pageok
pageok
pageok
"Hostile Work Environment" Harassment Case Based Partly on Playing of Radio Show That Discussed Sex:

I blogged last year about the panel decision, and I'm glad that the court has agreed to rehear it.

The panel decision helps illustrate how hostile environment harassment law may suppress constitutionally protected speech. The panel held that Ingrid Reeves could proceed to trial with her hostile environment harassment claim -- which is to say, that if the jury agrees with her on the facts, it's entitled to award potentially hundreds of thousands of dollars in damages -- even though the case didn't involve any sexual extortion, any offensive touching, any sexual propositions, or even any insults targeted to her personally.

Rather, her complaints, as described by the panel, were chiefly related to "sexually crude language that offended her." A fairly small part of the incidents involved sex-based insults ("bitch," "whore," and once "cunt") used to refer to women customers and another employee behind their backs. There was also casual use of the word "dick," and some sexually themed jokes (and one song) with pretty vulgar language, overheard discussions about pornography, masturbation, and sex; one incident in which Reeves saw pornography on a coworker's computer; and the following:

Reeves was also offended by a radio program that was played every morning on the stereo in the office [a morning program on Birmingham's 107.7 FM during 2002-03, according to one brief -EV]. Discussions of the following material on the show offended her: (1) breast size of female celebrities and Playboy Playmates; (2) sexual arousal and women's nipples as indications thereof; (3) masturbation, both in general and with animals; (4) erotic dreams; (5) ejaculation; and (6) female pornography. Advertisements for or including the following material that were aired during the program also offended her: (1) sexual favors; (2) a bikini contest that instructed women to wear their most perverse bikinis; (3) a statement that a woman was found in bed with three elves and a candy cane; and (4) a drug called Proton that promised to increase sexual performance, please a partner, and make the user a "sexual tyrannosaurus rex." When Reeves complained about the radio programming, she was often told that she could play her own music or change the station. She testified, however, that if she did so the other employees would soon change the radio back to the offensive program.

The panel expressly rejected the argument that, to constitute discriminatory harassment "based on" sex, speech had to actually specifically target the plaintiff as a woman (or, in other contexts, as a black, Catholic, or whatever else). There's a good deal of circuit precedent for this rejection -- but the consequence is that any speech, including radio programs, overheard conversations, and the like, that is "particularly offensive" to people because of their sex, race, religion, and so on is punishable. The sexually themed material, the court concluded, "was discussed in a manner that was ... more degrading to women than men," which I take it reflects the view in plaintiff's brief that "In these discussions, women were objectified and demeaned." And because it implicitly expressed such degrading views, it could be punishable as harassing based on sex.

As a matter of good manners, and sound business management, I gladly condemn people who expose unwilling colleagues to such speech. The employer -- a private entity that's not bound by the First Amendment -- was free to restrict the speech, just as private Internet service providers, schools, churches, malls, and householders are generally free to restrict speech on their private property (setting aside a few contrary state laws that are not relevant here).

But here the government is saying that this speech is legally actionable, because it supposedly reflects a "degrading" perspective on women. The speech does not fit within any First Amendment exception -- there is no such exception for vulgarity, including relatively nonpolitical vulgarity (understandable, given the impossibility of defining the boundaries of such an exception). Nor was it said to a particular person who has asked that such speech stop; I've argued before that such one-to-one speech might indeed be permissibly restricted, and there is some Supreme Court precedent for this one-to-one/one-to-many distinction. But when it comes to speech conveyed to willing listeners that is also heard by the willing ones, or speech said to the (privately owned) workplace at large, the government ought not be able to limit such speech through threat of massive civil penalties, whether the penalties are imposed on the speaker or on property owners that tolerate the speech..

What's more, the logic of the case (which expressly draws on racial harassment caselaw and not just sexual harassment caselaw) extends far beyond talk of sex. The reasoning would apply even more forcefully to sexist political statements, sexist criticisms of politicians, racist political statements, racist criticisms of politicians, radio shows that condemn Islam and Muslims, radio shows that condemn atheism, and the like. And harassment law has indeed been used in the past to impose liability based on such political, religious, and social commentary, see here and, most recently, here (anti-Islam, anti-Muslim, and on occasion anti-Arab political statements).

On top of that, while harassment claims are generally not easy for plaintiffs to win, they have a perfectly predictable deterrent effect on employers, who don't want to risk losing them (or even litigating them). If you're an employer, you hear about this case, and then someone complains about allegedly sexually themed, religiously offensive, sexist, or racist radio programs being played, or overheard lunchtime conversations, what would you do?

I'm pretty sure that if you're rationally worried about litigation, you'd order that the radio playing and the conversations stop, for fear of government-imposed liability, and not just out of good manners or a desire to promote morale. Nor would you tell employees that (say) playing the radio program is just fine, so long as there isn't other offensive speech involved. Among other things, when you as employer are held liable for the aggregate of various kinds of speech by your employees, the only way to keep that aggregate from becoming legally actionable as an "offensive work environment" is by restricting each statement that might add up to such an environment -- which includes each offensive radio program, allegedly vulgar or sexist conversation, and the like. I generally don't fault employers for reacting to the reasonable fear of liability by restricting such speech. But I do fault the legal system for imposing this sort of content-based, viewpoint-based deterrent to speech.

Of course, many people are understandably upset about having to work around this sort of vulgarity, or for that matter around political speech that they find offensive based on religion, race, sex, and the like. But, as I've argued at length, preventing such offense -- whether in private workplaces, private educational institutions, privately owned places of public accommodation, or private housing complexes -- by punishing or imposing liability for speech (outside the narrow existing First Amendment exceptions) is not something that the government should be allowed to do.

I should also mention that the special First Amendment status of broadcast radio, under which some restrictions on vulgarities and even on content that simply discusses certain sexual themes have been upheld, is not relevant here -- the case didn't turn on this, and would have come out the same way if it had involved cable radio, or Internet radio, or CDs, or any other fully protected medium. (I think the lower protection for offensive speech on broadcast radio is itself unsound, but that's a separate matter.)

The defendant didn't raise the First Amendment here, and the court therefore didn't discuss it. But it would be quite sensible, I think, for the en banc court to interpret harassment law with an eye towards minimizing the conflict with the First Amendment.

RobbL:
Eugene,

So If I understand you correctly, a workplace can play any kind of protected speech over the loudspeaker at work and as far as you are concerned it does not rise to harrassment or if it does then it is ok anyway because it is protected by the 1st amendment?

Personally I think that it is one thing to say that the government can't prohibit "bad" speech, but quite another to say that an employer can blast it in your ear as a condition of employment. That would gut any kind of harrassment legislation.

Do I misunderstand you?
6.11.2009 6:11pm
Gabriel McCall (mail):
I don't see this as a freedom of speech issue at all. The ruling does not chill broadcasting activity: nobody's saying the radio station can't broadcast their show, they're just saying that the office shouldn't be playing it. To make an extreme analogy, I might strongly object if my coworkers attempted to publicly exercise their rights under Lawrence v Texas in the workspace, but that wouldn't be an infringment on their liberty to do as they pleased in a more appropriate setting.

Unless you're construing the turning on of a radio as an act of "speech" on the part of the coworkers, then I don't see whose freedom of speech is being infringed on here. And even if we do so construe, no first amendment issues obtain in a private workplace.

Now, I disagree with "hostile workplace" laws in general: if you don't like the way the owner runs the company, you just find a different job. But my objections come under freedom of association and contract, and the ninth and tenth amendments... not freedom of speech.
6.11.2009 6:24pm
BerkeleyBeetle:
The point is that, by allowing harassment claims for behavior, the government is essentially prohibiting that behavior in a private workplace. As such, I believe Prof. Volokh is arguing that the behavior being prohibited has to be behavior the government can prohibit under the constitution.
6.11.2009 6:30pm
liberal dissent (mail) (www):
RobbL: regarding your statement that

I think that it is one thing to say that the government can't prohibit "bad" speech, but quite another to say that an employer can blast it in your ear as a condition of employment.

I don't see that big a difference between the two.
6.11.2009 6:30pm
Specast:
Thanks for the update and discussion. Two quick questions/comments:

1. It sounds here like the radio issue was merely part of the evidence of hostile workplace. We can all imagine workplaces in which the radio/TV stations the company allows to be played (or pamphlets allowed to lie around) truly made the workplace hostile. (Example: David Bernstein's officemate plays the program "David Duke's Views on the Jews" at lunchtime.) What is wrong with a court recognizing that such allowed activity may be considered, as part of the totality of circumstances, in assessing a HW claim?

2. One of the harms you mention is that employers might change their behavior to avoid litigating or losing a HW suit. But you also mention that such changes would, at least in your view (though I suspect most would agree), reflect good manners and sound business management. Given also that the private employer always has the discretion to prohibit radio listening in any event, isn't the actual harm here quite limited?
6.11.2009 6:31pm
Fub:
The sexually themed material, the court concluded, "was discussed in a manner that was ... more degrading to women than men," which I take it reflects the view in plaintiff's brief that "In these discussions, women were objectified and demeaned."
Maybe some men will sue for equal access: "I'm excluded from my fair share of degrading radio material because of my gender."
6.11.2009 6:38pm
Gabriel McCall (mail):
The point is that, by allowing harassment claims for behavior, the government is essentially prohibiting that behavior in a private workplace. As such, I believe Prof. Volokh is arguing that the behavior being prohibited has to be behavior the government can prohibit under the constitution.


The government can't prohibit girly calendars either, but it can go after employers who allow them to be displayed.
6.11.2009 6:38pm
R&R:
"no first amendment issues obtain in a private workplace"

You're misunderstanding Volokh's point. Volokh is not saying that the problem is anything a private party (whether employer or employee) has done to prohibit speech, but that the government is restricting speech using the Title VII laws and the court system. Just because a private party (the female employee) instigates the action does not mean that the government action (a judgment against the employer) is okay.

The problem is that the logic of the opinion would lead to absurdity. What if a Muslim objected to the bawdy atmosphere of an Adam and Eve store on the basis that it created a hostile work environment for his protected class (religion)? This would be absurd. If you don’t want to work there, don’t work there. Religious groups could shut down all manner of obscene businesses/dirty book stores/etc. via the civil rights laws and the hostile work environment that they produce.

Now, I wouldn’t shed a tear if such businesses were shut down, but it would be unconstitutional for that to occur.
6.11.2009 6:38pm
A. Zarkov (mail):
When I brought my car in for some body work at a small shop a few weeks ago, I noticed that the radio was playing Savage Nation. Savage makes some fairly caustic remarks from time and time, and I assume that people tune in to see how far he will go just as they tuned into Howard Stern. Are we to believe that his employees have a cause of action for workplace harassment? If the radio plays a Pacifica Station such as KPFC or WBAI, do the employees with traditional beliefs likewise have a cause of action. Suppose the radio plays music I don't like? Is everything that's done without a clear business necessity fair game?
6.11.2009 7:04pm
bobo linq (mail):
Your criticism of this case on First Amendment grounds seems like a non sequitur. Surely playing certain radio stations could create a hostile work environment.

Suppose I live in an area with a local white-supremacist station. The DJs talk about how stupid black people are, how great lynching was, etc. Suppose the manager of a warehouse plays the radio station all day. A black employee complains and the manager refuses to do anything. Why wouldn't the manager be creating a hostile work environment?
6.11.2009 7:07pm
Steve:
What if a Muslim objected to the bawdy atmosphere of an Adam and Eve store on the basis that it created a hostile work environment for his protected class (religion)? This would be absurd.

It would be absurd, because the "offensive" nature of the materials is part of the intrinsic nature of the business. But that would be a completely different case.
6.11.2009 7:27pm
whit:
i frequently play talk radio in my police car.

if i am driving a perp to the local lockup, and i am playing mike malloy, michael savage or some such ... does he have a cause of action?

"the officer was playing talk radio that i found really offensive"

fwiw, i once had a gangbanger in the back of my car who was doing the usual "i'll kill you, i'll #$(#$( your mama, etc" so I turned up the country station to drown his wanking out while i was driving.

he claimed i was a racist for playing country music. seriously.

is there such a thing as a "hostile cruiser environment"?
6.11.2009 7:46pm
Steve:
whit, sounds to me like you may have a claim against them, since it's YOUR work environment and not theirs that's being made hostile! Unfortunately, my suspicion is that you deal with a high proportion of judgment-proof clients.
6.11.2009 8:28pm
Laura(southernxyl) (mail) (www):
I'm pretty sure that if you're rationally worried about litigation, you'd order that the radio playing and the conversations stop, for fear of government-imposed liability, and not just out of good manners or a desire to promote morale.

In my naive, unlawyerly way I might reason that people should do the right thing, i.e., act out of good manners or a desire to promote morale. But if they won't, then sometimes it's appropriate for them to do so b/c of fear of litigation. Not all the time, but sometimes. I don't see doing the right thing out of fear of litigation to be a tragedy, necessarily. That's what litigation is for, isn't it?

BTW, I used to get a periodical at my workplace that described various sexual harassment suits that had been brought. A man was eating lunch in his company cafeteria when a coworker walked up and plopped his porn magazine next to the guy's plate, open to an explicit picture. The man got up and moved to another table and the guy followed him. He complained about this activity to a supervisor, who did nothing, so he sued. And I don't blame him. The First Amendment doesn't say that you can force other people to look at or listen to your stuff. The woman in this story had no choice about listening to the radio station, unless she were to forfeit her hearing. That crosses a line, IMO.
6.11.2009 8:49pm
ShelbyC:

if i am driving a perp to the local lockup, and i am playing mike malloy, michael savage or some such ... does he have a cause of action?


Whit yours is a totally different case. You don't have the right to listen to whatever you want on duty, but you're using the power of the state to force someone to listen to your talk radio. Probably not a constutional violation...
6.11.2009 8:56pm
ShelbyC:

In my naive, unlawyerly way I might reason that people should do the right thing, i.e., act out of good manners or a desire to promote morale. But if they won't, then sometimes it's appropriate for them to do so b/c of fear of litigation. Not all the time, but sometimes. I don't see doing the right thing out of fear of litigation to be a tragedy, necessarily. That's what litigation is for, isn't it?


Well, when "the right thing" is to stop exercising your 1st amendment rights, and the govt forces you to "do the right thing" through fear of litigation, that's one of the times when it's not appropriate, isn't it?
6.11.2009 8:58pm
Oren:

Religious groups could shut down all manner of obscene businesses/dirty book stores/etc. via the civil rights laws and the hostile work environment that they produce.

