Workplace Harassment and the First Amendment, II

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WORKPLACE HARASSMENT AND THE FIRST AMENDMENT, II

Claims of sexual and racial harassment have been routinely adjudicated by courts on statutory and constitutional grounds as discrimination for twenty-five years in cases in which many or most of the acts being litigated have been words, pictures, and expressive conduct. Although most sexual and racial harassment plaintiffs seek relief for verbal and other arguably expressive conduct, including threats and rape, in only a very few instances have defendants even attempted to claim that such activity, while actionable as discrimination, is nonetheless protected from judicial redress by the freedom of speech guarantee of the first amendment. Defendants have not claimed that saying "have sex with me or you're fired" or "sleep with me and I'll give you an A" or hanging a noose over an African American's desk and posting Ku Klux Klan literature is First Amendment protected expression at work and at school, where—unlike in the rest of society—equality is legally guaranteed. Sexual and racial harassment have been treated as acts rather than as speech.

Those cases that have frontally addressed the potential legal conflict between equality and speech at work have centered on the presence and use of pornography. In the two such cases to date, Robinson v. Jacksonville Shipyards (1991) and Johnson v. Los Angeles (1994), one court held that the pornography displays were actionable as discrimination; the other held that they were protected speech, so long as the materials were used privately.

In schools, the question of a possible conflict between equality rights and speech rights in the harassment setting has been adjudicated principally in the context of free expression challenges to antidiscrimination procedures in public universities. In two leading actions in which this challenge has been made, Doe v. University of Michigan (1989) and UMW Post, Inc. v. Board of Regents (1991), both focusing on the schools' prohibitions on racist and homophobic hate speech, the procedures lost. The equality interest that might have supported the procedures was barely raised, however.

Legal academics have produced a substantial theoretical literature arguing both sides of this question that the world of practice has treated as a virtual nonissue.

The ultimate resolution of any tension in this unsettled area remains in doubt. The Supreme Court's major precedent in the area, r. a. v. v. city of st. paul (1992), invalidated a local bias-crime ordinance under the First Amendment in its application to an incident of cross-burning as an impermissible restraint on free speech on the basis of content. Yet the ruling appeared to permit the prohibition of sexually derogatory words under Title VII. Although St. Paul's statute was found to reach too broadly into protected expression, the question remains open whether acts legally actionable as sexual harassment, including those found to create discriminatorily hostile environments when sexually abusive conduct is severe or pervasive, will be found to be protected by the free speech guarantee.

Given the fact that, where state action exists, sexual harassment claims are also recognized under the fourteenth amendment equal protection clause, a potential for conflict between two clauses of the Constitution arises. The First Amendment may thereby be challenged to adapt to equality rights that were not part of the original Constitution.

Catharine A. Mac k innon
(2000)