This is the case. Those courts applying the gender-
specific test hold that fuck and motherfucker are general expletives that
Uses of Fuck
such as “fucking idiot,” “stupid
motherfucker,” and “dumb motherfucker” are neutral, verbal abuse and
Even when fuck -based, gender-specific insults
are found, such as “fat fucking bitch,” if the alleged harasser also refers
to men with fuck -based, gender-specific insults, such as the “fucking
new guy,” the complained-of language does not establish a sex
The use of foul language in front of both men and
women is not discrimination based on sex.
However, comments such
as “fucking bitch,” “dumb fucking broads,” and “fucking cunts” were
As Judge Fletcher of the Ninth Circuit wrote in
Steiner v. Showboat Operating Company,
“[i]t is one thing to call a
woman ‘worthless,’ and another to call her a ‘worthless broad.’”
Application of the sexual/nonsexual test to fuck also tends to be
favorable. For example, the use of fuck and “dumb motherfucker” are
not considered inherently sexual.
Recognizing that fuck is used
frequently, one district court concluded that the fact the plaintiff was
offended was indicative of her sensibilities not sexual harassment.
Use of “offensive profanities” that have no sexual connotation such as
“you’re a fucking idiot,” “can’t you fucking read,” “fuck the goddamn
memo,” and “I want to know where your fucking head was at,” as a
See supra notes 54-58 and accompanying text (describing difference in Fuck
See Angier v. Henderson, No. Civ.00-215(DSD/JMM), 2001 WL 1629518, at *2 (D. Minn.
Aug. 3, 2001) (fuck, shit, and asshole are gender-neutral profanity); Illinois v. Human Rights
Comm’n, 534 N.E.2d 161, 170 (Ill. App. Ct. 1989) (finding fuck and motherfucker general
expletives); cf. Rose v. Son’s Quality Food Co., No. AMD 04-3422, 2006 WL 173690, at *4 (D.
Md. Jan. 25, 2006) (motherfucker and “fuck her up” were not racially hostile). But see Hocevar v.
Purdue Frederick Co., 223 F.3d 721, 727, 729 & n.10 (8th Cir. 2000) (Lay, J., dissenting) (stating
that using f-word in virtually every sentence, calling clients fuckers, routinely using fuck in
meetings was offensive enough to state a claim).
See Ferraro v. Kellwood, No. 03 Civ. 8492(SAS), 2004 WL 2646619, at *10 (S.D.N.Y.
Nov. 18, 2004) (“fucking idiot” and “stupid motherfucker” are neutral and nondiscriminatory);
Naughton v. Sears, Roebuck & Co., No. 02 C 4761, 2003 WL 360085, at *7 (N.D. Ill. Feb. 18,
2003) (citing Hardin, 167 F.3d at 345-46, as holding that “dumb motherfucker” and “when the
fuck are you going to get the product” were neutral verbal abuse).
See Hocevar, 223 F.3d at 736-37 (“Offensive language was used to describe both men and
See Steiner v. Showboat Operating Co., 25 F.3d 1459, 1464 (9th Cir. 1994); Bradshaw v.
Golden Road Motor Inn, 885 F. Supp. 1370, 1380-81 (D. Nev. 1995) (stating “fucking bitch” was
a gender-based insult).
25 F.3d 1459 (9th Cir. 1994).
Id. at 1464. As Judge Fletcher’s anecdote implies, it is being called a bitch, broad, or cunt
that is the actionable gender-specific language; fuck merely intensifies it.
See Hardin, 167 F.3d at 345-46 (identifying coarse language including “dumb
motherfucker” and “when the fuck are you going to get the product” as not being inherently
See Alder v. Belcan Eng’g Servs., Inc., No. C-1-90-700, 1991 WL 494528 (S.D. Ohio Nov.
27, 1991) (comments, including fuck, were not of a sexual nature).
CARDOZO LAW REVIEW
matter of law cannot make a prima facie case for sexual harassment.
Even the phrase to “go fuck himself” is not evidence of a sexual
Similarly, in the same-sex context, the harassing comment
“fuck me” when uttered by men to men, more often than not has no
connection whatsoever to the sexual acts referenced.
Irrespective of whether the allegation may be gender-related or
sexual in nature, courts routinely require offensive comments to be
made “to her face or within earshot.”
Consequently, “fucking bitch”
may be considered a gender-based insult but would not support a
plaintiff’s claim where the evidence showed that term was used by a
supervisor only when talking with others, not to the plaintiff.
Similarly, the statement that an employee looked so good he “could fuck
her” did not support a hostile work environment claim because it was
directed at others, not the plaintiff.
