Nudes at Nolo
by Denis Clifford © 2004
If these photos are hung in a corporate office, could they constitute sexual harassment? If any employee is offended by the photos, must they be removed? Should an offended employee talk directly with the person who hung the photos? What legal standards or corporate policy should be applied to resolving these issues? Finally, why bother with any of this? If anyone is bothered by the photos, just take ‘em down. What's lost if the photos are banished?
Much can be lost, I believe. Corporate culture becomes more neutered, more alienated from the rest of life. The underlying message is that a world of exuberance, from art to sensuality to flirting, must be exiled from the workplace.
A couple of years ago, I hung these photos in my new office at Nolo Press in Berkeley, California. I'd taken both pictures some years before. Both women were then professional models, as well as friends of mine, then and now. For several years, the photos had been hung on a side wall in my previous Nolo office. Although I'm not a Nolo employee, but the author of a number of the self-help law books it publishes, the company provided me with a free office in the Editorial Department for over two decades. In my new office, which I shared with three other "Noloids," I had only one wall for hanging arts works, photos, quotations, and cartoons—and I always personalize any office I inhabit. That wall faced out to a landing on stairs leading from Nolo's first floor to the upstairs Editorial Department; the wall could be seen from the landing when our door was open, which it often was.
Within a week after I'd moved in, a high-ranking Nolo guy came to my office and reported that some women employees had complained about the photos to our new Human Resources Director. The HR director, who hadn't bothered to look at the pictures or talk to me, told the high ranking-guy—who didn't know who the complainants were—that the pictures must come down at once. The high-ranking guy looked at the photos, then stated that he saw nothing offensive, but … would I be nice and take them down? After momentary reflection, I told him that I didn't see anything wrong with the photos. I would not take them down because anonymous women objected to the photos for reasons unknown to me.
Telling him that I was willing to discuss the photos with the women, I said I was not presuming I absolutely knew what was right. I could imagine a range of possible grounds for offense, from a nouvelle-puritan insistence that any depiction of a nude female (at least hung in a male's office) was inherently offensive to the photos somehow touching wounds of a woman who'd been molested in childhood (some of my close women friends had been). Realizing that a woman might not want to reveal intimate details to me, I stated that anonymous communication would be acceptable, though I'd much prefer direct discussion. I added that I'd been at Nolo over twenty years, had a number of women friends at work, and saw no reason in my behavior why any female Noloid would be fearful of talking with me. The guy left.
Unlike an employee, I risked little by resisting. I owned the copyrights to my books. Moreover, I was an ex-Legal Services colleague of the co-founder of Nolo, the entrepenurial-visionary who'd built the company, and a close friend of his wife, the heart of the company. Both had lived freedoms and adventures of the ‘60s counter-culture, and were distinctly not prudes. If I refused to take down the photos, what Nolo could or would do about that was, at best, uncertain.
If my motives for putting up the photos are pertinent, I'll say, without offering an "artist's statement" or a summary of The Nude In Western Culture, that I thought they were art, and beautiful. Each model is a unique woman, but the photos have much in common. Both celebrate the models' bodies, which combine grace, sensuality, a sense of mystery, and strength. (One of my personal criteria of female beauty is—could she carry a backpack?) I put up the photos because I enjoyed looking at them. Also, they were a statement that I'm an artist, and one whose art includes female nudes. Further, by showing photos one might not expect to see in an office, I was demonstrating that I, and Nolo, don't always take the most cautious route.
A week later, the high-ranking guy returned, reporting that the still-anonymous women were still complaining, and unwilling to discuss the reasons for their complaints. Again, the guy urged me to take down the photos, adding wryly, "That's life in corporate America." Impulsively and angrily, I responded "O.K., the hell with it," and took the photos down.
Something was lost at Nolo that day—me, for starters. When I decided to remove the photos, I told the high-ranking Nolo guy that I would not work in an Editorial Department where an unknown number of editors didn't trust me and refused to speak to me about what bothered them, and management supported them. How could I feel comfortable with secrecy? I quickly established a functioning office in my home; since then, my time at Nolo has been minimal. I've been told by a number of Noloids that they feel a loss at my leaving. Aside from whatever spirit and humor I'd brought to the office, I'd also participated in numerous editorial matters, from impromtu explanations of legal/writing issues to production or publicity concerns.
With Nolo friends, I expressed my views about what had happened. They did not like it. An up-tight company was not how they wanted to see Nolo.
In a larger sense, banning the photos indicates that employees must be wary of expression that could be seen as including sensuality or sexuality. Do I dare to give a hug? A gamut of behavior—possible joys, affections, authenticities—is dampened. There's surely no room for Vive La Différence.
