WORKPLACE HARASSMENT AND THE FIRST AMENDMENT, I

Workplace harassment law punishes speech that is "severe or pervasive" enough to create a "hostile, abusive, or offensive work environment" based on race, religion, sex, national origin, age, disability, or veteran status and, in some jurisdictions, sexual orientation, marital status, or political affiliation.

This is a broad standard, and courts have applied it broadly. Courts have imposed liability based on religious proselytizing, sexually themed jokes, offensive political statements, and other speech that is generally entitled to full first amendment protection. They have even gone so far as to enjoin private employees from, for instance, any "remarks or slurs contrary to their fellow employees' religious beliefs," and "any and all offensive … speech implicating considerations of race."

The breadth of harassment law is exacerbated by its vagueness, and by the fact that it must be enforced by employers. To prevent liability, a cautious employer must suppress any statement that, when aggregated with other statements, may be found by a jury to create an "offensive work environment." This risk causes many employment experts to urge employers to, for instance, take down even legitimate sexually suggestive art, suppress all sexually themed jokes, and "proscribe all speech … that may constitute [religious] harassment."

Does harassment law infringe the freedom of speech ? It is a content-and viewpoint-based restriction on speech. It is imposed by the government acting as sovereign, not as employer or proprietor. It does not fit within the traditional exceptions to free speech protections, such as fighting words or obscenity. It cannot be salvaged through a captive audience argument, because courts have long recognized that, outside the home, people must often be captive to offensive speech (for instance, picket lines that call them "scab," and that they must see twice a day for many weeks). And it cannot fit into a workplace speech exception, because the cases have (correctly) recognized no such exception: The lunchroom or office water cooler is where many Americans talk about social and political questions; and virtually every place, including a street, a university, or a library is, after all, someone's workplace.

Of course, private employers may restrict their employees' speech without First Amendment problems; the First Amendment applies only to government action. But harassment law involves the government's pressuring employers to restrict their employees' speech, on pain of multimillion-dollar liability. Private colleges, private newspaper owners, private commercial landlords, and private employers certainly can restrict speech on their own property; but this right does not empower the government to require that these property owners impose such restrictions.

A useful thought experiment is to imagine a law that says: "Any employer who tolerates speech critical of soldiers shall be liable to lawsuits by veterans and relatives of soldiers killed in action who find that such speech creates an offensive work environment for them." (This is actually not far from what veteran-status harassment law does.) Surely this law would be condemned as unconstitutional; and in most respects, harassment law is structurally similar to this proposal.

Lower courts are all over the map on this question; in coming years, the Supreme Court probably will have to resolve it and decide under what conditions harassment law, when applied to otherwise protected speech, is constitutional. (To the extent that harassment law also punishes sexual extortion, unwanted physical conduct, and speech that is otherwise proscribable, such as threats, it poses no First Amendment difficulty.)

Eugene Volokh
(2000)

(see also: Employee Speech Rights (Private).)

Bibliography

Browne, Kingsley R. 1991 Title VII as Censorship: Hostile- Environment Harassment and the First Amendment. Ohio State Law Journal 52:481–550.

Epstein, Deborah 1996 Can a "Dumb Ass Woman" Achieve Equality in the Workplace? Running the Gauntlet of Hostile Environment Harassing Speech. Georgetown Law Journal 84:399–451.

Estlund, Cynthia 1997 Freedom of Expression in the Work-place and the Problem of Discriminatory Harassment. Texas Law Review 75:687–777.

Volokh, Eugene 1992 Freedom of Speech and Workplace Harassment Law. UCLA Law Review 39:1791–1872.

——1997 What Speech Does "Hostile Work Environment" Harassment Law Restrict? Georgetown Law Journal 85:627–648.