Hostile Environment and Employment Discrimination Issues and Free Speech

Definition

Employers are liable for allowing conduct and speech that seriously offends employees based on race, religion, and sex. A similar theory is also applicable to speech at universities, places of public accommodation, and apartment buildings and condominium complexes. When, if ever, does such liability violate the First Amendment?

Under hostile environment harassment law, employers are liable to offended employees:

1. if they fail to stop conduct or speech (by managers, coworkers, or patrons) that

2. is severe or pervasive enough

3. to create a hostile, abusive, or offensive work environment

4. based on race, religion, sex, national origin, age, disability, or—depending on the jurisdiction— sexual orientation, political affiliation, or other categories protected by antidiscrimination law

5. for the plaintiff

6. and for a reasonable person.

This can cover conduct, such as physical abuse. It can cover traditionally unprotected categories of speech, such as threats, fighting words, and obscenity. And it can cover speech that is generally constitutionally protected: racist, sexist, or antireligious political commentary; religious proselytizing; sexually themed humor; and the posting of sexually themed materials, whether pornography or ‘‘art.’’ (Note that the First Amendment applies to civil liability rules as well as Criminal Laws.)

Similar rules obligate university andK-12 educators, owners of restaurants and other public places, and landlords and condominium associations to prevent (when possible) offensive speech and conduct by employees, students, patrons, and tenants. Hostile environment harassment law is not the same as ‘‘quid pro quo’’ harassment law, which bans sexual extortion (‘‘sleep with me or I’ll fire you’’). It’s also unrelated to criminal telephone harassment laws and stalking laws.

Origin

Hostile environment harassment law was largely developed by courts from federal and state statutes that ban discrimination based on race, religion, sex, and other attributes in (among other things) the ‘‘terms and conditions’’ of employment. Courts have held that the work environment is one such condition, so an employer can be held liable for tolerating an environment that is especially offensive for members of a certain group.

Practical Effect

Hostile environment harassment law generally imposes liability only for multiple, ‘‘pervasive’’ statements; it does not punish isolated statements unless they are ‘‘severe.’’ But the law deters individual statements, even when they are not themselves enough to create an offensive environment.

Reasonable employers realize they can be sued for the aggregate of many employees’ statements—for instance, sexual jokes emailed by some employees, sexist statements said in the lunchroom by others, and sexually themed material visible on the computers of others. To prevent such liability, employers cannot simply order employees, ‘‘Don’t say things that, when aggregated with others’ statements, are severe or pervasive enough to create an offensive environment based on race, religion, or sex.’’ Such a policy would not tell employees what to do, because (1) each employee may not know what others are saying, and (2) the terms are too vague.

Instead, the employer must ban individual statements, and define the forbidden statements with specificity. The result is policies that ban even isolated politically offensive statements, sexually themed jokes or art, and the like.

First Amendment Analysis

The Supreme Court has not decided when harassment law may constitutionally impose liability for otherwise protected speech; lower courts have gone both ways.

Hostile environment harassment law is a government- imposed speech restriction: it uses government power to pressure universities, places of public accommodation, landlords, and private employers to restrict speech.

Moreover, the law restricts speech, not just conduct, and covers speech because of its content (and sometimes its viewpoint). Content-neutral restrictions, for instance, on excessive noise, are generally upheld; but harassment law is not content neutral.

Hostile work environment law is generally limited to workplaces, and is thus less severe than a total ban on speech (although it cannot be labeled a ‘‘time, place, and manner restriction,’’ since that label is reserved for content-neutral restraints).

On the other hand, nearly every place is someone’s workplace. Hostile work environment law thus restricts speech even in universities, libraries, television writers’ offices, art schools, and public buildings. Also, most employees spend a third of their waking hours at work. Government-coerced restrictions on expression at work (whether a university or a law office) thus substantially restrict people’s freedom to speak.

A stronger argument in favor of harassment law’s constitutionality is that speech should be more restrictable when listeners are a ‘‘captive audience’’ that is practically unable to avoid the speech. The Court has suggested that some content-based restrictions aimed at protecting captive audiences are constitutional, although it has rarely upheld such restrictions.

It is hard to tell whether the Court will ultimately accept this ‘‘captive audience doctrine,’’ given how often people are ‘‘captives’’ to speech they dislike, at least in the sense of having to hear it every week or month. (Statements may be ‘‘pervasive’’ under harassment law even if they are heard only several times a year.) Because employees are ubiquitous, there will probably be such a ‘‘captive’’ in most places. Moreover, labor picketing—which sometimes includes offensive comments—also targets a captive audience: Employees may have to see the picket line twice a day or more.

Another defense of harassment law is that the law serves a ‘‘compelling government interest’’ in preserving equal access to work, education, public accommodation, and housing, and that this interest trumps the speaker’s First Amendment rights. Again, the Court has sometimes endorsed such a ‘‘compelling interest’’ argument, but rarely used it to uphold content-based speech restrictions.

It is unclear how willing the Court will be to allow free speech rights to be trumped this way. There are many compelling interests that backers of various restrictions have asserted—promoting a war effort, preventing violence against police officers, and more. Many such interests, like the interest in equality, echo explicit constitutional provisions (the war power, the right to life, and so on). If a future Court decides that such interests should trump speech rights, it may uphold a wide range of restrictions, including harassment law. But if the Court generally thinks that free speech rights trump even really important government interests, then it may be reluctant to carve out an exception for racially, religiously, or sexually offensive speech.

EUGENE VOLOKH

References and Further Reading

• Balkin, Jack, Free Speech and Hostile Environments, 99 Columbia Law Review (1999): 2295 (mostly taking a similar view to Epstein’s).
• Browne, Kingsley R., Title VII as Censorship: Hostile Environment Harassment and the First Amendment, Ohio State Law Journal 52 (1991): 481 (taking the view that hostile work environment harassment law is unconstitutional as to virtually all otherwise protected speech).
• Epstein, Deborah, Can a ‘‘Dumb Ass Woman’’ Achieve Equality in the Workplace? Running the Gauntlet of Hostile Environment Harassing Speech, Georgetown Law Journal 84 (1996): 399 (taking the opposite view from Browne’s).
• Estlund, Cynthia, Freedom of Speech in the Workplace and the Problem of Discriminatory Harassment, Texas Law Review 75 (1997): 687 (taking an intermediate position).
• Volokh, Eugene, Freedom of Speech and Workplace Harassment, UCLA Law Review 39 (1992): 1791, republished in updated form at https://www.law.ucla.edu/volokh/harass (likewise takes an intermediate position).
• ———, What Speech Does ‘‘Hostile Work Environment’’ Harassment Law Restrict?, Georgetown Law Journal 85 (1997): 627, republished in updated form at https://www.law.ucla.edu/volokh/harass/breadth.htm (focusing only on what workplace harassment law covers).
• ———, Freedom of Speech, Cyberspace, Harassment Law, and the Clinton Administration, Law and Contemporary Problems 63 (2000): 299, parts III–V, https://www.law.ucla.edu/volokh/harass/cyberspa.htm (focusing on what hostile educational environment harassment law and hostile public accommodations environment harassment law cover).