The difference here is that the obscenity at a dirty book store is a bona-fide part of the business, while catcalls at an insurance company are entirely unrelated to any business interest. Same goes the other direction when applying to work as a waitress at Hooters.



is there such a thing as a "hostile cruiser environment"?

If your partner (none of this can apply to a perp, since they aren't coworkers in the conventional sense) asks you to change the station, you aren't a big enough asshole to say no.
6.11.2009 8:59pm
Oren:

Well, when "the right thing" is to stop exercising your 1st amendment rights

I'm not sure listening to the radio is expressive conduct under the 1A. Applying the test in TX v. Johnson seems to indicate no.
6.11.2009 9:01pm
Laura(southernxyl) (mail) (www):
"Well, when "the right thing" is to stop exercising your 1st amendment rights, and the govt forces you to "do the right thing" through fear of litigation, that's one of the times when it's not appropriate, isn't it?"

Sure. Is it my 1st amendment right to listen to a radio station while I am at work?
6.11.2009 9:02pm
Oren:

Volokh is not saying that the problem is anything a private party (whether employer or employee) has done to prohibit speech, but that the government is restricting speech using the Title VII laws and the court system.

Can you elucidate specifically what elements of "speech" you identify here.

I'm usually a pretty hard-core advocate for nigh-unrestrained free speech, but I first have to be convinced that there is something expressive at stake here, not just a preference for a radio station.
6.11.2009 9:04pm
ShelbyC:

I'm not sure listening to the radio is expressive conduct under the 1A. Applying the test in TX v. Johnson seems to indicate no.



While I give it a quick read, let me point out that freedom of expression surely protected the right to listen as well. Or the listener has 3rd party standing to assert the rights of the radio station. Or something.
6.11.2009 9:04pm
ShelbyC:

Sure. Is it my 1st amendment right to listen to a radio station while I am at work?


Why wouldn't it be? Preventing listening to speech infringes on the freedom of speech, no? And there's no "work" exception to the 1st amendment.
6.11.2009 9:06pm
Laura(southernxyl) (mail) (www):
Shelby, if you're going to assert that there is a penumbra emanating from freedom of expression that covers the right to listen, then I will assert that there is a right not to listen as well.
6.11.2009 9:08pm
ShelbyC:

I'm usually a pretty hard-core advocate for nigh-unrestrained free speech, but I first have to be convinced that there is something expressive at stake here, not just a preference for a radio station.


A preference for the BBC over Pravda isn't protected?
6.11.2009 9:09pm
whit:

If your partner (none of this can apply to a perp, since they aren't coworkers in the conventional sense) asks you to change the station, you aren't a big enough asshole to say no.


thanks for the compliment... i think.
case i read about years back. cop wore a pro-death penalty t-shirt to a training class.

the shirt had a depiction of a man being hung.

he was subsequently disciplined under some sort of hostile workplace etc. theory. iirc, the complaining officer associated hanging with racial lynching and was thus offended.

discipline was later overturned.

they ruled the dept. could ban "message t-shirts", but if they didn't ban all of them, they couldn't punish people for SPECIFIC messages that they didn't like
6.11.2009 9:10pm
ShelbyC:

Shelby, if you're going to assert that there is a penumbra emanating from freedom of expression that covers the right to listen, then I will assert that there is a right not to listen as well.


I'm asserting that laws against listening "abridg[e] the freedom of speech". And your absolutely right that you have a right not to listen, you just don't have a right to force others not to listen.
6.11.2009 9:12pm
David Hardy (mail) (www):
"is there such a thing as a "hostile cruiser environment"?"

It certainly sounds like you were creating a hostile arrest environment, and given the nature of gangbangers, the arrest environment is part of the work environment. (grin)
6.11.2009 9:14pm
Laura(southernxyl) (mail) (www):
How are you going to not listen if you have to work in the room where the radio is played?
6.11.2009 9:14pm
ShelbyC:
Laura(southernxyl):

How are you going to not listen if you have to work in the room where the radio is played?


Well, you don't have to work in the room where the radio is being played. The 1st amendment prevents the government from suppressing speech even if we think its a good idea, like protecting someone from being significantly inconvienienced by exercising their right not to listen.
6.11.2009 9:20pm
Laura(southernxyl) (mail) (www):
"Well, you don't have to work in the room where the radio is being played. "

If you are suggesting that she should have quit her job rather than have to listen to the radio, I suspect a whole bunch of precedent could be brought in to show that people aren't expected to choose between their job and their rights.
6.11.2009 9:21pm
ShelbyC:

If you are suggesting that she should have quit her job rather than have to listen to the radio, I suspect a whole bunch of precedent could be brought in to show that people aren't expected to choose between their job and their rights.



Semi-developed precedent, sure. David B. has an excellent book on the subject. Keep in mind that just about everywhere is someone's workplace. What if a political conversation in a bar offends a waitress? Or if I'm carrying a sign in a public park that offends some working in the park. Even your home, if you require assisted living care or even when the plumber comes to fix your pipes. Protecting people from having to listen to unwanted speech in the workplace would require an awful lot of supression of protected speech.
6.11.2009 9:25pm
Laura(southernxyl) (mail) (www):
Not being a lawyer, I don't know how the law goes.

I would make a distinction in the cases that you mention, that they are transient, with the possible exception of the home health people, in which case they need to be sensitive to the person whose home they are in.

If the worker had to hear the radio on the offensive stuff once or twice, that would be one thing. If it's a regular occurrence, I think she is within her rights to say she shouldn't have to listen to it.
6.11.2009 9:50pm
Guest056 (mail):
Suffice to say, it'd be a delight if the hostile work environment theories saw a resurgence on the USSC following Sotomayor's appointment.

More broadly, this 1st Amendment argument seems to rule out a whole category of actions under Title VII based on discrimination in the workplace. I mean, please. Eugene seems concerned that these were not insults directed to a person -- but the implicitly broad nature of sexually demeaning terms allows it to have a deeply personal effect without being personally directed. What's more, everyone who's created or been subject to a discriminatory culture knows very well that even though remarks may not be directly and individually targeted, broadly demeaning language is meant to implicate everyone in the class of persons discussed. Talking about a slut co-worker -- talking about a slut TV host -- in front of your female co-worker has an obvious effect necessarily carried by that kind of language. To say it ought to be protected in the workplace is to say that there is no legal remedy if co-workers decide to use sexist or racist lantguage to force someone out.

This is incorrect. Speech cannot be used as a weapon to deprive another person of his or her dignified employment.
6.11.2009 9:51pm
Oren:

A preference for the BBC over Pravda isn't protected?

The preference is protected, the right to act out that preference in all situations whatsoever, alas, is not.


I'm asserting that laws against listening "abridg[e] the freedom of speech".

Do any politicians, judges or academics agree with on this one? That is to say, are we having an "is" discussion or an "ought" discussion.
6.11.2009 9:53pm
Oren:

Keep in mind that just about everywhere is someone's workplace. What if a political conversation in a bar offends a waitress? Or if I'm carrying a sign in a public park that offends some working in the park. Even your home, if you require assisted living care or even when the plumber comes to fix your pipes. Protecting people from having to listen to unwanted speech in the workplace would require an awful lot of supression of protected speech.

(1) Hostile work environment only applies to management and co-workers.

(2) The waitress can ask you to leave, ask another waitress to serve you or suck it up.

(3) You aren't within the city's control in the park.

(4) The plumber or assisted-living-worker can decline.
6.11.2009 9:56pm
TRITSTUTSTOOF (mail) (www):
Hello,
The forum is very informative. Feel great to be a part of the community.
Wanted to share a website which might be very use full for some of the people here.
I was doing some research on my mortgage refinance issue when I came across this website.
It has some very usefull information on mortgage related problems. These days most of us are going through
mortgage crisis so this might come handy for some here. The best thing is that it is highly targeted to the topic and
has actual questions posted by users like us who are having trouble with their mortgages.
The people were very friendly in answering questions also.
The website can be accessed here. [url=http://reversemortgage.info-junction.net]Reverse Mortgage[/url]


Thanks
6.11.2009 9:57pm
Oren:

they ruled the dept. could ban "message t-shirts", but if they didn't ban all of them, they couldn't punish people for SPECIFIC messages that they didn't like

Sounds about right.
6.11.2009 9:57pm
David M. Nieporent (www):
The First Amendment doesn't say that you can force other people to look at or listen to your stuff.
Well, it sort of does. After all, if "I don't want to see or hear you" were justification for censorship, it would eviscerate the first amendment.
6.11.2009 9:58pm
David M. Nieporent (www):
(1) Hostile work environment only applies to management and co-workers.
Wrong. It applies to customers as well. (To be specific, management can be liable if customers create a hostile work environment.)
6.11.2009 9:59pm
David M. Nieporent (www):
This is incorrect. Speech cannot be used as a weapon to deprive another person of his or her dignified employment.
Missed the "dignified employment" exception to the first amendment.
6.11.2009 10:01pm
Laura(southernxyl) (mail) (www):

David M. Nieporent (www):

The First Amendment doesn't say that you can force other people to look at or listen to your stuff.

Well, it sort of does. After all, if "I don't want to see or hear you" were justification for censorship, it would eviscerate the first amendment.


David, then how come cities can have noise ordinances that prevent one from playing one's radio loudly outside at certain hours?
6.11.2009 10:04pm
ShelbyC:

... then how come cities can have noise ordinances that prevent one from playing one's radio loudly outside at certain hours?


It's a time/place/manner restriction, which is allowed.
6.11.2009 10:11pm
Laura(southernxyl) (mail) (www):
On the job/during the workday isn't a time/place/manner restriction?
6.11.2009 10:11pm
Guest056 (mail):
Mr. Nieporent,

It turns rather rhetorically on "weapon." You didn't address my implied question, though, and I'd be curious for your thoughts.

How doesn't the professor's post diminish all hostile work environment theories under Title VII? Because I missed the "freedom of speech" exception to EEOE. That would be fun, though -- "EEOE Male/Female/Vet, but accept that you're going to hear a lot about how your other female co-workers are stupid cunts."
6.11.2009 10:15pm
ShelbyC:

(1) Hostile work environment only applies to management and co-workers.

(2) The waitress can ask you to leave, ask another waitress to serve you or suck it up.

(3) You aren't within the city's control in the park.

(4) The plumber or assisted-living-worker can decline.



#4 is the same thing, right? Giving up a job to avoid listening to speech? And the rest, the employer has an obligation to protect folks from a hostile environment. So for #1 and #2, you're right, the customer isn't liable, but the govt is forcing a private party to supress speech.

And I think we're having an "is" discussion, but I don't have a cite. I'm sure prof V would though.
6.11.2009 10:23pm
ShelbyC:

On the job/during the workday isn't a time/place/manner restriction?


Well, if they suppressed all speech on the job I suppose it would be, but they're only suppressing speech that causes a hostle work environment, which is dependant on the content.
6.11.2009 10:24pm
Laura(southernxyl) (mail) (www):
Still not convinced that "freedom of speech" includes "freedom to listen to the radio" esp. at work. Management can have a policy that the radio just isn't played at work - you don't go to work to listen to the radio, you can do that at home or in your car. Is that a violation of the 1st amendment? Bet not.

Going to bed now.
6.11.2009 10:27pm
whit:

Wrong. It applies to customers as well. (To be specific, management can be liable if customers create a hostile work environment


iirc some female corrections officer made the hostile workplace environment claim based on the taunts she would receive from the inmates. part of her complaint was that the admin's/other officers wouldn't discipline the inmates who harassed her. i guess inmates are your 'customer' if you are a jail guard.
6.11.2009 10:29pm
ShelbyC:

Still not convinced that "freedom of speech" includes "freedom to listen to the radio" esp. at work. Management can have a policy that the radio just isn't played at work - you don't go to work to listen to the radio, you can do that at home or in your car. Is that a violation of the 1st amendment? Bet not.



Of course not. But when govt forces management to have such a policy you have 1A problems.
6.11.2009 10:29pm
Larrya (mail) (www):
Now, I wouldn’t shed a tear if such businesses were shut down, but it would be unconstitutional for that to occur.
I’ll lay odds there are some businesses you would cry for. In my case I’d hate to see a religious pacifist use the tactic to harass gun stores.
Suppose I live in an area with a local white-supremacist station. The DJs talk about how stupid black people are, how great lynching was, etc. Suppose the manager of a warehouse plays the radio station all day. A black employee complains and the manager refuses to do anything. Why wouldn't the manager be creating a hostile work environment?
The manager is creating a hostile environment. The question here is whether the government can sanction the manager for it.

What I’m thinking about was a work situation on a computer software team. About a third of us were into hunting, and about a third were vegetarians. We managed to get along, including every couple of weeks when we did covered-dish lunches. Should one person be able to ruin it for us?
6.11.2009 10:40pm
AJK:

Because I missed the "freedom of speech" exception to EEOE.


Constitutional rights trump laws -- you'd need an EEOE exception to freedom of speech, not the other way around.


That would be fun, though -- "EEOE Male/Female/Vet, but accept that you're going to hear a lot about how your other female co-workers are stupid cunts."


Are you really suggesting that the government has the authority to prohibit individuals from using the word "cunt"?
6.11.2009 10:40pm
The River Temoc (mail):
Keep in mind that just about everywhere is someone's workplace. What if a political conversation in a bar offends a waitress? Or if I'm carrying a sign in a public park that offends some working in the park. Even your home, if you require assisted living care or even when the plumber comes to fix your pipes.

All of these examples involve (allegedly) offensive behavior on the part of a customer, not an employer.
6.11.2009 10:56pm
Larrya (mail) (www):
Off topic, sort of, referring to the VC environment.

I don't mind Randy Barnett turning off comments; they’re his entries. But is it fair to then ask readers a question? See the 1:23 PM Special master entry.
Does anyone else think it appropriate that Feinberg's title will be "Special Master"?
;-)
6.11.2009 11:11pm
Psalm91 (mail):
"SC:

Well, when "the right thing" is to stop exercising your 1st amendment rights, and the govt forces you to "do the right thing" through fear of litigation, that's one of the times when it's not appropriate, isn't it?"

This is an interesting way of looking at the world. Sort of "Shelby-centric", eh? Do you have friends for whom you adapt your behavior?
6.11.2009 11:12pm
AJK:


This is an interesting way of looking at the world. Sort of "Shelby-centric", eh? Do you have friends for whom you adapt your behavior?


