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30 Ohio N.U. L. Rev. 1 (2004)
Hostile Environment Law and the Threat to Freedom of Expression in the Workplace

handle is hein.journals/onulr30 and id is 9 raw text is: Hostile Environment Law and the Threat to Freedom of Expression in the Workplace DAVID E. BERNSTEIN* Jerold Mackenzie worked at Miller Brewing Company for nineteen years, eventually achieving executive status and a $95,000 salary. One day, he made the simple but career-ending mistake of recounting the previous night's episode of the sitcom Seinfeld to his co-worker Patricia Best. In the episode, Jerry Seinfeld cannot remember the name of the woman he is dating, but he does recall that she said kids teased her as a child because her name rhymes with a part of the female anatomy. Jerry and his friend George brainstorm, but the best guesses they can come up with are the unlikely Mulva and Gipple. Jerry's girlfriend breaks up with him when she realizes he doesn't know her name. As she leaves him forever, Jerry finally remembers the elusive rhyming name and calls after her, Delores! Mackenzie related the details of this episode to Best, but she told Mackenzie she did not get the joke. To clarify the somewhat off-color punch line, Mackenzie gave her a copy of a dictionary page on which the word clitoris was highlighted. Best-who was apparently known to use salty language at work herself--complained to Miller Brewing officials of sexual harassment, and Miller Brewing fired Mackenzie for unacceptable managerial performance. Mackenzie responded with a lawsuit alleging wrongful termination and other wrongs. At trial, Miller Brewing officials acknowledged that the direct cause of Mackenzie's termination was the Seinfeld incident and the ensuing fear of a sexual harassment lawsuit. The jury awarded Mackenzie $26.6 million, including $1.5 million in punitive damages against Best for * Professor, George Mason University School of Law. This essay is based on remarks presented in a lecture at Ohio Northern University on April 10, 2003, sponsored by the Faculty Enrichment Committee and the Federalist Society and is drawn from Chapter 2 of DAVID E. BERNSTEIN, YOU CAN'T SAY THAT!: THE GROWING THREAT TO CIVIL LIBERTIES. FROM ANTIDISCRIMINATION LAWS (2003). The Law and Economics Center at George Mason University School of Law provided helpful funding.

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