If I'd kept the photos up, could the offended Noloids have successfully sued Nolo for sexual harassment? Title VII of the federal civil right law prohibits employment discrimination based on sex. Interpreting this statute, the U.S. Supreme Court has held that "severe or pervasive" sexual harassment establishes a Title VII case for what's commonly called a "hostile work environment." (My brother Gregory observed, "Work is a hostile environment.") The Court has declared that, "When the workplace is permeated with ‘discriminatory intimidation, ridicule and insult' … that is sufficiently severe or pervasive to alter the conditions… of the [woman] victim's employment and create an abusive working environment" there is a violation of federal law.
To determine if conduct was "severe or pervasive," the Court has held, judges and juries must look at "all the circumstances," including: the frequency of the alleged discriminatory conduct; the severity of that conduct; whether it was physically threatening or humiliating, or a mere hostile utterance; whether it unreasonably interferes with an employee's work performance. In several cases, the Court has reaffirmed that federal law does not turn conduct which is, at most, slightly offensive into a valid hostile work environment claim. Title VII is not, the Court has stated, a "federal civility statute." To distinguish between abusive behavior and the trivial or innocuous, the Court urged using "common sense, and an appropriate sensitivity to social context."
In applying the "severe or persistent" standard, federal appellate courts recognize that some threshold level of gravity is required to avoid, as one court put it, "trivializing the serious matter of sexual harassment in the workplace." Unquestionably, plastering pornographic or sexually explicit pictures in a workplace can be part of "severe or persistent" discrimination. One court described a shipyard with Playboy, Penthouse, and pornographic pictures throughout. The photos were but one component of the male employees' self-proclaimed "boys' club"—activities which included sexually demeaning remarks and jokes directed at the few women employees. Finding there was a Title VII violation, the court cited the plaintiffs' testimony of "a vivid description of a visual assault on the sensibilities of female workers … that did not relent during working hours."
I've found no reported cases involving nude photographs where the person who put them up asserted they were art. I did unearth a few newspaper-reported incidents, ranging from a complaint over drawings containing nude figures which were hung in a city hall, to a college art professor's distress over a copy of Goya's Naked Maja hung in a class room. None of these incidents resulted in a court decision.
Under the "all the circumstances" test, what facts could possibly establish that these two photos created "severe or persistent" discrimination at Nolo? The photos are neither pornographic nor sexually explicit. One of the models, now a professor of art, wrote me that the crucial fact is that my photos were art. She then asked if the photos "were framed, or pinned up in no particular way … I'm referring to the context in which they are viewed, which can change how they are seen and interpreted." Presentation could be a factor in determining an office inhabitant's intent, if not the artist's. The photos, 8'' by 10," were framed, under glass.
Work conditions and spirit at Nolo are not abusive to women. Indeed, the majority of Nolo employees, since its founding over thirty years ago, have been and are women. Women fill most top management positions, including company president, and the heads of the editorial, production, sales, publicity, information technology and computer applications development departments. There's no history of sexism or sexual harassment in the company (there have been employee romances, some evolving into marriage).
Trying to transform these two photos into a "hostile work environment" would be black magic beyond even lawyers' arts. No statute or case supports the proposition that photos of nudes are inherently indecent. As one appeals court judge wrote, Title VII was not designed to protect "a woman of Victorian delicacy." The photos did not unreasonably interfere with work performance. Nor were they threats or humiliation. The photographs have, for me, a vital difference from pictures that can be seen as demeaning, like pin-ups, "Playmate of the Month." As the standard term puts it, pin-ups "objectify" women—literally, seeing a woman as an object, with the implication that the object is mindless, or at least inferior-minded, and can be controlled or bought. Pin-ups diminish. The attitude is aggressive, domineering. An art work of a nude does not objectify or diminish. It may appreciate or celebrate, including celebrating the sensual. Or it may present a darker view of women, as do DeKooning's semi-abstract harpies. In any case, it's not presenting a commodity. True, the photos conveyed an appreciation of sensuality, and perhaps sexuality. But as the Supreme Court has stated, "The prohibition of harassment on the basis of sex requires neither asexuality nor androgyny in the workplace; it forbids only behavior so objectively offensive as to alter the conditions of employment."
