-66 (citing 50 C.C.C.3d 97, 124-25 (Man. Q.B. 1989), appeal dismissed and cross-appeal allowed, 60 C.C.C.3d 219 (Man. C.A. 1990)).

47 Id. at 471. Section 1 of the Charter of Rights and Freedoms, the Canadian analog to the U.S. Constitution's Bill of Rights, provides that limitations upon constitutional rights may be allowed if they can be "demonstrably justified in a free and democratic society." CAN. CONST. (Constitution Act, 1982) pt. 1 (Canadian Charter of Rights and Freedoms), @ 1.

The Canadian Charter of Rights and Freedoms also contains an equality section, which, unlike other national and international instruments that exist to prohibit discrimination, contains express equality guarantees, an open-ended list of prohibited bases for discrimination, and an affirmative action provision that allows beneficial programs for disadvantaged groups or individuals. See id. @ 15. Section 28, the gender equality section, states that, "[n]otwithstanding anything in this Charter, the rights and freedoms referred to in it are guaranteed equally to male and female persons." Id. @ 28. Although the United States Constitution does not have a Equal Protection Amendment for women, Section 28 might be viewed as Canada's analogue to the Equal Protection Clause of the Fourteenth Amendment and to Title VII.

48 See Butler, [1992] 1 S.C.R. at 489.

49 See id.

50 See id. at 498-99.

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51 Id. at 479.

52 Butler, [1992] 1 S.C.R. at 479.

53 Id. at 497 (quoting Regina v. Red Hot Video Ltd., 45 C.R.3d 36, 43-44 (B.C.C.A. 1985)).

54 Id. at 501. The court rejected the argument offered by the British Columbia Civil Liberties Association that pornography "celebrates both female pleasure and male rationality." Id. at 500 (quoting Robin West, The Feminist-Conservative Anti-Pornography Alliance and the 1986 Attorney General's Commission on Pornography Report, 4 AM. B. FOUND. RES. J. 681, 696 (1987)). Instead, the Court concluded that this description "ignore[s] . . . the realities of the pornography industry." Butler, [1992] 1 S.C.R. at 500.

55 See Barnes v. Glen Theatre, Inc., 111 S. Ct. 2456, 2462 (1991) (plurality opinion); Miller v. California, 413 U.S. 15 (1973); Jacobellis v. Ohio, 378 U.S. 184, 197 (1964) (Stewart, J., concurring); Catharine A. MacKinnon, Not a Moral Issue, in FEMINISM UNMODIFIED, supra note 27, at 146, 157 & n.57 (1987) (listing sources).

56 458 U.S. 747 (1982).

57 See id. at 752.

58 See id. at 757-58. The Ferber Court stated that prevention of sexual exploitation and child abuse constituted a government objective of "surpassing importance" and accepted the legislative judgment that child pornography harms minors. First, the Court reasoned, "the use of children as subjects of pornographic materials is harmful to the physiological, emotional, and mental health of the child." Second, the distribution of child pornography harms children by creating a "permanent record" of the child's participation, and such harm is exacerbated by the circulation of the materials. Third, this harm is not mitigated by any serious literary, artistic, or political value. And fourth, the best means of reducing pornographic exploitation of children is to attack the economic incentive in the distribution and production of such materials. Further, the Ferber Court expressly recognized that the Miller obscenity standard was not useful in determining whether children were hurt by pornography. See id. at 757-65.

59 See Lahey, supra note 37, at 674; Mahoney, supra note 34, at 92.

60 771 F.2d 323 (7th Cir. 1985), aff'd without opinion, 475 U.S. 1001 (1986).

61 Id. at 329 (footnote omitted) (quoting INDIANAPOLIS, IND., CODE @ 16-1(a)(2)). Notably, the Seventh Circuit cited national studies conducted in Great Britain and Canada, as well as in the United States for the proposition that pornography harms women. See id. at 329 n.2.

62 Id. at 329.

63 See 475 U.S. 1001 (1986). Chief Justice Burger, and Justices Rehnquist and O'Connor would have granted certiorari. See id.

64 See Mahoney, supra note 34, at 102.

65 U.S. CONST. amend XIV, @ 1 ("No State shall . . . deny to any person . . . the equal protection of the laws.").

66 See MacKinnon, supra note 17, at 810-15 (arguing that an equality approach should have been applied in Hudnut).

67 347 U.S. 483 (1954).

68 Id. at 494; see TRIBE, supra note 17, @ 12-5, at 821 (stating that the Court invalidated segregation because it "unavoidably communicated a social message of [B]lack inferiority").

69 See MacKinnon, supra note 17, at 812-13.

70 Id.

71 See supra pp. 1079-82.

72 But cf. Roberts v. United States Jaycees, 468 U.S. 609, 622-29 (1984) (recognizing sex equality as a compelling state interest sufficient to integrate a private all-male organization); Pittsburgh Press Co. v. Pittsburgh Comm'n on Human Relations, 413 U.S. 376, 391 (1973) (upholding an ordinance prohibiting newspapers from printing sex-designated "help wanted" ads).