Neither fuck nor motherfucker
would support a claim either if the complained of language was not
specifically directed, even if the plaintiff overheard it.
Considering men use the word fuck more in the workplace, it is not
surprising that hostile work environment claims based on fuck involve
male fuck -sayers with female fuck -complainants. Nonetheless, fuck
statements as a basis for Title VII claims are routinely rejected using the
methods described above. By itself, fuck falls into the category of an
“offensive profanity” or “vulgar” language.
harassment claims, however, can’t be used to “purge the workplace of
Even when fuck is used persistently, it doesn’t rise to the
level of sexual harassment. As the Supreme Court notes, Title VII is
not a “general civility code for the American workplace.”
See Stewart v. Evans, 275 F.3d 1126, 1131-34 (D.C. Cir. 2002).
See Gross v. Burggraf Constr. Co., 53 F.3d 1531, 1544-46 (10th Cir. 1995). The court also
found the comments not gender specific. Id. at 1546. In contrast, a supervisor who repeatedly
refers to an employee as a “dumb cunt” is making a sexual remark and is subject to a hostile
environment claim. See Torres v. Pisano, 116 F.3d 625, 632 (2d Cir. 1997).
See Johnson v. Hondo, Inc., 125 F.3d 408, 412 (7th Cir. 1997) (“Most unfortunately,
expressions such as ‘fuck me,’ ‘kiss my ass,’ and ‘suck my dick,’ are commonplace in certain
circles, and more often than not, when these expressions are used (particularly when uttered by
men speaking to other men), their use has no connection whatsoever with the sexual acts to which
they make reference-even when they are accompanied, as they sometimes were here, with a
crotch-grabbing gesture.”); Lack v. Wal-Mart Stores, Inc., 240 F.3d 255, 261 n.8 (4th Cir. 2001)
See Bradshaw v. Golden Road Motor Inn, 885 F. Supp. 1370, 1381 (D. Nev. 1995).
Id. at 1380-81.
See Ptasnik v. City of Peoria, 93 F.App’x 904, 909 (7th Cir. 2004).
See Spencer v. Commonwealth Edison Co., No. 97 C 7718, 1999 WL 14486, at *8-9 (N.D.
Ill. Jan. 6, 1999) (noting that profanities and crudities were generally directed and not actionable).
See id. (“Although vulgar and boorish, the use of foul and offensive language and
comments without more does not create an actionable hostile environment under present
Baskerville v. Culligan Int’l Co., 50 F.3d 428, 430 (7th Cir. 1995).
Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998).
only when fuck is used as a modifier for gender-specific statements,
such as “fucking cunt,” does it appear to be actionable.
such gender-specific harassing statements could form the basis of a
Title VII claim with or without the fucking adjective.
Even though fuck is not typically actionable under Title VII,
employers’ reactions to Title VII, such as the adoption of voluntary
anti-harassment plans, provide another example of word taboo at work.
Despite the dearth of empirical support that taboo words like fuck cause
any harm to the listener,
employers can—and do—adopt policies
designed to curb workplace harassment that are overly broad and
unnecessarily and improperly restrict free speech rights in the
Employers who adopt overly restrictive workplace
speech policies engage in self-censorship and impose these restrictions
on others just as broadcasters avoiding programming containing fuck
Much law review ink has already been spilled detailing the
potential conflict between the First Amendment and Title VII.
pages of the Federal Reporters, however, remain amazingly light on the
I can add little to this conversation
except to say, as to
See Steiner v. Showboat Operating Co., 25 F.3d 1459, 1461 (9th Cir. 1994).
, supra note 71, at 233 (“Secular-legal decisions implicate curse words as doing
psychological and physical harm to listeners, even though these decisions lack empirical
Professor Volokh explains. We start with Title VII law grounded in vague words like
severe and pervasive. To comport with this, employers necessarily err on the safe side. Some
employers “consequently suppress any speech that might possibly be seen as harassment, even if
you and I would agree that it’s not severe or pervasive enough that a reasonable person would
conclude that it creates a hostile environment.” Eugene Volokh, What Speech Does “Hostile
Work Environment” Harassment Law Restrict?, 85 G
L.J. 627, 635-37 (1997). These zero-
tolerance policies are not hypothetical. “Employers are in fact enacting such broad policies and
are indeed suppressing individual incidents of offensive speech.” Id. at 642. Kingsley Browne
also develops the thesis that vagueness in Title VII law leads employers to adopt overbroad
speech regulation in contravention of the First Amendment. See Kingsley R. Browne, Zero
Tolerance for the First Amendment: Title VII’s Regulation of Employee Speech, 27 O
. 563, 580-97 (2001).