If the answer's no, does that mean it's time for the government to step in?
6.11.2009 11:17pm
nasch (mail):

Does anyone else think it appropriate that Feinberg's title will be "Special Master"?



I thought it was ridiculous that Prof. Barnett turned off comments on that post, too.
6.11.2009 11:22pm
David M. Nieporent (www):
Still not convinced that "freedom of speech" includes "freedom to listen to the radio" esp. at work. Management can have a policy that the radio just isn't played at work - you don't go to work to listen to the radio, you can do that at home or in your car. Is that a violation of the 1st amendment? Bet not.
Of course it isn't; there's no state action there, in your scenario.

But we're talking about a situation where the government penalizes it, not where it's merely a management policy. (Let's suppose the government passed a law providing for $5,000 fines for anybody who brought a copy of the New York Times, The Nation, or any other left-of-center publication into their workplace. Constitutional?)
6.11.2009 11:37pm
David M. Nieporent (www):
How doesn't the professor's post diminish all hostile work environment theories under Title VII? Because I missed the "freedom of speech" exception to EEOE. That would be fun, though -- "EEOE Male/Female/Vet, but accept that you're going to hear a lot about how your other female co-workers are stupid cunts."
It does diminsh all hostile work environment theories, and properly so. That having been said, EV makes an exception -- as he notes above -- for 'one-to-one' communications; you should read his link for an elaboration.
6.11.2009 11:43pm
ShelbyC:

This is an interesting way of looking at the world. Sort of "Shelby-centric", eh?


Well, I had thought it started out as being "Justice-Marshall-centric" and then became almost universally accepted. Can you please explain why you think it's "shelby-centric"?
6.11.2009 11:43pm
ShelbyC:

Do you have friends for whom you adapt your behavior?


Of course. I never wear my "fuck the draft" shirt to my Grandma's.
6.11.2009 11:48pm
squaxiabiague (mail) (www):
[url="http://lyrisc-music.hoxt.me/index.php?p=1"]Pink[/url] Gamma Ray
[url="http://lyrisc-music.hoxt.me/index.php?p=2"]Freda Payne[/url]
[url="http://lyrisc-music.hoxt.me/index.php?p=3"]Grand Puba[/url] R. Kelly
[url="http://lyrisc-music.hoxt.me/index.php?p=4"]Insane Clown Posse[/url]
[url="http://lyrisc-music.hoxt.me/index.php?p=5"]Trick Daddy[/url] Beatles
[url="http://lyrisc-music.hoxt.me/index.php?p=6"]Nelly[/url]

Taking Back Sunday, Baby Gangsta, Manu Chao, Soil, Jamiroquai, G-Dep, Swollen Members


[url="http://lyrisc-music.hoxt.me/index.php?p=7"]Duncan Dhu[/url]
[url="http://lyrisc-music.hoxt.me/index.php?p=8"]Lil' Flip[/url]
[url="http://lyrisc-music.hoxt.me/index.php?p=9"]Ok Go[/url]
[url="http://lyrisc-music.hoxt.me/index.php?p=10"]30 Seconds To Mars[/url]
[url="http://lyrisc-music.hoxt.me/index.php?p=11"]Will Smith[/url]
[url="http://lyrisc-music.hoxt.me/index.php?p=12"]Ja Rule[/url]
[url="http://lyrisc-music.hoxt.me/index.php?p=13"]Rolling Stones[/url]
[url="http://lyrisc-music.hoxt.me/index.php?p=14"]LL Cool J[/url]
[url="http://lyrisc-music.hoxt.me/index.php?p=15"]311[/url]
[url="http://lyrisc-music.hoxt.me/index.php?p=16"]Bryan Adams[/url]
[url="http://lyrisc-music.hoxt.me/index.php?p=17"]Big Punisher[/url]
6.11.2009 11:56pm
Guest056 (mail):
AJK,

My point is, if EEOE law has a 1st Amendment-shaped hole where speech is concerned, it is far, far less powerful. And yes, to be specific, at the present time I have no problem with the government making a tortious recourse available to someone who alleges she was forced out of her job due to a risible and hostile environment. Perhaps after reading and reflection, I could be persuaded in the other direction. But I think a theory of exception to the 1st could be derived from existing categories, and this exception could cover this. I'm not beyond persuasion, though. Whether anyone finds me worth persuading is another question.

David,

Thanks for addressing my post. I mean to read Eugene's links. In fact, I took the one-to-one exception into account in crafting my point that people would have to accept denigration of their co-workers. I'll be curious to see the rest of Eugene's case.
6.11.2009 11:58pm
ShelbyC:

All of these examples involve (allegedly) offensive behavior on the part of a customer, not an employer.


I'm not sure how it makes a differnece. If the govt penalizes someone for hiring, or selling things to, someone because of their expressive activity you have the same 1st amendment violation, don't you?
6.12.2009 12:01am
Gabriel McCall (mail):
To say it ought to be protected in the workplace is to say that there is no legal remedy if co-workers decide to use sexist or racist lantguage to force someone out.

I'm not convinced there ought to be such a remedy. A reasonable employer wouldn't let such things happen... so if the owner of a business is willing to tolerate that sort of behavior on the part of your coworkers, then a) your coworkers even with their unlikable behavior must be contributing more value to the company than you are, and b) that's not the kind of place you want to work anyway.

There's a huge difference between the unalienable right to the pursuit of happiness, and a right to happiness itself. You are absolutely entitled to look for the perfect job. You are not, as I see it, entitled to compel your employer to make the job you have perfect.
6.12.2009 12:20am
Albafannnz (mail):
Hello People Just stumpled upon this Awesome new pics
of Jessica Alba

Check it out

http://www.jessicaalbabare.com/

Do you like them and are they genuine of her?

George
6.12.2009 4:07am
Public_Defender (mail):


There's a huge difference between the unalienable right to the pursuit of happiness, and a right to happiness itself. You are absolutely entitled to look for the perfect job. You are not, as I see it, entitled to compel your employer to make the job you have perfect.


It's funny how libertarians and conservatives make this argument when employers impose conditions that employees think are wrong. But when an elected union negotiates terms on behalf of its members, employees are "compelled" to accept the condition. You can quit a union job to work elsewhere, too. (Sorry for diverting the topic of the post.)
6.12.2009 6:43am
Oren:

Are you really suggesting that the government has the authority to prohibit individuals from using the word "cunt"?

If you walked up to a stranger on the street and called him a "fascist cunt", thems would certainly be fighting words and can be prohibited.
6.12.2009 7:21am
largo (mail):
@Public_Defender

(Forgive me for first for splitting your paragraph into two sections for reference, and second for my likelihood of being obtuse here. I do not wish to be so).

[A] It's funny how libertarians and conservatives make this argument when employers impose conditions that employees think are wrong.

[B] But when an elected union negotiates terms on behalf of its members, employees are "compelled" to accept the condition. You can quit a union job to work elsewhere, too.

First, this thread has many people making several variations on several stripes of argument, so what you mean by the phrase "this argument" is not entirely clear.

Second, the distinction you draw between [A] and [B] is clearer, but strikes me as unfounded in such a way that I think I may misunderstand you here, regardless of argument's identity. It seems to me that you are saying something like the following about libertarians and conservatives:

[A] that they will use this argument to argue for the right of employers to "impose conditions that employees think are wrong",

[B] but that they will not use this argument to argue for the right to "'compel'" employees to accept terms negotiated by "an elected union official ... on behalf of its members."

Is this a fair reading of what you mean? (I assume the argument is taken to apply equally to both scenarios).
6.12.2009 8:41am
largo (mail):
I ask because I (like you?) have difficulty in seeing the argument being made preferentially on one scenario, but not in the other.
6.12.2009 8:48am
Snaphappy Fishsuit Mokiligon:
I really do not see how this is not a time/place/manner restriction. The government says you must not have a hostile work environment, which may well mean that your employer is compelled to restrict your speech from certain sexist or racist topics. You are still free to express your views however you wish outside of the workplace. How is this a meaningful restriction on speech?
6.12.2009 9:03am
ShelbyC:

Are you really suggesting that the government has the authority to prohibit individuals from using the word "cunt"?


They do not, except in a context where it meets the legal definition of obscenity. They can't burn all the books that contain the c-word.
6.12.2009 9:15am
ShelbyC:

But when an elected union negotiates terms on behalf of its members, employees are "compelled" to accept the condition. You can quit a union job to work elsewhere, too.



Aren't libertarian problems with unions centered around the fact that employers are limited in how the can deal with them (can't fire striking workers, etc)? I don't know a lib who would object if a union negociated those contracts without govt protections, although maybe some folks have problems with monopolies, I dunno.
6.12.2009 9:20am
theobromophile (www):
Small point: there is nothing preventing people from listening to sexist radio programming while at work. They should just use headphones (or, if they still need to hear other things going on around them, one ear bud only). It's inaccurate to state that one's First Amendment rights to hear speech automatically intrude on someone else's rights to not hear it. Like a noise ordinance, headphones (or anything else that has the same result) would be a way of ensuring that one person's speech does not become another person's problem.

For that reason, I cannot agree with Prof. Volokh on this. The ban on a hostile work environment does not necessarily implicate the First Amendment; it certainly does not restrict all, or even most, protected speech. Use headphones. Keep the porn and cheesecake photos to a part of your office or computer that doesn't involve showing them to other people.
6.12.2009 9:21am
Zaphod Beeblebrox:
Snaphappy

I really do not see how this is not a time/place/manner restriction. The government says you must not have a hostile work environment, which may well mean that your employer is compelled to restrict your speech from certain sexist or racist topics. You are still free to express your views however you wish outside of the workplace. How is this a meaningful restriction on speech?

TPM restrictions have to be content neutral.
6.12.2009 9:23am
Laura(southernxyl) (mail) (www):
Gabriel, do you think that there is any kind of harassment in the workplace that an employee should not have to put up with, and should be able to get the government's backing to make it stop? If the boss tells the secretary that she has to have sex with him to keep her job, she should just quit and find another?
6.12.2009 9:34am
Gabriel McCall (mail):
It's funny how libertarians and conservatives make this argument when employers impose conditions that employees think are wrong. But when an elected union negotiates terms on behalf of its members, employees are "compelled" to accept the condition. You can quit a union job to work elsewhere, too.

I don't understand the argument you're making. You seem to be suggesting that nonliberals are inconsistent or hypocritical in some way regarding unions, but I don't quite follow exactly how. Can you explain?
6.12.2009 9:40am
Hans Bader:
If you object to Eugene Volokh's post, it's because you TOTALLY MISSED THE POINT.

He is not saying that a private employer should have to put up with raunchy speech, only that the GOVERNMENT should not conscript it into banning such speech. When the government imposes tort liability, and awards damages to someone for speech (in a defamation or harassment lawsuit), that is state action subject to First Amendment limits. See New York Times v. Sullivan (1964) (defamation lawsuit is subject to First Amendment limits); Lyle v. Warner Bros. (Cal. 2006) (Chin, J., concurring) (sexual harassment suit is subject to First Amendment limits).

This is called the "state action" doctrine, which any lawyer with an

This distinction is well-rooted in a million cases (see, e.g., Truax v. Raich (1916) (fact that employer could voluntarily fire someone for a reason doesn't mean government could make it do so).

I don't like Playboy, and no one could force Playboy to keep publishing crap, but that does not mean the government should allow people to sue it for publishing crap.
6.12.2009 10:22am
Hans Bader:
While private employers can voluntarily ban racist and sexist speech, the government's attempt to make them do so through Title VII legal mandates and lawsuits is subject to First Amendment scrutiny. See New York Times v. Sullivan (Supreme Court, 1964) (defamation lawsuits are subject to First Amendment limits); Korb v. Lehman (4th Cir. 1990) (government can't make private employer fire employee for protected speech, even though private employer could have done so voluntarily); Lyle v. Warner Bros. (Cal. 2006) (Chin, J., concurring) (sexual harassment suit is subject to First Amendment limits); Truax v. Raich (Supreme Court, 1916) (fact that employer could voluntarily fire someone for a reason doesn't mean government could make it do so).

Since harassment law doesn't fall within traditional First Amendment regulations and exceptions, it has to be narrowly tailored, which banning overheard speech is not.

Harassment law isn't a time/place/manner restriction on speech, because it isn't content-neutral, because every place is someone's workplace (think street vendors and movie theater ushers) and because it applies even outside the workplace to interactions between employees outside the workplace that affect their relations in the workplace, and because recent court rulings have applied it to virtually all societal settings ("hostile EDUCATIONAl environment," "hostile HOUSING environment," "hostile PUBLIC ACCOMMODATIONS environment").

So it has to satisfy strict scrutiny --- which it can only if Professor Volokh's narrowing construction of harassment law is adopted, or if the construction of courts that heed statutory language limiting such claims is adopted (that is, requiring proof that the plaintiff was subjected to "intentional" discrimination "based on her sex").
6.12.2009 10:42am
LarryR (mail):
When so many regular readers of a fairly libertarian law blog show they are fans of laws that limit freedom of expression, what chance does that freedom have? I predict it will continue to be steadily chipped away. And at each chipping people like many of the commenters above will explain why freedom of expression shouldn't apply in this or that particular situation.
6.12.2009 10:44am
Laura(southernxyl) (mail) (www):
Larry, my personal philosophy here: On the continuum with anarchy on one extreme and totalitarianism on the other, libertarianism definitely falls on the anarchy side. But it is not all the way over there. Discussions such as these are useful for figuring out where on that continuum we ought to be exactly, and on a libertarian blog of all places, people ought to be able to disagree. In fact, the ability to disagree is what keeps us from sliding all the way one way or the other.
6.12.2009 10:53am
Hans Bader (mail) (www):
I don't like raunchy radio programs, but that doesn't mean the government should ban listening to them, much less do so under the weak argument that they constitute sex discrimination. (Private employers are of course free to ban such programs from their workplace -- but the government shouldn't use lawsuits to make them do so).

The April 2008 decision in Reeves v. C.H. Robinson Worldwide, 525 F.3d 1139 (11th Cir. 2008), was inconsistent with at least two of the Eleventh Circuit's own past decisions: Baldwin v. Blue Cross, which defined sexual harassment as being a form of disparate TREATMENT -- not disparate IMPACT -- and Cross v. Alabama, which said that in the Eleventh Circuit (unlike some other circuits), discriminatory INTENT is required for a Title VII sexual harassment claim.

