Abstract
The Sexual Harassment Prevention Act is particularly enacted to prevent sexual harassment extensively. Compared to the two earlier-enacted laws - the Act of Gender Equality in Employment and the Gender Equity Education Act, it not only expands the scope of prohibition but also increases the liabilities of the harasser. In doing so, the Constitutional issues of the Act are promptly raised. Since the hostile environment sexual harassment included in the Act can be simply done by speech, the prohibition of the hostile environment sexual harassment will inevitably raise the concerns about the freedom of speech. Therefore, the purpose of this article is to go through the prohibition of hostile environment sexual harassment from the perspective of the freedom of speech. This article firstly reviews the development of the First Amendment topics of the hostile working/educational environment sexual harassment in the United States, and secondly adopts the established doctrines of the freedom of speech, and then examines the constitutionality of the hostile environment sexual harassment in the Sexual Harassment Prevention Act. This article argues that under the high-level requirement of legal certainty, the statute is too vague to be foreseeable or to offer an enforcement standard. Besides, the legislative purposes of the law are not clear. This article only finds two legislative purposes that are compelling - to eradicate sexual discrimination and to protect people from becoming the captives of the unwanted sexual remarks. On the basis of these two purposes, this article, again, only finds part of the statute narrowly tailored to achieve one of the goals. As a result, the statute is unconstitutional. This article suggests a rethinking and modification of the current law, or to make laws aiming at overall harassments.