Even if a lawyer couldn't prevail on the merits of a hostile work environment claim against Nolo, couldn't he extract money from it simply by writing a threatening letter? Not without offering some facts and law to support his threat. Where did the fear come from that Nolo, or any business, must automatically fork over cash once a lawyer gets his claws on a sexual harassment complaint, no matter how flimsy? Not from any legal practice I've ever heard of. Rather, professed fear of lawyers and lawsuits make convenient bogey men, enabling corporate officers to avoid deciding on a sensible sexual harassment policies. As legal writer Jeffrey Rosen stated, there's an "explosion of legalisms, which have become a substitute for moral and political debate."
Some "experts" warn that a sexual harassment lawsuit will cost at least $100,000 to defend, even if the company prevails. What's rarely mentioned is whether the case will be filed. Somebody has to pay the plaintiff's lawyer, who would charge at least $200 an hour. An aggrieved employee is not likely to be able, or willing, to pay those fees from her own money.
Lawyers normally take sexual harassment cases on contingency—they don't get any money unless they prevail, either by legal proceeding or settlement. That's quite a brake on which contingency cases lawyers accept. All the contingency lawyers I know are quite astute at evaluating cases to determine if they have a reasonable chance to get paid. They have no interest in a case where there's no chance they could obtain money.
What prevailed at Nolo in this instance was not rational concern about the law, but fear, even though the corporation is normally far freer than most. Majority ownership remains held by free spirits who began the business. They fostered a vibrant, eclectic, office spirit that furthered the company's progressive mission of providing inexpensive, high-quality legal information. Finally, Nolo's in Berkeley, a city not known as a bastion of repression. Though not to make too much of this last point. For her up-coming concert at a well-establish Berkeley folk-music hall, a local singer recently had a poster drawn showing her relaxing on a couch with her guitar and her robe open, revealing her breasts. The general manager of the hall declined to approve the poster, mentioning his fears of possible negative repercussions from unknown Berkeley women.
Nolo feared that disaster could befall it if any female employee didn't promptly get her way once she'd complained about anything she felt was sexually offensive. Nolo's fears seem unfortunately typical of contemporary American corporate culture. The few top level executives of big-time corporations I know all confirmed that, as the ex-CEO of a large media conglomerate put it, "No way those pictures would be allowed; lawyers would be on you in a minute." (I didn't bother to ask whether he referred to his corporation's lawyers, or an aggrieved employee's.)
Fear mongers, certainly including some lawyers, have spread the notion that sexual harassment is a new, insidious enemy, sort of like Communism in the 50s. We must constantly be vigilant lest it creep in. Months after the photo incident, I attended a Nolo seminar on sexual harassment, organized by the HR Director. The speaker was a male corporate lawyer "expert," who stressed how very cautious Noloids must be, as if sexual harassment were akin to handling nitroglycerine. A woman asked if he meant she couldn't tell a dirty joke? Watch out, he responded; someone could hear the joke, be offended, and although laughing to appear to be one of the group, later report the matter to the HR Director, who would begin an investigation … and so on. Never did the lawyer suggest that the offended person might consider going in private to the joke teller, and saying she was upset by the joke. No hint that communication and fostering community might be desirable Nolo goals. Instead: "Report anything that troubles you to your HR Director." Great—a company of secretive tattletales.
The "expert" sexual harassment lawyer pronounced that dialogue was inherently undesirable. Names of complainants must never be revealed, so there could be no possible retaliation. Once again, the issue is fear, without regard to the human realities on the job. If someone was willing to talk to me, why wouldn't I respect her, rather than attempt to retaliate, assuming I could? At Nolo, any hypothetical fear of retaliation would be far, far outweighed by the possibility of employees developing understanding and trust from discussing troubling issues with each other. The core of what went wrong at Nolo was its refusal to require discussion between me and the offended women.
A corporation could, of course, choose to restrict or even prevent discussion by adhering to a stricter sexual harassment policy than the law requires. So Nolo, unconsciously, followed what I call a "Neutral Zone" policy. At work, men and women should act as if they are all neutral—if not neutered—without bodies. Nothing that disturbs any employee's sense of what's proper is allowed. All expression of valuing beauty of a female body is prohibited, and distinctions between art and pornography are irrelevant. As one woman Noloid wryly observed, "It's a policy of no delight, no offense."
Why would company leaders choose a neutral zone policy? Perhaps from moral views, including regarding the nude as inherently offensive. But Nolo is not run or staffed by religious fundamentalists or Puritan moralists.
Another basis for a neutral zone policy is the men-are-beasts argument. A woman executive with a leading financial publication exclaimed that absolutely no nude photos should be allowed where she works. "Every time I bend over, they're still trying to peer down my blouse." Don't allow anything—art or not—that might encourage those leering animals.