In Cross v. Alabama, 49 F.3d 1490, 1507-08 (11th Cir. 1995), the Eleventh Circuit held that “the elements of the two causes of action [sexual harassment claims under Title VII and the Fourteenth Amendment] are the same” in the Eleventh Circuit (unlike some other circuits), meaning that a sexual harassment plaintiff “must prove discriminatory motive or purpose.”

The Supreme Court has made clear that the fact that a woman is adversely affected, and that an employer knows this, is not enough to satisfy this exacting standard of showing a discriminatory PURPOSE unless the employer intends to treat the female employee differently: “'Discriminatory purpose,’ however, implies more than intent as volition or intent as awareness of consequences. . .It implies that the decisionmaker . . . selected or reaffirmed a particular course of action at least in part 'because of,' not merely 'in spite of,' its adverse effects upon an identifiable group.” Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256, 279 (1979).

Thus, for the plaintiff to prevail, she must show that her co-workers aimed offensive comments at her based on her sex (or broadcast the offensive comments specifically to annoy her based on her sex), not just that she was reasonably offended by them and that they were pervasive.

“Title VII does not prohibit profanity alone, however profane. It does not prohibit harassment alone, however severe and pervasive. Instead, Title VII prohibits discrimination, including harassment that discriminates based on a protected category such as sex. Because a claim of sexual harassment under Title VII is a claim of disparate treatment, in order to prevail a plaintiff must show that similarly situated persons not of her sex were treated differently and better.” Baldwin v. Blue Cross, 480 F.3d 1287, 1301-02 (11th Cir. 2007); see also Lyle v. Warner Bros., 132 P.3d 211 (Cal. 2006) (sexual jokes not aimed at plaintiff did not support her sexual harassment claim).

Even if Title VII reached "disparate impact," and even if provisions like 42 USC 1981a did not bar compensatory damages in such cases, it would still be a mistake to automatically equate raunchy language or discussions of sex with discrimination based on sex.

Assuming that sexual speech is disproportionately offensive to female employees and thus has a “disparate impact” on them — as many sexual harassment rulings do — raises serious equal-protection problems, since it rests on a gender stereotype. In striking down a statute banning “obscene, profane, indecent, vulgar, or suggestive” communications to women, a court observed that laws “based on ‘old notions’ such as a belief that females should be afforded special protection from ‘rough talk’ because of their perceived ’special sensitivities’ can no longer withstand equal protection scrutiny.” See In re Joseph T., 430 S.E.2d 523, 524 (S.C. 1993). Federal employment laws should not be interpreted broadly when doing so would raise serious constitutional issues. (See NLRB v. Catholic Bishop of Chicago, 440 U.S. 490, 499-501 (1979); Edward J. DeBartolo v. Fla. Gulf Coast Building and Constr. Trades Council, 485 U.S. 568, 575 (1988) (limiting law's reach to avoid potential free speech problem)).

Moreover, treating raunchy language that offends a single female employee ignores limits contained in “disparate impact” law itself. Disparate impact claims typically require proof that an employer practice systematically excludes female or minority employees, and can’t be based on the impact on just one employee or a small number of employees. See Coe v. Yellow Freight, 646 F.2d 444 (10th Cir. 1981). Sexual harassment cases typically involve just a single plaintiff, who sometimes sues even if other employees of the same gender are perfectly happy with their workplace, or if there are no other employees of her gender in the workplace. In Reeves, the plaintiff seems to have been the only female employee adversely affected by the conduct she recounted.

An employer that fails to prevent sexual or vulgar discussions in the workplace should not be held liable simply because female employees overhear them and claim to be disproportionately offended by them. Some judges seem to grasp this rule, and do not allow sexual harassment claims to be brought just because the plaintiff was offended by sexual or vulgar speech. See, e.g., Lyle v. Warner Bros., 132 P.3d 211 (Cal. 2006); Scusa v. Nestle U.S.A., Inc., 181 F.3d 958 (8th Cir. 1998); Hocevar v. Purdue Frederick Co., 223 F.3d 721, 737 (8th Cir. 2000); Duncan v. Denver, 397 F.3d 1300 (10th Cir. 2005); Butler v. Ysleta Independent School District, 161 F.3d 263, 270-71 (5th Cir. 1998); Pasqua v. Metropolitan Life Ins., 101 F.3d 514, 517 (7th Cir. 1996); Gallant v. Board. of Trustees, 997 F. Supp. 1231, 1232, 1234-35 (N.D. Cal. 1998).

The 2008 ruling in Reeves justified its jettisoning of the discriminatory intent requirement by saying that such intent is not required in racial harassment cases. But even if that were in fact true (and it does not appear to be in some circuits, see Caver v. City of Trenton, 420 F.3d 243 (3d Cir. 2005) (holding that racial harassment plaintiff, just like sexual harassment plaintiff, must show that “(1) he suffered intentional discrimination because of his [race]” and “(2) the discrimination was pervasive and regular”), circuit panels are bound by their own past sexual harassment precedents whether or not they seem consistent with other areas of the law, like racial harassment.

And prior Eleventh Circuit rulings, like Cross v. State of Alabama, 49 F.3d 1490, 1507-08 (11th Cir. 1995), had made very clear that a plaintiff “must prove discriminatory motive or purpose” under BOTH Title VII and the Equal Protection Clause (Section 1983), because “the elements of the two causes of action are the same.” Eleventh Circuit judges had reiterated that understanding over and over again. See, e.g., Mitchell v. Pope, 189 Fed. Appx. 911, 913, 2006 WL 197600111, *1 (11th Cir. July 14, 2006) (”elements of the two causes of action are the same”); Downing v. Bd. of Trustees of Univ. of Alabama, 321 F.3d 1017, 1023 (11th Cir. 2003) (”Cross holds that the elements of a sexual harassment claim under Title VII and the Equal Protection Clause are the same — meaning that the employee must prove that the state actor intended to discriminate because of the employee’s sex”) (opinion later withdrawn for other reasons); Downing, 321 F.3d at 1022 n.9 (In Title VII, “this language is aimed at intentional discrimination, and to prove a violation, a plaintiff must profer either direct or indirect evidence of the employer’s discriminatory intent”).

Moreover, requiring discriminatory intent or purpose is consistent with how courts handle other types of Title VII harassment cases based on the very same language, such as religious harassment cases, where discriminatory treatment and intent are required. See Rivera v. Puerto Rico Aqueduct and Sewers Authority, 331 F.3d 183, 190 (1st Cir. 2003) (rejecting religious harassment claim because of absence of discriminatory purpose; “Rosario asserts that the lyrics of the song are offensive to her, given her deep religious convictions. We do not doubt this is so. But the question is not whether a religious person could find the song offensive; it is whether religious animus prompted Rivera to sing it to her”). The panel did not explain why those cases should be given lesser weight in sexual harassment jurisprudence than racial harassment cases.

Getting rid of the requirement of discriminatory intent, and allowing suits over overheard comments that have a disproportionate impact on one gender or the other, also raises serious First Amendment problems. See Lyle v. Warner Bros., 132 P.3d 211, 300 (Cal. 2006) (Chin, J., concurring) (sexual harassment liability cannot constitutionally be applied to creative speech, such as that involved in books, newspapers, or television, that is "not directed at or about the plaintiff"). Positions on many sexual or gender issues like feminism, gender-based affirmative action, and how to define sexual harassment, are offensive to some listeners, and are sometimes alleged to be disproportionately more so to one gender than the other (there is a political gender-gap). Moreover, the discriminatory intent requirement is one of the few elements of harassment law that can keep it relatively clear and manageable.

"Sexual harassment" under federal case law is a term of art referring to whatever speech or conduct gives rise to a specified state -- a "hostile work environment" -- not to "harassment" as defined in the dictionary, or anything closely resembling a traditional tort, like a pattern of invasive conduct by one individual towards another. To be sure, a hostile environment can be created by one malicious individual repeatedly pestering a plaintiff. But it can also (if discriminatory intent is not required) be created gradually by many different people each individually making just one offensive statement within earshot of the plaintiff, if their statements cumulatively add up to a hostile environment over time, even if they harbored no ill-will or discriminatory animus towards the plaintiff. The result, as UCLA Law Professor Eugene Volokh notes, is to effectively force employers to suppress a vast array of otherwise-protected speech. If the discriminatory-intent requirement is not enforced, speech such as classical nude paintings and religious articles in employee newsletters would become potential building blocks of a hostile-environment claim. (By "discriminatory intent," I merely mean gender-based differential treatment; malice is not always required. See UAW v. Johnson Controls, 499 U.S. 187 (1991)).

To be sure, there are other elements of a harassment claim, like the requirement that the plaintiff show that the conduct complained of is "unwelcome" and occurred "based on sex." But the very court rulings that ignore the intent requirement often have gutted those other elements, so that they frequently add nothing relevant to the requirement of a "hostile work environment."

For example, people have responded to my past observation that a harassment plaintiff must show discriminatory intent by noting that harassment is only actionable if it is "unwelcome," and suggesting that the fact that harassment is "unwelcome" somehow makes it intentional even absent discriminatory motivation or targeting of the plaintiff. See Meritor Savings Bank v. Vinson, 477 U.S. 57, 68 (1986) (the essence of "any sexual harassment claim is that" the conduct was "unwelcome").

But the courts that don't enforce the requirement of discriminatory intent also often interpret "unwelcomeness" so broadly as to make it meaningless as a limit on harassment claims. They assume that harassment is "unwelcome" whenever a plaintiff is subjectively offended by it, even if the defendant had no way of knowing that, or even if the plaintiff used language similar to the defendant, which could have led the defendant to believe that the language was permissible. See, e.g., Galloway v. General Motors, 78 F.3d 1164 (7th Cir. 1996) (dictum); Gary v. Tyson Foods (W.D. Mo. 1999). This matters because, as Fifth Circuit Judge Edith Jones has observed, a common fact pattern in harassment cases is a plaintiff who sues over comments similar to those she herself has frequently made.

Defined purely subjectively, "welcomeness" thus adds nothing to the separate legal requirement that the plaintiff's work environment be "subjectively hostile." See, e.g. Harris v. Forklift Systems, 510 U.S. 17, 21-22 (1993) (work environment must be subjectively hostile for plaintiff to recover); Mendoza v. Borden, 195 F.3d 1238, 1245-1246 (11th Cir. 1999)(same). That violates the principle of tort law that one element of a tort should not be read as being duplicated, or subsumed by, another element of the tort.

An old Eleventh Circuit precedent interpreted unwelcomeness as having an objective component, so that a plaintiff who incited a defendant to say offensive things by saying similarly offensive things of her own could not sue based on them. See Henson v. City of Dundee, 682 F.2d 897, 902 (11th Cir. 1982) (to show unwelcomeness, plaintiff must show that she neither "solicited nor incited" the conduct and that she "regarded the conduct as undesirable or offensive"). Thus, it served a notice function that protected some speech. See, e.g., Brief of Center for Individual Rights and Boston Coalition for Freedom of Expression as Amici Curiae in Support of the Petition for Certiorari in Avis Rent A Car System v. Aguilar, 529 U.S. 1138 (2000) (citing cases and EEOC rulings that interpreted "unwelcome" as having an objective component).

Some other federal appeals courts, like the Eighth Circuit, continue to follow this rule, barring plaintiffs from hypocritically suing the employer for comments made by their co-workers that are similar to those made by the plaintiffs themselves, under the theory that they have objectively welcomed such comments. See, e.g., Scusa v. Nestle U.S.A., Inc., 181 F.3d 958 (8th Cir. 1998); Hocevar v. Purdue Frederick Co., 223 F.3d 721, 737 (8th Cir. 2000).

But some courts (especially state courts) do not, viewing the requirement as unfashionable and outdated. By interpreting "unwelcomess" as purely subjective, they have effectively dispensed with any notice to the accused, who is now deemed a harasser if his speech unintentionally creates a hostile environment.

What is a "hostile environment" can be very vague, as a federal appeals court noted in Pasqua v. Metropolitan Life Ins. Co, 101 F.3d 514 (7th Cir. 1996). Indeed, a Maryland civil rights agency warned that "the legal boundaries" of what is actionable "are so poorly marked," that "the best course of action is to avoid" any potentially offensive remarks. Reflecting the ambiguity, federal appeals courts differ greatly among themselves as to what conduct they believe is severe or pervasive enough to create a hostile environment. Within the same district, different juries often find starkly similar conduct to either not constitute harassment at all, or to be so patently and egregiously harassing as to warrant punitive damages. I used to work as an attorney at the U.S. Department of Education's Office for Civil Rights, and there was certainly nothing clear about how we interpreted our sexual harassment guidance.

When someone other than the courts is enforcing a ban on harassment, the courts immediately recognize the disturbing vagueness of the "hostile environment" concept. For example, the Ninth Circuit overturned a public college professor's discipline for unintentionally creating a hostile environment on vagueness grounds in Cohen v. San Bernardino Valley College, 92 F.3d 968 (9th Cir. 1996). And the Oregon Supreme Court, on state constitutional grounds, overturned a civil-rights agency's fine on an evangelical Christian employer for unknowingly creating a hostile work environment through religious proselytizing in Meltebeke v. Bureau of Labor and Industries, 903 P.2d 351, 363 (Or. 1995), even though it found that the conduct indeed violated the agency's hostile-environment harassment rule, because ignoring the employer's intentions would have a chilling effect on freedom of religion. And in Dambrot v. Central Michigan University, 55 F.3d 1177 (6th Cir. 1995), the court struck down a college's hostile environment harassment code as unconstitutionally vague, since whether the code was violated turned partly on the subjective reactions of listeners.

But the courts are sometimes blind to the vagueness of the "hostile work environment" concept when they themselves apply harassment law through damages liability -- even though the First Amendment vagueness doctrine applies to civil as well as criminal liability, see Bullfrog Films v. Wick, 847 F.2d 502 (9th Cir. 1998), and the Supreme Court has long recognized that the "fear of damage awards" in a lawsuit can chill speech even more than "the fear of prosecution." See New York Times v. Sullivan, 376 U.S. 264, 277 (1964).
6.12.2009 10:53am
Dilan Esper (mail) (www):
Theo's got it basically right. The issue is that if the employer takes steps to ensure that speech that would, if broadcast publicly, create a discriminatory evironment, is kept private, nobody's rights are violated. To summarize a case I worked on, you have a right to read playboy in the firehouse, but not to post the centerfolds on the bulletin board.