73 According to FBI statistics, on average a woman is battered every fifteen seconds, and a woman is raped every five minutes. See S. REP. NO. 545, 101st Cong., 2d Sess., pt. 3(A), at 28 (1990); FEDERAL BUREAU OF INVESTIGATION, U.S. DEP'T OF JUSTICE, UNIFORM CRIME REPORTS FOR THE UNITED STATES 4 (1991). The Supreme Court has acknowledged the extent of such harms to women. See Planned Parenthood v. Casey, 112 S. Ct. 2791, 2826-28 (1992) (providing statistics on domestic violence).

74 Often it is not clear whether violence is inflicted on women because they are women or because they were simply in the "wrong place at the wrong time." Judith G. Greenberg, Introduction to MARY JOE FRUG, POSTMODERN LEGAL FEMINISM at ix (1992) (problematizing this very question). It is clear, however, that these injuries are often inflicted as a part of the production of pornography, for which women have been "beaten, forced to commit sex acts, imprisoned, bound and gagged, and tortured." Sunstein, supra note 17, at 595 (citing U.S. DEPARTMENT OF JUSTICE, ATTORNEY GENERAL'S COMMISSION ON PORNOGRAPHY, FINAL REPORT pt. IV, ch. 2, @ B(3)(b), at 866-69 (1986)).

75 But see GARY DAVID COMSTOCK, VIOLENCE AGAINST LESBIANS AND GAY MEN 106-09 (1991). Gay men are more likely to undergo these experiences because they, like women, are subject to abuse due to gender-role stigmatization.

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76 Cf. Bowman, supra note 8, at 521 (arguing that when the law fails to protect women from a harm that men do not share, it leaves women in a "Hobbesian wilderness" from which men are protected by the laws and by the male-dominated society).

77 See supra pp. 1078-79.

78 See generally Barbara A. Brown, Thomas I. Emerson, Gail Falk, & Ann E. Freedman, The Equal Rights Amendment: A Constitutional Basis for Equal Rights for Women, 80 YALE L.J. 871 (1971) (discussing the need for, and potential benefits of, an ERA).

79 42 U.S.C. @ 2000(e)-2(a)(1) (1988).

80 477 U.S. 57 (1986).

81 See id. at 66.

82 Id. at 65-66 (citing Equal Employment Opportunity Commission Guidelines on Discrimination Because of Sex: Sexual Harassment, 29 C.F.R. @ 1604.11(a) (1985)).

83 Id. (quoting Los Angeles Dep't of Water and Power v. Manhart, 435 U.S. 702, 707 n.13 (1978)).

84 Id. at 66 (citing Rogers v. EEOC, 454 F.2d 234, 238 (5th Cir. 1971)).

85 See id. at 65.

86 See id. at 67.

87 Id. (quoting Henson v. Dundee, 682 F.2d 897, 902 (11th Cir. 1982)).

88 Id. at 65.

89 Kathryn Abrams, Gender Discrimination and the Transformation of Workplace Norms, 42 VAND. L. REV. 1183, 1212 n.118 (1989) (citation omitted).

90 See, e.g., Brief of Amicus Curiae Equal Rights Advocates at 4, Robinson v. Jacksonville Shipyards, 760 F. Supp. 1486 (M.D. Fla. 1991), appeal docketed, No. 91-3655 (11th Cir. July 12, 1991). See generally Wendy Pollack, Sexual Harassment: Women's Experience vs. Legal Definitions, 13 HARV. WOMEN'S L.J. 13, 36-44 (1990) (describing harassment faced by women in the construction industry).

91 Even the American Civil Liberties Union, which vehemently opposed the Dworkin/MacKinnon antipornography ordinance in Hudnut, has argued that pornography may create a harassing environment for women in some workplaces. See Brief for Amicus Curiae American Civil Liberties Union at 15-16, 18, Robinson v. Jacksonville Shipyards, 760 F. Supp 1486 (M.D. Fla. 1991), appeal docketed, No. 91-3655 (11th Cir. July 12, 1991).

92 See NAOMI WOLF, THE BEAUTY MYTH 51-52 (1991) (describing pornography in the workplace as one of the systematic means by which men send women messages of their worthlessness); WILLIAM PETROCFELLI & BARBARA KATE REPA, SEXUAL HARASSMENT ON THE JOB 3/13-3/14 (1992).

93 See Rabidue v. Osceola Refining Co., 805 F.2d 611, 622 (6th Cir. 1986) (finding that pornography in the workplace had a "de minimis effect").

94 See, e.g., Andrews v. City of Philadelphia, 895 F.2d 1469, 1485 (3d Cir. 1990) (finding the posting of pornographic pictures in common areas and in the plaintiff's work spaces to be evidence of a hostile environment); Waltman v. International Paper Co., 875 F.2d 468, 476-77 (5th Cir. 1989) (considering sexual graffiti evidence of a hostile work environment).

95 760 F. Supp. 1486 (M.D. Fla. 1991), appeal docketed, No. 91-3655 (11th Cir. July 12, 1991).

