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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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