The problem with Prof. Volokh's 'one to one' test is this: imagine a store manager repeatedly announcing over the store PA system that his female employees are a bunch of stupid cunts. That is clearly 'one to many' speech. Anyone want to explain why it is constitutionally protected?
6.12.2009 11:08am
DerHahn (mail):
imagine a store manager repeatedly announcing over the store PA system that his female employees are a bunch of stupid cunts.

That's a strawman. Professor Volokh's 'one to one' test isn't predicated that the speech occur privately but that the communication comes directly from the employeer (or presumably, an employeer's agent) so your case isn't constitutionally protected.
6.12.2009 11:25am
einhverfr (mail) (www):
Hmmm.... Thinking about this..... I can see two distinct points of view here. Personally, I think that there are some key things missing from the analysis in the post, and these help to clarify the issue.

The first is that hostile workplace law is supposed to provide a remedy when an employer creates a hostile environment which is sufficiently pervasive and severe as to substantially undermine the ability of an individual to fairly compete in the workplace. In determining whether sexual harassment occurred, I think it is reasonable that the totality of the environment is considered, and the radio station would be a part of it.

However, this isn't a case as far as whether the radio station CAN be considered, rather it is an appeal of a summary judgement finding that no such harassment occurred. Both the district court (AFAICS) and the appeals court did consider the radio broadcast (as they should have). The question is whether a reasonable jury could find a sufficient factual basis to support a sexual harassment judgement. This means that the facts are all assumed to be shown in the most favorable light to the non-moving party, and necessary questions of law are resolved. I am not entirely sure that a summary judgement motion should have been granted, but I don't agree with the panel either.

It seems to me, however, that the court here is saying something very dangerous. The court seems to be saying that the "severe and pervasive" prong is met when an environment goes beyond mere ordinary workplace tribulations. In doing so, the court seems to create a cause of action merely where one diverges from the norm. If everyone played sexually explicit radio stations at work, then this would be OK, but since few other businesses do, then it is the basis for a claim. This strikes me as extremely dangerous.
6.12.2009 11:29am
einhverfr (mail) (www):
Whit:

I dunno.... Some folk might think that being forced to listen to loud country music might amount to torture ;-)
6.12.2009 11:31am
ShelbyC:

Theo's got it basically right. The issue is that if the employer takes steps to ensure that speech that would, if broadcast publicly, create a discriminatory evironment, is kept private, nobody's rights are violated.


But why wouldn't they just ban it? That's more effective, no? And that's what they actually do.
6.12.2009 11:31am
Steve H (mail):
OK, maybe I'm missing something obvious here, but how does the First Amendment come into this at all? The First Amendment, as far as I can tell, has never meant that anyone can say anything they want to whomever they want whenever they want.

The First Amendment does not prevent the government from putting someone in jail for soliciting a crime: "I'll pay you a hundred bucks to shoot my boss."

The First Amendment does not prevent the government from putting someone in jail for saying, "I am going to shoot the president," or "I am going to blow up this plane."

The First Amendment does not prevent the government from imposing civil liability for damages on someone who says "I will not perform my contract."

The First Amendment does not prevent the government from imposing civil liability for damages on a boss who uses racial epithets in addressing her employees.

The First Amendment does not prevent the government from imposing civil liability for damages on a boss who tells his subordinate, "I will give you a promotion if and only if you have sex with me."

So how can the First Amendment even be a consideration in this case, where the employer allows his employees to use words, images, and radio broadcasts to create a hostile work environment?
6.12.2009 11:53am
ShelbyC:

So how can the First Amendment even be a consideration in this case, where the employer allows his employees to use words, images, and radio broadcasts to create a hostile work environment?


Um, because the First Amendment does prevent the government from punishing alot of speech that can create a hostile work environment, or from supressing it by punishing third parties. The first amendment wouldn't be a consideration if the law were limited to the exceptions you outline above.
6.12.2009 12:11pm
Dilan Esper (mail) (www):
That's a strawman. Professor Volokh's 'one to one' test isn't predicated that the speech occur privately but that the communication comes directly from the employeer (or presumably, an employeer's agent) so your case isn't constitutionally protected.

I am not sure that is a correct characterization of Professor Volokh's position, but if it is, let's change the example a bit. Suppose the manager, deciding that he can't get away with saying it himself, finds a station on satellite radio that consists of male hosts making misogynistic statements such as that all working women are stupid cunts. He then insists that this station be played, at full volume, over the store PA system during working hours. Female employees complain and he refuses to change the station. Is that constitutionally protected?

Indeed, if I understand YOUR position correctly (which I do not understand to necessarily be Prof. Volokh's position), the employer has greater protection broadcasting someone else's speech than he has to speak himself. That makes no sense at all.
6.12.2009 12:12pm
Dilan Esper (mail) (www):
But why wouldn't they just ban it? That's more effective, no? And that's what they actually do.

Banning it, Shelby, gets to the actual First Amendment limitation. The government cannot require that workplaces ban it, and employees can even sue public employers who try to ban it.

Now I realize that this means that we have a problem with private employers being insufficiently protective of free speech in situations where a hostile environment is NOT created. That is a real problem. But the way to deal with that is for Congress to incorporate protections of free speech into Title VII, not to use the Constitution to gut Title VII's legitimate protections against actual hostile work environments.
6.12.2009 12:15pm
Hans Bader (mail) (www):
You can't get around the First Amendment by labeling speech that offends you as "hostile work environment," anymore than you can get around it by labeling speech as an "act" like "intentional infliction of emotional distress."

That's what the Supreme Court said in Hustler Magazine v. Falwell (1988), where it held that a damage award in a lawsuit by one private party against another over sexually offensive parody violated First Amendment.

That's what it said in NAACP v. Claiborne Hardware Co. (1982), where it said that political speech that interferes with trade can't be restricted because it is defined by state law as interference with contractual relations or restraint of trade.

The First Amendment does not mean you can say anything you want. It does mean that you can say things that address controversial issues, or advance job performance, even if it has the unintended side effect of creating a "hostile work environment" for offended listeners who overhear it. See Lyle v. Warner Bros., 132 P.3d 211, 300 (Cal. 2006) (Chin, J., concurring) (sexual harassment liability cannot constitutionally be applied to creative speech, such as that involved in books, newspapers, or television, that is “not directed at or about the plaintiff”).

"Listeners' reaction to speech is not a content-neutral basis for regulation." Forsyth County v. Nationalist Movement, 505 U.S. 123, 134 (1992). But a hostile environment is defined by a listener's reaction to speech.
See, e.g. Harris v. Forklift Systems, 510 U.S. 17, 21-22 (1993) (work environment must be subjectively hostile for plaintiff to recover); Mendoza v. Borden, 195 F.3d 1238, 1245-1246 (11th Cir. 1999)(same).

While private employers can voluntarily ban racist and sexist speech, the government's attempt to make them do so through Title VII legal mandates and lawsuits is subject to First Amendment scrutiny. See New York Times v. Sullivan (Supreme Court, 1964) (defamation lawsuits are subject to First Amendment limits); Korb v. Lehman (4th Cir. 1990) (government can't make private employer fire employee for protected speech, even though private employer could have done so voluntarily); Lyle v. Warner Bros. (Cal. 2006) (Chin, J., concurring) (sexual harassment suit is subject to First Amendment limits); Truax v. Raich (Supreme Court, 1916) (fact that employer could voluntarily fire someone for a reason doesn't mean government could make it do so).
6.12.2009 12:17pm
ShelbyC:
Dilan:

But the way to deal with that is for Congress to incorporate protections of free speech into Title VII, not to use the Constitution to gut Title VII's legitimate protections against actual hostile work environments.



I'm not sure why you say they're legitimate. Don't people have a constitutional right to be free from gove interference in their speech, even if it creates a hostile work environment? Keep in mind that speech saying that white men don't make good judges because they had a privileged upbringing can create a hostile environment almost as easily as calling a female customer a "stupid c---" behind her back.

And how do you address the point above that almost everywhere, including bars, parks, and even private homes can be someone's workplace?
6.12.2009 12:24pm
ShelbyC:

Suppose the manager, deciding that he can't get away with saying it himself, finds a station on satellite radio that consists of male hosts making misogynistic statements such as that all working women are stupid cunts. He then insists that this station be played, at full volume, over the store PA system during working hours. Female employees complain and he refuses to change the station. Is that constitutionally protected?


I don't understand. Would the speech be constitutionally protected if people didn't have to hear it at work? What's the 1st amendment reason why it makes a difference if people have to hear it at work?
6.12.2009 12:28pm
Dilan Esper (mail) (www):
You can't get around the First Amendment by labeling speech that offends you as "hostile work environment," anymore than you can get around it by labeling speech as an "act" like "intentional infliction of emotional distress."

You are assuming a very much contested fact. Jerry Falwell was CLEARLY trying to "get around" the First Amendment, specifically, the restrictions on libel suits against public figures.

Is there any evidence that hostile environment harassment plaintiffs trying to "get around" the First Amendment in the same fashion as Falwell was?

Sexual harassment is much more of the "verbal act" problem, which I admit impacts free speech, but in a much different way than the defamation and emotional distress cases. The verbal act problem is that sometimes sex discrimination, like other forms of wrongful conduct, takes the form of words. For instance, an oral agreement to engage in an illegal transaction, like a bet or a drug deal or a murder contract, isn't protected speech just because it is expressed in words.

Similarly, I don't think anyone would argue that quid pro quo sexual harassment ("you're fired unless you give me oral sex right now") would constitute protected speech.

So the issue is what happens when the sex discrimination takes the form of words that make it impossible for a female employee to do her job. And it seems to me to be extremely plausible to say that so long as the harassment is shown to be severe or pervasive and is shown to impair a reasonable woman's ability to do her job, there's no First Amendment limitation on prohibiting it; however, if the alleged harassment is not severe, not pervasive, and/or wouldn't impair a reasonable woman's ability to do her juob, then it is constitutionally protected.
6.12.2009 12:28pm
Dilan Esper (mail) (www):
Don't people have a constitutional right to be free from gove interference in their speech, even if it creates a hostile work environment?

I missed the part where the Constitution was originally understood, or plausibly interpreted, to protect an employer's right to speak in a crude manner in order to annoy, embarrass, and drive their female employees out of the workplace.

In other words, my short answer is "no".
6.12.2009 12:30pm
ShelbyC:

I missed the part where the Constitution was originally understood, or plausibly interpreted, to protect an employer's right to speak in a crude manner in order to annoy, embarrass, and drive their female employees out of the workplace.


So are you arguing that laws that prevent employers from speakin in a manner (which isn't necessarily a crude manner) don't "abridg[e] the freedom of speech"?
6.12.2009 12:33pm
Dilan Esper (mail) (www):
So are you arguing that laws that prevent employers from speakin in a manner (which isn't necessarily a crude manner) don't "abridg[e] the freedom of speech"?

I am arguing that so long as the "severe or pervasive" and "impairs a reasonable woman's ability to work" prongs of the hostile environment test are scrupulously enforced (which I will admit does not always happen!), verbal acts of sexual discrimination are not protected by the First Amendment. And while this issue has never directly come before the US Supreme Court, my position is supported by the majority of the caselaw on this subject as well as implicitly by the Supreme Court opinions delineating the scope of sexual harassment law (including several unanimous opinions).
6.12.2009 12:37pm
ShelbyC:

And while this issue has never directly come before the US Supreme Court, my position is supported by the majority of the caselaw on this subject as well as implicitly by the Supreme Court opinions delineating the scope of sexual harassment law (including several unanimous opinions).



Yeah, Dave B and EV have done some pretty good work discussing that caselaw. I have a though time buying the argument that you can supress constutionally protected speech simply be outlawing "any action that has X effect" and then applying that law to protected speech, which I believe is what you are arguing.

For example, can Skokie, Il simply outlaw creating a hostile work environment based on race, and then prevent folks from parading by store windows expressing hostile messages?
6.12.2009 12:48pm
Hans Bader (mail) (www):
The whole point of the hostile work environment concept is to suppress speech because it is offensive. It is utterly unlike most speech restrictions, which turn on something other than the communicative impact of speech. Thus, it must be subject to First Amendment limits, like strict scrutiny, to keep it in check, even though it serves important goals.

As the Supreme Court has said quite clearly, "listeners' reaction to speech is not a content-neutral basis for regulation." Forsyth County v. Nationalist Movement, 505 U.S. 123, 134 (1992).

"If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable." Texas v. Johnson (Supreme Court, 1989).

Yet, a hostile environment is defined by a listener's reaction to speech. See, e.g. Harris v. Forklift Systems, 510 U.S. 17, 21-22 (1993) (work environment must be subjectively hostile for plaintiff to recover); Mendoza v. Borden, 195 F.3d 1238, 1245-1246 (11th Cir. 1999)(same). As a federal district court in the Sixth Circuit noted, if the plaintiff is not offended, there is no Title VII violation.

Dilan says that Jerry Falwell was trying to get around limits on defamation law by bringing his intentional infliction lawsuit, in the lawsuit over a sexually offensive parody the Supreme Court rejected on First Amendment grounds in Hustler Magazine v. Falwell (1988).

That's true of sexual harassment law as well. It's also an end run around First Amendment limits on defamation and other torts. See Bowman v. Heller (Mass. Superior Court) (female plaintiff recovered for sexual harassment based on sexually offensive parody of her in a union election).

Defamation law doesn't reach even 1 percent as much speech as the hostile work environment concept, which bans more speech than all speech restrictions combined.

Plaintiffs use sexual harassment law to get around First Amendment limits on other torts all the time.

In defamation law, truth is a defense. But in a case before Judge Sand, a police department employee sued for sexual harassment based on co-workers discussing the TRUE fact that she had once been a prostitute. Truth was not a defense.

In obscenity law, it's a defense that the speech has political or artistic or social value. Not so in sexual harassment law. Thus, in Lyle v. Warner Bros., the TV studio defeated a lawsuit against it by an employee complaining about the creative process for writing an adult-oriented sitcom (Friends) only because the California Supreme Court adopted statutory limits on sexual harassment claims (weeding out most claims involving "undirected" speech not aimed the plaintiff) that are inconsistent with Dilan's broad conception of what a hostile work environment is.


The defendant in Lyle pointed out that the plaintiff was suing over comments that even the FCC would not have considered to be indecent or banned by federal indecency regulations over the air.

But that didn't stop the California Court of Appeal from allowing the suit, which was dismissed only after the California Supreme Court narrowed the reach of harassment law in a way contrary to Dilan's conception of sexual harassment.
6.12.2009 12:53pm
Steve H (mail):

Um, because the First Amendment does prevent the government from punishing alot of speech that can create a hostile work environment ... .


