How to Create a Safe Classroom Environment using Respect
There are many more such incidents. The 1994 a People for the American Way report, lists eight other instances where employees claimed that public art involving nudity constituted workplace harassment. In each case the work was taken down, though in two instances it was later reinstalled.
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But how exactly can we condemn the fact-finders here of being guilty of "bizarre judicial misapplications"? After all, nothing in the rule they were told to apply says that religious proselytizing, political commentary, or off-color jokes are insulated from liability. Perhaps you or I can say that a reasonable person ought not find Bible verses or the phrase "Men Working" or jokes about sexually graphic road signs to be "severe" or "pervasive" enough to create a hostile environment; but obviouslyother people, who probably thought themselves to be quite reasonable, have disagreed.
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How to Create a Safe Classroom Environment using …
. The definition also does not require that the speech take place in the workplace; even speech outside the workplace can be considered if it creates a hostile environment at work. See Intlekofer v.
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Wkly., May 27, 1996, at 12A. These cases are eminently consistent with the harassment definition given by the Supreme Court: It's quite plausible that speech by coworkers outside the workplace may create a hostile environment within the workplace.
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Correction Law § 752 (generally banning discrimination based on having "previously been convicted of one or more criminal offenses"); (asserting that New York City human rights law bars harassment based on, among other things, "record of conviction or arrest"); City of Boston Code §§ 12-9.2, 12-9.3 (barringdiscrimination in "terms, conditions, or privileges of employment" based on "ex-offender status," defined as an arrest record, a record of conviction for petty misdemeanors, or a record of conviction for any misdemeanor when the sentence had elapsed over 5 years earlier); State of Wisconsin Dep't of Workforce Development, (including "arrest or conviction record" in prohibited bases of harassment, alongside race, sex, and so on); Chippewa Valley Technical College, (same); n.3 (treating status as "ex-offender" as equivalent to race, sex, and so on); (same); (same).
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Putting all this together, harassment law potentially burdens any workplace speech that's offensive to at least one person in the workplace based on that person's race, religion, sex, national origin, age, disability, military membership or veteran status or, in some jurisdictions, sexual orientation, marital status, political affiliation, criminal record, occupation, citizenship status, tobacco use outside work, Appalachian origin, receipt of public assistance,dishonorable discharge from the military, or personal appearance, even when the speech is political and even when it's not severe or pervasive enough to itself be actionable.
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Great Lakes Steel, in which a Muslim employee of Syrian descent sued for national origin and religious harassment. Part of the alleged harassment was direct, personal insults, but part was coworkers generally referring to Muslim religiousleaders as "toilet seat[s]" and suggesting, in the context of the Gulf War, that the United States "nuke Iraq and Syria" and "go back [to Libya] and wipe them off the face of the earth." The Michigan Court of Appeals reversed a grant of summary judgment for the employer, and held that the evidence was sufficient to let the harassment claims to go to trial.