See Debra D. Burke, Workplace Harassment: A Proposal for a Bright Line Test Consistent
with the First Amendment, 21 H
L.J. 591, 621 (2004) (describing how
employers can regulate workplace speech yet in the process censor both employee and employer
See Browne, supra note 358, at 575 n.77 (collecting dozens of citations to law reviews as a
“partial list of articles devoted specifically to the First Amendment and workplace speech”);
Burke, supra note 359, at 612 nn.142-43 (collecting authorities addressing First Amendment
violations with Title VII and those showing the lack thereof).
Kingsley Browne and Eugene Volokh have “[t]he most thorough catalogue of cases in
which verbal expression formed all or part of a finding of liability under Title VII.” D
supra note 3, at 94; see Browne, supra note 358, at 574-80 (explaining the dearth of First
Amendment analysis in Title VII case law). See generally Eugene Volokh, Comment, Freedom
of Speech and Workplace Harassment, 39 UCLA L. R
. 1791 (1992).
Professor Browne makes one suggestion on the future of hostile environment theory that I
can’t let go without comment. He calls for the use of heightened pleading requirements similar to
CARDOZO LAW REVIEW
fuck, the doctrines of fighting words, obscenity, captive audience, and
the like have been explored and rejected.
Nothing in Title VII
changes this. Only the category of lesser-protected indecent speech
(now bastardized by the FCC) remains as a constitutional option.
However, none of the original Pacifica justifications—parental control,
child access, and home privacy—have any vitality in the workplace.
A better alternative is to simply leave fuck alone.
The treatment of fuck in the workplace provides two lessons. First,
Title VII law recognizes the varied uses of fuck and the key linguistic
distinction between Fuck
. The tests that the courts have
developed to determine actionable verbal sexual harassment, such as the
sexual/nonsexual test, treat fuck according to its intended use. Calling
an employee a fucking idiot, an obvious nonsexual use of Fuck
not meet the harassment standard. Conversely, the statement by a
supervisor to an employee that “I want to fuck you,” an equally obvious
use of Fuck
, would at a minimum meet the sexual use test. Hence, the
federal courts demonstrate facility in recognizing varied uses of fuck
and take that into account. This stands in stark contrast to the broadcast
regulation by the FCC where every use of fuck is deemed per se
sexual—turning a blind eye to the linguistic distinction and a model for
its legal application.
While fuck-based claims under Title VII show at least the capacity
for law to accommodate valuable lessons from linguistics, the multiple
those in defamation cases where the precise defaming language must be pleaded or risk dismissal.
Conclusory allegations should be insufficient. The rationale is to allow defendants to quickly and
cheaply extricate themselves from meritless litigation. See Browne, supra note 328, at 545-46.
This is a particularly bad idea—already rejected by the Supreme Court in Swierkiewicz v. Sorema,
N.A., 534 U.S. 506 (2002). I have been roundly critical of the use of heightened pleading whether
it is judicially-imposed, statutorily-mandated, and most recently as required under Federal Rule of
Civil Procedure 9(b). See generally Christopher M. Fairman, Heightened Pleading, 81 T
. 551 (2002) (criticizing judicially-imposed heightened pleading in civil rights cases and
statutory heightened pleading under the PSLRA and Y2K Act); Christopher M. Fairman, An
Invitation to the Rulemakers—Strike Rule 9(b), 38 U.C. D
. 281 (2004) (advocating an
end to Rule 9(b)). If you care to read more about the subject of heightened pleading in the
defamation context (or any other), see Christopher M. Fairman, The Myth of Notice Pleading, 45
. 987 (2003).
See Browne, supra note 328, at 510-31 (applying and rejecting First Amendment doctrines
as a basis for Title VII speech suppression including, labor speech, captive audience, time-place-
manner regulation, defamation, fighting words, obscenity, and privacy); see also Volokh, supra
note 361, at 1819-43 (detailing why harassment law is not defensible under the existing First
In 1991, Professor Browne wrote that indecency theory couldn’t be used to contain fuck.
See Browne, supra note 328, at 528-29. Unfortunately, the recent maneuvers by the FCC
certainly provide a doctrinal basis for restricting fuck by labeling it as per se sexual and patently
offensive as they did in Golden Globe II. See supra notes 214-44 and accompanying text. Of
course, I don’t think this is any wiser for sexual harassment than for broadcasting.
See supra notes 197-200 and accompanying text (discussing Pacifica rationale).
See, e.g., Burke, supra note 359, at 605-07 (questioning judicial decisions recognizing a
hostile environment based upon words alone).
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