Can you give examples where Title VII claims have been denied on the ground that the speech was protected under the First Amendment? I have only skimmed Lyle v Warner Brothers, but it looks to me like the court held that the plaintiff hadn't established a discriminatory environment, not that it was a discriminatory environment but the claim was barred by the First Amendment.


Don't people have a constitutional right to be free from gove interference in their speech, even if it creates a hostile work environment?



So are you arguing that laws that prevent employers from speakin in a manner (which isn't necessarily a crude manner) don't "abridg[e] the freedom of speech"?


That was the point of my list of examples above. There have always been wide areas of speech subject to government "interference." Laws that prevent employers from speaking in a certain manner clearly abridge the freedom of speech, but not every abridgement of speech implicates the First Amendment.
6.12.2009 12:57pm
Hans Bader (mail) (www):
Justice Chin's concurrence in Lyle v. Warner Bros. said that certain speech, like sexually offensive comments made in the workplace in the process of producing the adult-oriented sitcom "Friends," was protected even if it DID create a "hostile work environment" for a female employee who witnessed it. See Lyle v. Warner Bros., 132 P.3d 211, 300 (Cal. 2006) (Chin, J., concurring) (sexual harassment liability cannot constitutionally be applied to creative speech, such as that involved in books, newspapers, or television, that is “not directed at or about the plaintiff”).

So "hostile work environment" is not a justification for mindlessly suppressing speech or pretending that banning speech that creates a "hostile environment" raises no First Amendment issues. Compare Dambrot v. Central Michigan University, 55 F.3d 1177 (6th Cir. 1995) (invalidating hostile-environment racial harassment policy as overbroad and vague): UWM Post, Inc. v. Board of Regents of Univ. of Wisconsin System, 774 F.Supp. 1163 (E.D. Wis. 1991) ("since Title VII is merely a statute, it cannot supersede the requirements of the First Amendment").

The majority of the California Supreme Court in Lyle got rid of the sexual harassment lawsuit over presumably-protected speech, but only by interpreting the state sexual harassment law more narrowly than the California Court of Appeal consistently had (see the Mogilesky case, for example) as requiring a showing of harassment based on the plaintiff's sex.

Most of the comments above assume that you don't need to show that the offensive speech was based on your sex.

So Lyle DOES show that their conception of sexual harassment runs head long into protected speech.

The whole point of the hostile work environment concept is to suppress speech because it is offensive. It is utterly unlike most speech restrictions, which turn on something other than the communicative impact of speech. Thus, it must be subject to First Amendment limits, like strict scrutiny, to keep it in check, even though it serves important goals.

As the Supreme Court has said quite clearly, "listeners' reaction to speech is not a content-neutral basis for regulation." Forsyth County v. Nationalist Movement, 505 U.S. 123, 134 (1992).

"If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable." Texas v. Johnson (Supreme Court, 1989).

Yet, a hostile environment is defined by a listener's reaction to speech. See, e.g. Harris v. Forklift Systems, 510 U.S. 17, 21-22 (1993) (work environment must be subjectively hostile for plaintiff to recover); Mendoza v. Borden, 195 F.3d 1238, 1245-1246 (11th Cir. 1999)(same). As a federal district court in the Sixth Circuit noted, if the plaintiff is not offended, there is no Title VII violation.

Dilan says that Jerry Falwell was trying to get around limits on defamation law by bringing his intentional infliction lawsuit, in the lawsuit over a sexually offensive parody the Supreme Court rejected on First Amendment grounds in Hustler Magazine v. Falwell (1988).

That's true of sexual harassment law as well. It's also an end run around First Amendment limits on defamation and other torts. See Bowman v. Heller (Mass. Superior Court) (female plaintiff recovered for sexual harassment based on sexually offensive parody of her in a union election).

Defamation law doesn't reach even 1 percent as much speech as the hostile work environment concept, which bans more speech than all speech restrictions combined.

Plaintiffs use sexual harassment law to get around First Amendment limits on other torts all the time.

In defamation law, truth is a defense. But in a case before Judge Sand, a police department employee sued for sexual harassment based on co-workers discussing the TRUE fact that she had once been a prostitute. Truth was not a defense.

In obscenity law, it's a defense that the speech has political or artistic or social value. Not so in sexual harassment law. Thus, in Lyle v. Warner Bros., the TV studio defeated a lawsuit against it by an employee complaining about the creative process for writing an adult-oriented sitcom (Friends) only because the California Supreme Court adopted statutory limits on sexual harassment claims (weeding out most claims involving "undirected" speech not aimed the plaintiff) that are inconsistent with Dilan's broad conception of what a hostile work environment is.

The defendant in Lyle pointed out that the plaintiff was suing over comments that even the FCC would not have considered to be indecent or banned by federal indecency regulations over the air.

But that didn't stop the California Court of Appeal from allowing the suit, which was dismissed only after the California Supreme Court narrowed the reach of harassment law in a way contrary to Dilan's conception of sexual harassment.
6.12.2009 1:07pm
Dilan Esper (mail) (www):
For example, can Skokie, Il simply outlaw creating a hostile work environment based on race, and then prevent folks from parading by store windows expressing hostile messages?

You are ignoring (1) the concept of a "work environment" and (2) the fact that sexual harassment has to be authorized or acquiesced to by a supervisor or representative of the employer. This issue is about whether employers can use expressive activity to make it impossible for their female employees to work, and the HWE doctrine has limits imposed on it that contain it to that situation. Arguing about what happens in store windows misses this.
6.12.2009 1:09pm
ShelbyC:
Steve H:

That was the point of my list of examples above. There have always been wide areas of speech subject to government "interference." Laws that prevent employers from speaking in a certain manner clearly abridge the freedom of speech, but not every abridgement of speech implicates the First Amendment.


Jeez my typing's bad. Sorry. Can you please clarify? Are you arguing that no speech that creates a hostile environment is protected? Are you arguing that courts should create a "hostile work environment" exception to the 1st amendment?
6.12.2009 1:11pm
Dilan Esper (mail) (www):
It's worth noting, in response to Hans, that Lyle is very much an outlier case. I am quite receptive to the argument that the speech at issue in Lyle was protected. (I also don't think it was actually sexual harassment.) But the issue here is that folks like Hans want to use rare, outlier cases like Lyle to create a First Amendment right of employers to drive women out of the workplace by creating hostile environments and engaging in clear sexual harassment that has no political or artistic or social content whatsoever. There's an agenda here, and it goes far beyond the unusual facts of Lyle.

In other words, if the facts of Lyle are problematic, let's go ahead and put an exception into Title VII that protects banter in that context. Or we can even carve out a judicial exception based on important First Amendment interests, or construe Title VII narrowly in those factual contexts.

But that's not what a lot of people want in bringing up the Lyle case. Rather, they just want sex discrimination laws repealed or rendered ineffective.
6.12.2009 1:16pm
ShelbyC:

You are ignoring
(1) the concept of a "work environment" and (2) the fact that sexual harassment has to be authorized or acquiesced to by a supervisor or representative of the employer.


I didn't mean to ignore those, 1. was invoked by the parade passing by stores where people are working, and 2. doens't seem to be required by your "verbal act" arguement. Your arguement isn't limited to employers, correct? The theory would allow towns to outlaw the "act" of creating a hostile work environment and the punish people for protected speech that has the effect of creating a hostile work environment, whether or not they are and employer, correct? I understand that Title VII doesn't do so.
6.12.2009 1:18pm
Dilan Esper (mail) (www):
I didn't mean to ignore those, 1. was invoked by the parade passing by stores where people are working, and 2. doens't seem to be required by your "verbal act" arguement. Your arguement isn't limited to employers, correct? The theory would allow towns to outlaw the "act" of creating a hostile work environment and the punish people for protected speech that has the effect of creating a hostile work environment, whether or not they are and employer, correct? I understand that Title VII doesn't do so.

Title VII only applies to employers and their representatives who either create the hostile environment or acquiesce to the creation of it by employees or business invitees.

So even if a public street is a "work environment" for someone, there's not going to be a conceivable situation where someone's EMPLOYER is going to be responsible for sexual harassment (unless the employer himself put up the sexist signs to harass his workers).

Really, a lot of the parade of horribles that people raise actually consists of cases that aren't actionable under Title VII anyway.
6.12.2009 1:21pm
KexWahapeptZazel (mail) (www):
Работа по совместительству.Компания ищет работников .
Знание и наличие компьютера обязательно. Более подробно на uxxicom. com или http://www.uxxicom.com/

[url=http://www.uxxicom.com/]Вакансии[/url]
[url=http://www.uxxicom.com]Дополнительный доход[/url]
[url=http://www.uxxicom.com]Работа[/url]
[url=http://www.uxxicom.com/]Удалённая работа[/url]
6.12.2009 1:21pm
Steve H (mail):
ShelbyC, I'm not arguing that hostile work environment is an exception to the First Amendment. I'm arguing that for the most part, the First Amendment and Title VII operate in different spheres entirely.

For example, when a defendant gets sued for breaching a contract by anticipatory repudiation, no one says "What about the First Amendment?" Because repudiation is simply a matter of contract law and has been seen that way forever, and the First Amendment simply isn't a consideration. Similarly, in my view, it's not generally a First Amendment issue when someone gets sued for discriminating because of sex by maintaining a hostile work environment.

Of course, I can conceive of "some* situations where the First Amendment might be implicated in a hostile work environment case. If a worker sued because one person advocated for or against a current ballot initiative, or some other matter of public political import (which I see as the core of the First Amendment), then a court might have to take into account the First Amendment issues. But I think that even in the vast majority of such possible cases, the plaintiff would be unable to show discrimination because of sex (hostile work environment) in the first place, so the First Amendment would not come into the discussion.
6.12.2009 1:21pm
Hans Bader (mail) (www):
Unfortunately, Dilan, you are mistating sexual harassment law's elements in your effort to minimize its tension with the First Amendment.

Employers are not just liable for speech or acts "by a supervisor or representative of the employer." They are liable for the impact of speech or acts by non-employees.

Nazis marching through Skokie could very easily contribute to a racially hostile work environment, and thus be individually liable under state racial/sexual harassment laws for "aiding and abetting" a hostile work environment, if speech not directed at the plaintiff could be considered harassment (as Dilan argues should be the case). See Baliko v. Stecker (N.J. App. 1994) (comments on public street by picketers that contributed to hostile work environment in nearby workplace subjected picketers to individual liability for "aiding and abetting" hostile work environment under state sexual harassment law).

Employers are liable for speech or acts of non-employees that they they fail to respond to, (like customers, see Lockard v. Pizza Hut (10th Cir.)), including complete strangers who say or do offensive things on their premises.

Thus, employers could be held liable to failing to block employees' access to speech by demonstrators, even if the speech is political in nature, like a Nazi march through Skokie. Unless, that is, harassment laws are limited on either statutory textual grounds (as I have argued) or on First Amendment grounds (as professor Volokh argues) to weed out most such claims.

Dilan justifies hostile environment regulations by saying that they are limited to speech that would "impair a reasonable woman's ability to do her job." That might be a very sensible limit, but it was rejected as being dispositive by the Supreme Court in Harris v. Forklift Systems, 510 U.S. 17 (1993) (Justice Ginsburg's concurring opinion suggested that test, but the majority said it was only one factor in whether a hostile work environment exists).

Dilan says that creating a "hostile work environment" is a verbal act, akin to extortion. I cannot agree that speech like offensive radio programs or a Nazi march somehow become a mere "verbal act" just because they have the unintended side effect of creating a "hostile work environment" for someone who overhears it.

Justice Chin's concurrence in Lyle v. Warner Bros. said that certain speech, like sexually offensive comments made in the workplace in the process of producing the adult-oriented sitcom "Friends," was protected even if it DID create a "hostile work environment" for a female employee who witnessed it. See Lyle v. Warner Bros., 132 P.3d 211, 300 (Cal. 2006) (Chin, J., concurring) (sexual harassment liability cannot constitutionally be applied to creative speech, such as that involved in books, newspapers, or television, that is “not directed at or about the plaintiff”).

So "hostile work environment" is not a justification for mindlessly suppressing speech or pretending that banning speech that creates a "hostile environment" raises no First Amendment issues. Compare Dambrot v. Central Michigan University, 55 F.3d 1177 (6th Cir. 1995) (invalidating hostile-environment racial harassment policy as overbroad and vague): UWM Post, Inc. v. Board of Regents of Univ. of Wisconsin System, 774 F.Supp. 1163 (E.D. Wis. 1991) ("since Title VII is merely a statute, it cannot supersede the requirements of the First Amendment").

The whole point of the hostile work environment concept is to suppress speech because it is offensive. It is utterly unlike most speech restrictions, which turn on something other than the communicative impact of speech. Thus, it must be subject to First Amendment limits, like strict scrutiny, to keep it in check, even though it serves important goals.

As the Supreme Court has said quite clearly, "listeners' reaction to speech is not a content-neutral basis for regulation." Forsyth County v. Nationalist Movement, 505 U.S. 123, 134 (1992).

"If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable." Texas v. Johnson (Supreme Court, 1989).

Yet, a hostile environment is defined by a listener's reaction to speech. See, e.g. Harris v. Forklift Systems, 510 U.S. 17, 21-22 (1993) (work environment must be subjectively hostile for plaintiff to recover); Mendoza v. Borden, 195 F.3d 1238, 1245-1246 (11th Cir. 1999)(same). As a federal district court in the Sixth Circuit noted, if the plaintiff is not offended, there is no Title VII violation.

Dilan says that Jerry Falwell was trying to get around limits on defamation law by bringing his intentional infliction lawsuit, in the lawsuit over a sexually offensive parody the Supreme Court rejected on First Amendment grounds in Hustler Magazine v. Falwell (1988).

That's true of sexual harassment law as well. It's also an end run around First Amendment limits on defamation and other torts. See Bowman v. Heller (Mass. Superior Court) (female plaintiff recovered for sexual harassment based on sexually offensive parody of her in a union election).

Defamation law doesn't reach even 1 percent as much speech as the hostile work environment concept, which bans more speech than all speech restrictions combined. I used to be the intake attorney for a non-profit. The number of people who called me begging for help after being fired or disciplined for trivially offensive speech under so-called "hostile environment" regulations (many of them in no way bigoted) dwarfed the number of callers who complained of all other speech restrictions (defamation suits, SLAPP suits, etc.) put together by an enormous margin.

Plaintiffs use sexual harassment law to get around First Amendment limits on other torts all the time.