I wouldn't dispute that in her workplace, she's right. But while a neutral zone rule may be appropriate for some retrograde businesses, that does not justify assuming that all office-inhabiting males remain beasts, no matter what the realities. Nolo surely is not den of unrepentant sexists.
Is a neutral zone policy needed to protect the meek? Perhaps the Noloids offended by the photos would feel embarrassed explaining their feelings. As policy, this seems another instance of "The Tyranny of the Weak," as an old love defined it. Does Nolo—does any corporation—really want to insist that the meek must get their way, without discussion? Should policy be decided solely by the most easily offended and shy?
A neutral zone policy is a fiction. It may, under some corporate circumstances, be a necessary fiction, but for companies like Nolo it is needlessly inhibiting.
Still, why should Nolo, or any corporation, accept any risk, however minimal, of a sexual harassment claim being filed against it? If nothing else, there might be bad publicity. Why summon the courage and spend the time to establish a sensible sexual harassment policy? Why not follow the herd and "tighten down?" Nothing's lost by being fearful, is there?
Not so fast. Fear is insidious. It certainly won't encourage employee imagination and initiative. Corporate repression of discussion is unhealthy, and may well have unintended negative consequences.
For me, Nolo's acquiescence that the aggrieved women didn't need totalk to me was a betrayal by the company I'd been part of. As it grew from the five employees it had when I began writing Nolo books to its present size, it had managed to retain a sense of quasi-family—dysfunctional at times, but overall friendly and trusting. Years ago, someone suggested a dress code for bookstore and other employees who met the public. That suggestion was promptly drowned by a wave of derision. Now, Nolo had become a company where fear and intolerance ruled, at least regarding the photographs, and communication was unwanted.
Discussion could offer much. Where and why do we disagree? What are our beliefs and assumptions? Our feelings? Can we reach understanding, or at least explore tolerance? Can we move beyond a win/lose struggle and work out a mutually satisfactory resolution? One result I can imagine is that I would have decided to take the photos down, not because I agreed that the women were "right," but because I'd sufficiently understood why they thought as they did so that their views became more important to me than "right. "
We could also examine the photos from some of the perspectives put forth in Nolo's book, Sexual Harassment on the Job. For instance, "How would you feel if your daughter worked in your office?" I don't have a daughter, so my answer may be suspect. (My mother once noted when my father became very irate at my teenage sister, "Men can be very peculiar about their daughter's sexuality.") But I hope she would have learned the difference between art and the prurient, and did not find all nudes offensive.
A sister I greatly respect, who is surely no Puritan, told me that she thought the photos shouldn't be up because nakedness doesn't belong at work. I asked her about a photo of Michelangelo's David, or a Renoir nude. She replied that my photos were of living models and revealed private parts (nipples). I observed that so did ads in some women's magazines, as well as photos in The New Yorker. She said that for years she'd been hassled as she walked to work in Manhattan. Once she got to her office, she didn't want to see anything that might even hint that a woman's body could be in the men's public domain. I asked if she might have felt differently if it had been me, the me she knew, who hung the pictures. She answered "perhaps." We talked on, never reaching full resolution (we didn't need to) but ended feeling we'd both learned, including more about what complex and loaded issues these photographs could raise.
A non-Nolo friend asked me, "Suppose I worked at Nolo and told you that those photos make me feel bad … I'm not sure why … something from being conscious of looks and being looked at when I was young." Would I take down the photos? I said not solely because of her unexamined feelings. I hoped I could discuss her feelings, and mine, with empathy, but I believe, both with the photos and generally, that feelings are the start for discussion, not the end.
The French seem to have different, and to my mind more evolved, emotional codes for office interactions than we do. French women executives working in the U.S. find our corporate culture unromantic and deadening, according to French or Foe, by Polly Platt, an American living in Paris who teaches French corporate culture to American executives. "I talked to dozen and dozens of them [French women executives working in America]. All of them without exception said they felt non-existent in the U.S. ‘We are sensually deprived in America,' said Sonia Benjamin, a journalist working in San Francisco. ‘Men don't look at you here.'" Platt recounts a litany of women bored by the lack of looks of appreciation, the lack of even a hint of flirting. By contrast an American executive from Manhattan who comes to Paris often for her work, stated "Men in New York don't look at women … But in Paris, how different … it's fabulous the way men give you eye contact here. They don't smile, but they look. They make it wonderfully obvious that they value you."
That's "value," not "objectify."