96 See id. at 1493. The shipyard employed 2 women and 958 men as skilled craftsworkers in 1980, 7 women and 1010 men as skilled craftsworkers in 1983, and 6 women and 846 men as skilled craftsworkers in 1986. See id.

97 See id. at 1493-94.

98 See id. at 1493, 1495-99. For example, one picture displayed a woman's torso with a meat spatula pressed onto her public area and another showed a nude woman with the words "USDA Choice" printed on her stomach. See id. at 1495. In addition, the employees hung a dart board with a drawing of a woman's breast on which the woman's nipple served as the bull's-eye. See id. at 1497. A life-size picture of a nude woman was drawn on a wall; another drawing depicted a nude woman with fluid coming from her genital area. See id.

99 See id. at 1494 (quoting one foreman as saying that if he ever saw a calendar with pictures of nude men, he would throw it in the trash, and another as saying that if he saw a vendor distributing a calendar with pictures of nude men, he would think the "'son of a bitch'" was "'queer'").

100 See id. at 1496.

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101 Id. at 1514-15.

102 Id. at 1498. After Robinson complained about a graphic calendar in the shipfitter's trailer, male workers retaliated by posting a sign on the trailer's door that read "MEN ONLY." See id.

103 Id. at 1495.

104 See id. at 1535-36.

105 Id. at 1523.

106 See id. at 1527 (citing Abrams, supra note 89, at 1212 n.118).

107 Id.

108 Id.

109 Id.

110 See id. app., at 1542. The sexual harassment policy mandated by the court defined harassing depictions as materials that are "sexually suggestive, sexually demeaning, or pornographic." Id. (emphasis added). It defined "sexually suggestive" in part as "posed for the obvious purpose of displaying or drawing attention to private portions of his or her body." Id. This definition incorporates both the Canadian and Dworkin/MacKinnon definitions of materials that harm women. See supra pp. 1075, 1080-81.

111 See id. at 1536 (distinguishing Hudnut because "the affected speech, if it is speech protected by the first amendment, is reached only after a determination that a harm has been and is continuing to be inflicted on identifiable individuals"). Had the Hudnut court interpreted the antipornography ordinance as it was written, it would have reached an identical conclusion. That is, the ordinance creates only a civil cause of action for damages for coercion or assault that stems from a particular piece of pornography. Cf. An Act to Protect the Civil Rights of Women and Children, supra note 2 (providing for the same causes of action as the statute at issue in Hudnut).

112 See id. ("[T]he Court may, without violating the first amendment, require that a private employer curtail the free expression in the workplace of some employees in order to remedy the demonstrated harm inflicted on other employees.").

113 See id. at 1503 (citing the testimony of Dr. Susan Fiske).

114 See generally ROSABETH M. KANTER, MEN AND WOMEN OF THE CORPORATION 208-42 (1977) (describing the psychological harms caused by numerical male dominance in the workplace); BARBARA GUTEK, SEX AND THE WORKPLACE 15-16 (1985) (discussing the harm of sexrole spillover).

115 Robinson, 760 F. Supp. at 1504.

116 Cf. GERD BRANTENBERG, EGALIA'S DAUGHTERS 249-50 (Louis Mackay trans., 1985) (demonstrating the use of pornography as a tool by the dominant gender in a sex-hierarchical society by describing the pornography of men in a fictional female-dominated society).

117 See Robinson, 760 F. Supp. at 1535-36.

118 See, e.g., COMM. ON LABOR AND HUMAN RESOURCES, 96TH CONG., 2D SESS., LEGISLATIVE HISTORY OF THE PREGNANCY DISCRIMINATION ACT OF 1978, 61 (Comm. Print 1979).

119 See, e.g., Kimberle Crenshaw, Race, Gender, and Sexual Harassment, 65 S. CAL. L. REV. 1467, 1475 (1992) (arguing that "the social opportunities of millions of women are bounded and policed through subordinating gender practices such as sexual harassment" that exclude women from the trades even more than they do from the ranks of professional education).

120 The Robinson court explicitly adopted the perspective of the "reasonable woman." See 760 F. Supp. at 1524. This is a welcome trend. See, e.g., Ellison v. Brady, 924 F.2d 872, 879 (9th Cir. 1991) (adopting the perspective of the reasonable woman because "a sex-blind reasonable person standard tends to be male-biased and tends to systematically ignore the experiences of women").

121 See, e.g., Susan D. Ross, Proving Sexual Harassment: The Hurdles, 65 S. CAL. L. REV. 1451, 1453-58 (1992).

122 See Robinson, 760 F. Supp. at 1504-05.

123 See Amy Horton, Of Supervision, Centerfolds, and Censorship: Sexual Harassment, the First Amendment, and the Contours of Title VII, 46 U. MIAMI L. REV. 403, 434 (1991).

124 Cf. Abrams, supra note 89, at 1209 (arguing that courts should accord primary weight to a woman's reactions to sexual behavior and focus their attention on the victim's response, rather than on the harassing conduct in the abstract).

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125 For an excellent overview of the First Amendment issues at stake in sexual harassment litigation, see generally Horton, cited above in note 123, at 410-52.


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