No court would find a picture of your wife in a bikini to be indecent or obscene, given the First Amendment limits on those concepts, but plenty of self-described sexual harassment "experts" will tell you that it should be banned from the workplace as a building block of a "hostile work environment" claim.

Paintings in university galleries and classrooms have been removed or partially shielded from view after sexual harassment complaints. (See, e.g., past issues of People for the American Way's "Artistic Freedom Under Attack").

In defamation law, truth is a defense. But in a case before Judge Sand, a police department employee sued for sexual harassment based on co-workers discussing the TRUE fact that she had once been a prostitute. Truth was not a defense.

In obscenity law, it's a defense that the speech has political or artistic or social value. Not so in sexual harassment law. Thus, in Lyle v. Warner Bros., the TV studio defeated a lawsuit against it by an employee complaining about the creative process for writing an adult-oriented sitcom (Friends) only because the California Supreme Court adopted statutory limits on sexual harassment claims (weeding out most claims involving "undirected" speech not aimed the plaintiff) that are inconsistent with Dilan's broad conception of what a hostile work environment is.

The defendant in Lyle pointed out that the plaintiff was suing over comments that even the FCC would not have considered to be indecent or banned by federal indecency regulations over the air.

But that didn't stop the California Court of Appeal from allowing the suit, which was dismissed only after the California Supreme Court narrowed the reach of harassment law in a way contrary to Dilan's conception of sexual harassment.

That's because sexual harassment law, as construed by many courts, is vastly broader in its reach than indecency regulations and obscenity laws put together.
6.12.2009 1:37pm
Steve H (mail):
Hans, I'm having a bit of trouble following what you are getting at. (Quite frankly, it's hard to follow the long posts, especially when they seem to be repeating verbatim a lot of what you posted before.)

If an employer has a "Drivers Wanted, Inquire Within" sign up on his door, and he also puts a "Whites Only" sign underneath it, are you saying that the "Whites Only" sign is speech that either is or should be protected by the First Amendment? Do you see that as a matter of people using Title VII to get around the First Amendment?
6.12.2009 1:44pm
ShelbyC:
Steve H:

Of course, I can conceive of "some* situations where the First Amendment might be implicated in a hostile work environment case. If a worker sued because one person advocated for or against a current ballot initiative, or some other matter of public political import (which I see as the core of the First Amendment), then a court might have to take into account the First Amendment issues.


Steve, would the "advocat[ing] for or against a current ballot initiave" in your example apply to any protected speech? EV, it the post and in the links gives many examples where constutionally protected speech might create a hostile working environment, as does Dave B. in his book.
6.12.2009 1:47pm
ShelbyC:

are you saying that the "Whites Only" sign is speech that either is or should be protected by the First Amendment?


"Whites Only" is both evidence of illegal discrimination and also falls neatly into the category of "verbal act" that you and Dilan point out. A sign that says, "I would prefer to hire whites only if that had my way but the law requires me not to discriminate and I intend to follow the law" would be tricker.
6.12.2009 1:53pm
Dilan Esper (mail) (www):
Employers are not just liable for speech or acts "by a supervisor or representative of the employer." They are liable for the impact of speech or acts by non-employees.

No, Hans. They can be liable for acquiescing to the actions of business invitees. But that's a far cry from being liable for anything that any member of the general public does with or without their knowledge.

Further, remember that the harassment has to be severe or pervasive and interfere with a reasonable woman's ability to work. That means that isolated signs and comments and the like don't constitute harassment.

And under controlling US Supreme Court authority, judges and juries must take into account whether an employer has policies in place to prevent harassment. In other words, employers who take reasonable proactive steps against harassment have nothing to worry about from isolated incidents or actions that were beyond their control.

Dilan justifies hostile environment regulations by saying that they are limited to speech that would "impair a reasonable woman's ability to do her job." That might be a very sensible limit, but it was rejected as being dispositive by the Supreme Court in Harris v. Forklift Systems, 510 U.S. 17 (1993) (Justice Ginsburg's concurring opinion suggested that test, but the majority said it was only one factor in whether a hostile work environment exists).

That's a misreading of Harris. Harris simply holds that harassment is actionable even before it causes a tangible injury, i.e., causing an employee to have a nervous breakdown. It in no way rejects the standard-- applied in EVERY Circuit Court of Appeals-- that the harassment must be sufficient severe or pervasive so as to impair a reasonable woman's (or person's) ability to do her job.


The whole point of the hostile work environment concept is to suppress speech because it is offensive.

No, it isn't. The whole point of CRITICS of sexual harassment law is to create a First Amendment right to discriminate against women in the workplace by pretending that HWE law is all about suppressing speech because of its offensive conduct.

HWE law is an aspect of sex discrimination law. It prohibits employers from creating a workplace environment that is discriminatory against women. One way to do this-- but not the only way-- is through expressive conduct. But the point of the statutory scheme has always been to prevent a wide variety of forms of gender discrimination in the workplace, not to target speech specifically.

This doesn't mean that outlying cases don't have some effect on free speech. They do and there's no reason that shouldn't be addressed. But the purpose of the Hans Baders of the world is to use that as an excuse to gut the heart of discrimination law.
6.12.2009 1:54pm
ShelbyC:

Further, remember that the harassment has to be severe or pervasive and interfere with a reasonable woman's ability to work. That means that isolated signs and comments and the like don't constitute harassment.

And under controlling US Supreme Court authority, judges and juries must take into account whether an employer has policies in place to prevent harassment. In other words, employers who take reasonable proactive steps against harassment have nothing to worry about from isolated incidents or actions that were beyond their control.



How can an employer have a policy that prevents "pervasive" harassment without preventing any conduct that would be pervasive if repeated? Remember, it doesn't have to be pervasive by the same person. (EV made this point somewhere).
6.12.2009 2:00pm
Danny (mail):


I missed the part where the Constitution was originally understood, or plausibly interpreted, to protect an employer's right to speak in a crude manner in order to annoy, embarrass, and drive their female employees out of the workplace.

In other words, my short answer is "no".


I agree. Everyone so exaggeratedly concerned about this bully employer's right to broadcast sex talk at work - apparently if we can't listen to porn at work then the next step is becoming the Soviet Union. I find that an odd reaction. What about the employee's right to a shot at employment in a bad economy?

Explicit sex talk, programs, questions, etc. make most people nervous, especially coming from a boss who you have to be deferent to. I wonder how you guys would react if the employer or senior colleagues were broadcasting sex talk that you found much more distasteful - not about tits but a crude flamboyant gay boss exposing employees to his constant extreme sex talk and/or media and his calenders. Not so much fun then is it? I briefly had such a boss as a poor undergrad and I just DREADED going to work, it was really awful. Or imagine some guy working in a factory with a bunch of Somali immigrants who want to listen to their Islamist anti-American show. Still interested in advocating for these people's first amendment "right" to transform the work environment into a very nasty place? Do you really think free speech is crushed if these people have to wait until after work to hear such brilliant intellectual viewpoints?

Please try to put yourself in the victim's shoes for once. Try to find your inner wise Latina.
6.12.2009 2:00pm
Steve H (mail):

Please try to put yourself in the victim's shoes for once. Try to find your inner wise Latina.


Well played.
6.12.2009 2:07pm
ShelbyC:
Danny:

I wonder how you guys would react if the employer or senior colleagues were broadcasting sex talk that you found much more distasteful - not about tits but a crude flamboyant gay boss exposing employees to his constant extreme sex talk and/or media and his calenders. Not so much fun then is it?


You're right, that would bother me alot more than a macho boss talking about tits and sex with women. So I get to go to court and have a judge enforce my personal prejiduces, eh? And a lot of folks would get bothered just by a mildly effeminate boss talking about issues with his bf.
6.12.2009 2:14pm
Dilan Esper (mail) (www):
How can an employer have a policy that prevents "pervasive" harassment without preventing any conduct that would be pervasive if repeated? Remember, it doesn't have to be pervasive by the same person. (EV made this point somewhere).

The way most people who as part of their jobs are in charge of others handle this is by handling isolated incidents with no punishment, a warning, or a mild reprimand, and holding severe or repeated incidents with stronger action.

The reality is that a lot of this comes down to common sense.
6.12.2009 2:16pm
Hans Bader (mail) (www):
If you allow people to sue for "harassment" based on comments they overhear (disregarding the often-ignored statutory requirement that the comments be aimed at them based on their sex or other protected characteristic), there are really no First Amendment protections left.

Everything is offensive to someone based on their protected characteristic, and the antidiscrimination laws (and hostile-work environment regulations) cover a vast array of characteristics, like sex, race, religion, sexual orientation, or (in some states or municipalities) criminal conviction, political affiliation, etc.

Frequent discussion of political issues is by definition "pervasive" enough to create a "hostile work environment" for someone based on some characteristic. (After all, you can group together comments by different speakers that are individually not "severe" and treat them as actionably "pervasive," since "harassment" need only be "severe" OR "pervasive" to be actionable).

The only meaningful limit to create breathing space for First Amendment freedoms to survive is to enforce with rigor the statutory requirement that the conduct complained of have occurred based on the plaintiffs' sex, not merely be offensive to them.

The fact that the "hostile work environment" concept is one aspect of discrimination laws does not immunize its speech restrictions from scrutiny anymore than the fact that restrictions on political boycotting were OK because they were just one application of a state's interference with contractual relations tort in NAACP v. Claiborne Hardware Co. (1982) (striking down lawsuit tort award), or the fact that restrictions on sexually offensive parodies were just one aspect of Virginia's tort of intentional infliction of emotional distress in Hustler Magazine v. Fallwell (1988).

Dilan claims that "the purpose of the Hans Baders of the world is to use that as an excuse to gut the heart of discrimination law." Of course, that is not true.

If he bothered to read my article, he would have seen that my whole point is to make the hostile environment concept consistent with "discrimination law" by limiting it to conduct that is really discriminatory, and occurs based on the plaintiff's sex, rather than merely being overhead by the plaintiff.

That would create breathing space for free speech in the workplace, and would not bar the MAJORITY of sexual harassment claims that currently succeed in court (even those circuits that currently fail to apply a "based on sex" or "intentional discrimination" limit on harassment claims).

There are a lot of harassment claims that literally do involve intentional discrimination based on sex -- like the supervisor who constantly makes crude comments about the bodies of his female employees. I have no objection to these claims being actionable if they do in fact create a "hostile work environment."

My statutory construction would, however, bar a significant MINORITY of claims currently being filed, which deserve to be dismissed as a menace to free speech. That construction is buttressed by the canon of constitutional doubt, which counsels that laws should not be interpreted broadly when doing so would raise serious constitutional issues. (See NLRB v. Catholic Bishop of Chicago, 440 U.S. 490, 499-501 (1979) (limiting federal labor law's reach to avoid possible First Amendment problems); Edward J. DeBartolo v. Fla. Gulf Coast Building &Constr. Trades Council, 485 U.S. 568, 575 (1988) (limiting law’s reach to avoid potential free speech problem)).
6.12.2009 2:18pm
Dilan Esper (mail) (www):
That would create breathing space for free speech in the workplace, and would not bar the MAJORITY of sexual harassment claims that currently succeed in court (even those circuits that currently fail to apply a "based on sex" or "intentional discrimination" limit on harassment claims).

In other words, I am right, this is not a big problem, the mine run of harassment cases aren't threatening free speech, Lyle was an outlier, and-- oh, why are you so outraged about all of this again?
6.12.2009 2:21pm
ShelbyC:

In other words, I am right, this is not a big problem, the mine run of harassment cases aren't threatening free speech


I'm not sure the OP or anyone else opined about what the majority, or mine run, of sexual harassment cases are about; I don't think anyone said anything beyond pointing out that hostile environment law can sometimes supress constitutionally protected speech. And who's outraged? This is a calm, cool discussion about permissable regulation, no?
6.12.2009 2:32pm
ShelbyC:

...this is not a big problem...


Of course not. It's never a big problem until it suppresses my speech :-).
6.12.2009 2:34pm
Dilan Esper (mail) (www):
Shelby-- I was speaking of Hans, who certainly does seem to argue as if the world is going to end if some sexist speech in the workplace gets suppressed.
6.12.2009 2:40pm
Hans Bader (mail) (www):
It is a big problem. If even an appreciable minority of harassment cases that succeed are based on protected speech, the employer has a big incentive to restrict such speech, to avoid even the risk of being sued. The Supreme Court has long recognized that the "fear of damage awards" in a lawsuit can chill speech even more than "the fear of prosecution." See New York Times v. Sullivan, 376 U.S. 264, 277 (1964).

Would you say the same thing -- that a speech restriction is not a big deal if much of the time, it is applied to unprotected speech -- if a significant minority of defamation or obscenity claims were based on protected speech? If they were, museums and bookstores wouldn't carry a lot of what they currently display or sell. Even if the "mine run" of such cases was unobjectionable, the cases that weren't would have a huge chilling effect on speech.

And harassment law is a lot more costly and vaguer than obscenity law is. There's no damage award for obscenity, and most prosecutors don't waste their time prosecuting it. (When the U.S. Attorney in the Southern District of Florida said he was making obscenity a priority, there was a virtual staff rebellion).

By contrast, in harassment cases, there's not only damages if the employer loses, but countless thousands of dollars in attorneys fees payable to the plaintiff. One-way fee shifting under laws like Section 1988 and FEHA massively adds to employers' costs (plaintiffs have gotten hundreds of thousands of dollars in attorneys fees despite suffering so little harm that the jury awarded them no emotional distress damages at all). For the employer, it's heads the other side wins, tails it loses.

And the employer has little guidance in advance of what a judge or jury will consider to be a "hostile environment," since judges and juries are notoriously inconsistent on that subject, encouraging employers to ban even speech that most judges and juries would not deem hostile.

What is a "hostile environment" is a very vague notion, as a court noted in Pasqua v. Metropolitan Life Ins. Co, 101 F.3d 514 (7th Cir. 1996). Indeed, a Maryland civil rights agency warned that "the legal boundaries" of what is actionable "are so poorly marked," that "the best course of action is to avoid" any potentially offensive remarks.

Reflecting the ambiguity, federal appeals courts differ greatly among themselves as to what conduct they believe is severe or pervasive enough to create a hostile environment.

Within the same district, different juries often find starkly similar conduct to either not constitute harassment at all, or to be so patently and egregiously harassing as to warrant punitive damages.