A niece who works for another financial publication maintains that any nude photo in a man's office sends a signal—he is defiantly maintaining his sexist attitude, regarding women as sex objects, regardless of official corporate policy. Why, though, is it self-evident that any nude photos—my photos—manifest a nasty attitude? Suppose my niece replies "Oh come on! We all know what signal a nude photo sends." But we all don't. As one example, critic Wendy Lesser states, in His Other Half, that she does not accept that the nude exists "entirely for the benefit of the male gaze, presumed to be aggressive and intrusive." The "message" a nude photo sends could certainly be a subject for discussion between concerned employees. But to rule by fiat that it must be sending a sexist signal is neither true nor wise.
I was told by another (male) author at Nolo that the core issue to the aggrieved women was power, not morality or inherent sexism. Women Noloids (he said they said) feel new, unsure, and want to be treated equally. They felt the photos relegated women employees to an inferior level In Nolo's power dynamics. They were being perceived as biologically attractive entities, rather than just workers, and they don't want that dual role at work.
I wanted to respond "Huh? What power issues are you talking about?" I have no authority over anyone at Nolo. And I'm baffled how my photos show that I see any Noloid as a "biologically attractive entity." Or how being perceived as a "biologically attractive entity" could diminish anyone's power at Nolo. Of course Nolo doesn't consider beauty or sensuality in evaluating job performance. Nevertheless, if some Noloids feel that my showing of attractive nudes reduces any woman's power, I would like to discuss why they feel so, and what our options are to improve things.
What about my feelings? I'd like to discuss why what happened bothered me. Then, beyond my history at Nolo and my artistic intentions, I'd be open to exploring whatever the Nolo women wanted to. Do I carry a visceral dislike of sexual Puritanism? Sure do. I got a modified Irish-American-Catholic dose of that repression growing up, and I believe any form of it is virulent and destructive. Do I claim to be Mr. Together about sensuality/sexuality/passion/lust? Absolutely not. What's the relevance of that truth here? Do the women believe that my calling these photos "celebratory" and "sensual" is a cover for being a lech?
Discussion might only reveal incompatibility. The Supreme Court's declaration that "common sense" and a "sensitivity to the social context" should be sufficient to resolve most workplace sexual conduct issues may sometimes prove wildly naive. But even if discussion didn't lead to resolution, we might at least clarify where we disagree.
What should a corporation do if a complainant fears discussion? Wise Nolo policy should allow an employee to keep her (or his) identity secret, if plausible reasons, such as complaining about one's boss, were explained to an appropriate Nolo executive. However, the strong preference should be for direct discussion, with a clear, simple procedure for resolving conflict if the people involved can't accomplish that themselves.
Nolo, and all progressive corporations, could follow a more evolved policy, prohibiting genuine harassment without stifling emotional expression. Evolved policy would encourage dialogue between concerned employees about boundaries for office decoration. Some boundaries seem inescapable. An office is a cooperative environment, after all, not a place of total artistic freedom, like my home or art studio. Indeed, rules could sensibly differ for different sections of Nolo's office. I'd never suggest that my photos be put up in Nolo's bookstore, because of that valid cliché, "The customer is always right." In its bookstore, Nolo's concern is not to risk offending any customer, for any reason.
Evolved corporate policy could contain a general statement about the types of art that were permitted or prohibited. Perhaps a simple statement that no pornographic works were allowed would suffice. Nolo's written sexual harassment policy forbids "sexually explicit" pictures. I'd accept this. Sexually explicit art, art expressing sexual behavior, is not my art, nor my issue. Let someone else push the right of some employees to compel other employees to view erotic sexual art, if anyone cares too. If some Noloids maintained that any nude photos, or specifically my nude photos, were "sexually explicit," that could become a subject for our discussion.
Could any corporation actually apply policy that both encourages dialogue and distinguishes between acceptable (nude) art and other undesirable works? While those issues could require a book to cover possible ramifications, I'll boldly state, "Sure." Humane corporations, as Nolo aspires to be, could, with some reflection, develop a general policy that prohibits sexual harassment without promoting fear and sexual Puritanism. The company sets the general parameters and tries to leave it to employees to work out conflicts or ambiguous situations. Deciding on acceptable art would be merely one aspect of the overall policy. Business giants, and those corporations where there's been some sexual harassment, would certainly change more slowly than smaller, more progressive ones. Of course, with any corporation, someone could dream up difficult situations, but why play the "what if" game of law school? Why not see what actually happens? For instance, what art works do employees want to put up?
"You may say that I'm a dreamer, but I'm not the only one. … " How much more civilized business would be if Nolo, and eventually all corporations, developed broad acceptance of open, romantic expression at the job, including allowing nude art. Office life would sure be more fun—we can relax, we're adults. We could begin by recognizing that at work we've put ourselves in emotional-sensual handcuffs, and that's needlessly authoritarian.