When someone other than the courts is enforcing a ban on harassment, the courts immediately recognize the disturbing vagueness of the "hostile environment" concept. For example, the Ninth Circuit overturned a public college professor's discipline for unintentionally creating a hostile environment on vagueness grounds in Cohen v. San Bernardino Valley College, 92 F.3d 968 (9th Cir. 1996). And the Oregon Supreme Court, on state constitutional grounds, overturned a civil-rights agency's fine on an evangelical Christian employer for unknowingly creating a hostile work environment through religious proselytizing in Meltebeke v. Bureau of Labor and Industries, 903 P.2d 351, 363 (Or. 1995), even though it found that the conduct indeed violated the agency's hostile-environment harassment rule, because ignoring the employer's intentions would have a chilling effect on freedom of religion. And in Dambrot v. Central Michigan University, 55 F.3d 1177 (6th Cir. 1995), the court struck down a college's hostile environment harassment code as unconstitutionally vague, since whether the code was violated turned partly on the subjective reactions of listeners.

But the courts are blind to the vagueness of the "hostile work environment" concept when they themselves apply harassment law through damages liability -- even though the First Amendment vagueness doctrine applies to civil as well as criminal liability, see Bullfrog Films v. Wick, 847 F.2d 502 (9th Cir. 1998).
6.12.2009 2:40pm
Dilan Esper (mail) (www):
It is a big problem. If even an appreciable minority of harassment cases that succeed are based on protected speech, the employer has a big incentive to restrict such speech, to avoid even the risk of being sued.

This is a claim that requires evidence. I.e., evidence that there are significant numbers of sexual harassment cases where the plaintiffs win despite the fact that the conduct in question consisted solely of protected speech (and note, if there is both protected speech and unrprotected conduct, there's no basis for saying that the protected speech can't even EVIDENCE sexual harassment), and evidence that as a result of this, employers are enacting policies that are overbroad to the point that they chill or extinguish high value speech (i.e., not just crass sexual comments and expression).

In fact, there's really no evidence that either of these things are occurring. Rather, if you read reported sexual harassment cases in which the plantiff prevailed, you see fact patterns of absolutely outrageous conduct.

So there's no reason to impose the types of limitations that you want on this area of the law. If you want to imply a free speech exception to Title VII for situations like Lyle or for, e.g., legitimate discussions of sex in the workplace, fine, but this is basically a non-problem and it would be quite a bad thing to limit sexual discrimination law and risk bringing us back to the bad old days when private employers had the "freedom" to discriminate against women in the workplace.
6.12.2009 3:08pm
David M. Nieporent (www):
It's worth noting, in response to Hans, that Lyle is very much an outlier case. I am quite receptive to the argument that the speech at issue in Lyle was protected. (I also don't think it was actually sexual harassment.) But the issue here is that folks like Hans want to use rare, outlier cases like Lyle to create a First Amendment right of employers to drive women out of the workplace by creating hostile environments and engaging in clear sexual harassment that has no political or artistic or social content whatsoever. There's an agenda here, and it goes far beyond the unusual facts of Lyle.
Yes. Free speech.

The point of the one-to-one exception by EV is to leave speech intended to "drive women out of the workplace" unprotected. But most of the speech we're talking about merely is stuff that offends (some) women, but is not actually "harassment" at all. Look at the facts of the case as outlined by EV above in the original post, Dilan. They weren't harassment; they were just things that offended this woman because she was a prude.
6.12.2009 3:17pm
ShelbyC:

This is a claim that requires evidence.


Why? are you arguing for a "not a big problem" exception to the first amendment? The fact that Nazi's can't march through Skokie isn't a big problem either, as far as I'm concerned.
6.12.2009 3:19pm
David M. Nieporent (www):
That would create breathing space for free speech in the workplace, and would not bar the MAJORITY of sexual harassment claims that currently succeed in court (even those circuits that currently fail to apply a "based on sex" or "intentional discrimination" limit on harassment claims).

In other words, I am right, this is not a big problem, the mine run of harassment cases aren't threatening free speech, Lyle was an outlier, and-- oh, why are you so outraged about all of this again?
Those are indeed "other words," because they're not what he said. The fact that most suits that succeed are based on extreme behavior does not not mean that the suits that fail are. Being sued, whether or not one loses, is a major harm. Sexual harassment law encourages suits over protected speech.
6.12.2009 3:21pm
einhverfr (mail) (www):
Hmmm....

Am I missing something or does the ruling suggest that had the worker been informed of the environment prior to accepting employment, then this wouldn't be sexual harassment? I.e. if one says "I am offering you a job. But be aware we listen to sexually explicit radio programs here and this environment is well known for off-color jokes" then it couldn't be sufficiently severe or pervasive to alter the terms and conditions of employment, right?
6.12.2009 3:21pm
einhverfr (mail) (www):
(if that understanding is correct, I can't see a real 1A issue there since it would really amount to a truth-in-advertising issue.)
6.12.2009 3:23pm
Dilan Esper (mail) (www):

The point of the one-to-one exception by EV is to leave speech intended to "drive women out of the workplace" unprotected.


See my comment above on "one to one"-- the problem is that there are scenarios where the harassment may not be one-to-one where it nonetheless should not be considered protected speech.

It's a much better approach to rely on the speech protections that are already included in Title VII (severe or pervasive, reasonable woman, etc.), and if there is some need to create a limited free speech defense, to create it rather than throwing the baby out with the bathwater and undermining gender discrimination law.


Why? are you arguing for a "not a big problem" exception to the first amendment? The fact that Nazi's can't march through Skokie isn't a big problem either, as far as I'm concerned.


Well, a first amendment that didn't allow the Nazis to march in Skokie is one that would permit prior restraints of political speech. A First Amendment that allows damages suits for sexual harassment is one that would permit relatively mild subsequent punishments of abhorrent behavior. There's a big difference.
6.12.2009 3:27pm
Steve H (mail):

But most of the speech we're talking about merely is stuff that offends (some) women, but is not actually "harassment" at all.


Perhaps, but Title VII does not ban "harassment." It bans discrimination, including subjecting women to unequal working conditions.

It is demeaning for women to be treated as if their primary function is to provide tits and blowjobs. So radio broadcasts that promote the idea that women's primary function is for tits and blowjobs are likely to affect women in the workplace far differently they the broadcasts will affect men in the workplace -- women are required, as a condition of employment, to listen to broadcasts that demean them. Men are not.

So an employer who allows such broadcasts is discriminating against the women in the workplace.

I don't know if EV is around at this point, but can anyone explain why workplace speech *should* be subject to more First Amendment scrutiny that speech between contracting or potentially contracting parties?
6.12.2009 3:31pm
ShelbyC:

but can anyone explain why workplace speech *should* be subject to more First Amendment scrutiny that speech between contracting or potentially contracting parties?



It shouldn't. Could you clarify your premise please?
6.12.2009 4:13pm
ShelbyC:
I mean, you can outlaw "causing a traffic disturbance", but if someone standing on the sidewalk holding a sign that says, "vote for prop A", and people are so enraged that he would advocate for prop A that they stop their cars to yell at him, the 1st Amendment prevents you from arresting him for causing a traffic disturbance.
6.12.2009 4:18pm
Steve H (mail):

Could you clarify your premise please?


Sorry if I wasn't clear. I was talking about the same stuff I was discussing before. David Nieporent says that sexual harassment law encourages suits over "protected speech." But as I have mentioned above, there are all kinds of areas where speech is not protected at all, such as when dealing with contract formation, repudiation, waiver, and estoppel -- in all of these instances, the law may impose civil liability for verbal utterances without even considering the First Amendment.

Why should speech in the workplace be subject to the First Amendment any more than speech at the bargaining table?

Put another way, doesn't imposing legal obligations on someone who says "I accept your offer" encourage suits over protected speech?
6.12.2009 4:19pm
Steve H (mail):

I mean, you can outlaw "causing a traffic disturbance", but if someone standing on the sidewalk holding a sign that says, "vote for prop A", and people are so enraged that he would advocate for prop A that they stop their cars to yell at him, the 1st Amendment prevents you from arresting him for causing a traffic disturbance.


I really like this example, because I think it helps illustrate what (I believe) Dilan has been saying.

In your example, I don't think anyone would take the possibility of such a situation as a reason eliminate laws against creating a traffic disturbance. I don't think people would claim that anti-traffic disturbance laws "subject protected speech to prosecution." Rather, the law would remain in place, but courts would recognize exceptions when core First Amendment activity is at stake.

Similarly, I don't think the mere theoretical possibility that a discrimination claim could somehow someday be based on core First Amendment speech is a ground for questioning the validity of anti-discrimination laws. Instead, as Dilan has suggested, the proper remedy is to keep the laws in place, but if one of those unusual situations presents itself, allow an exception.
6.12.2009 4:29pm
ShelbyC:

Put another way, doesn't imposing legal obligations on someone who says "I accept your offer" encourage suits over protected speech?


Thanks for clarifying. Do you agree that "I accept your offer" is different from "vote for prop A" in my example above? Isn't this the basic difference between "verbal acts" that you and Dylan were talking about, and govt supression of specific viewpoints?
6.12.2009 4:32pm
ShelbyC:

Similarly, I don't think the mere theoretical possibility that a discrimination claim could somehow someday be based on core First Amendment speech is a ground for questioning the validity of anti-discrimination laws. Instead, as Dilan has suggested, the proper remedy is to keep the laws in place, but if one of those unusual situations presents itself, allow an exception.



Gotcha. I didn't understand anyone to be arguing that sexual harassment laws are facially invalid under the 1A, just that they should be subject to "as applied" challenges.
6.12.2009 4:41pm
FWB (mail):
How I long for the 50s and 60s when you could joke, laugh, talk dirty, and learn about sex on the bathroom walls!!

But that was before PC. Too bad freedom of speech has been destroyed.

You do not have a right NOT to be offended!

Tir gan teanga, tir gan anam!
6.12.2009 4:43pm
Steve H (mail):
I don't know if anyone is arguing that harassment laws are per se invalid, but I understand David Nieporent to be saying that they inherently raise 1A concerns. (If I'm misunderstanding his point, I apologize.)
6.12.2009 4:45pm
Dilan Esper (mail) (www):
I didn't understand anyone to be arguing that sexual harassment laws are facially invalid under the 1A, just that they should be subject to "as applied" challenges.

Of course they should be. And if the protections inherent in Title VII (severe or pervasive, reasonable woman) are not sufficient to ensure that legitimate protected speech is protected, there's nothing wrong with sustaining such a challenge in a particular instance.

What I don't buy is the argument that sexual harassment law has so far shown itself in any significant way to be insufficiently protective of free speech interests-- the vast majority of successful HWE cases involve atrocious fact patterns of gender discrimination in the workplace. And that's precisely because HWE law already has protections that ensure against it being applied against (1) isolated incidents, (2) legitimate political, social, or artistic expression expressed at a legitimate time in a legitimate place and in a legitimate manner, and (3) expression outside the control of the employer. Are these protections fullproof? No, but that's why we have appellate court review. Indeed, the Lyle case shows the system working.
6.12.2009 4:54pm
Hans Bader (mail) (www):
What are you talking about?

There is no exception for "legitimate political, social, or artistic expression" (even in a sedate "manner") in hostile work environment harassment law.

That's why Jessica Karner, and several other legal scholars have argued for creating such an exception -- precisely because it doesn't exist in the concept of a "hostile environment." See, e.g., Jessica M. Karner, Comment, Political Speech, Sexual Harassment, and a Captive
Workforce, 83 CAL. L. REV. 637, 688–91 (1995); Cynthia L. Estlund, Freedom of Expression in the Workplace and the Problem of Discriminatory Harassment, 75 TEX. L. REV. 687, 705–07 (1997); Richard H. Fallon, Sexual Harassment, Content Neutrality, and the First Amendment Dog that Didn’t Bark, 1994 SUP. CT. REV. 1, 12–20;Wayne Lindsey Robbins, Jr., When Two Liberal Values Collide in an Era of “Political Correctness”: First Amendment Protection
as a Check on Speech-Based Title VII Hostile Environment Claims, 47 BAYLOR L. REV. 789, 801–08 (1995).

I have a simpler proposal: focus on the speaker's motivation, by requiring a discriminatory motive for harassment claims to succeed. After all, sexual harassment law is (according to most courts) a form of intentional discrimination or disparate TREATMENT (not disparate IMPACT). So purely as a statutory matter, discriminatory intent (that is, differential TREATMENT) should be required.

As a side benefit, requiring a discriminatory motive protects free speech in most (but not all) cases. If someone is discussing politics or serious themes, they're probably not motivated by a desire to treat a particular co-worker differently based on their sex (as opposed to discuss their views), whether or not they have generalized biases.

In practice, the discriminatory intent requirement I advocate does just that: protects most political, social, and artistic expression (while leaving most cases of low-value speech, like people pestering a female co-worker for sex, unprotected).

My test also satisfies the legal principle that federal employment laws should not be interpreted broadly when doing so would raise serious constitutional issues. (See NLRB v. Catholic Bishop of Chicago, 440 U.S. 490, 499-501 (1979); Edward J. DeBartolo v. Fla. Gulf Coast Building &Constr. Trades Council, 485 U.S. 568, 575 (1988) (limiting law’s reach to avoid potential free speech problem)).
6.12.2009 5:12pm
ShelbyC:

(2) legitimate political, social, or artistic expression expressed at a legitimate time in a legitimate place and in a legitimate manner,


It sounds like you view this as a narrower category than, "constutionally protected expression"
6.12.2009 5:17pm
Steve H (mail):

I have a simpler proposal: focus on the speaker's motivation, by requiring a discriminatory motive for harassment claims to succeed. After all, sexual harassment law is (according to most courts) a form of intentional discrimination or disparate TREATMENT (not disparate IMPACT). So purely as a statutory matter, discriminatory intent (that is, differential TREATMENT) should be required.


To me, this makes little sense. First, presumably the problem Congress sought to address was unequal working conditions faced by women or minorities. But as far as the employee is concerned, there is no difference between intentional inequality and unintentional-but-not-corrected inequality.

Second, proving intent is murky and difficult. In some situations proving intent may be necessary, but based on point one above, it's not necessary in this one.

Third, any "benefit" resulting from First Amendment protection is essentially illusory, since as Dilan has explained, it is very rare for an antidiscrimination claim to actually impinge on the First Amendment. To the extent anti-discrimination laws raise any legitimate First Amendment concerns, those concerns can be addressed without subjecting women to unintentional-but-still-hostile-and-discriminatory work environments.
6.12.2009 5:29pm
Dilan Esper (mail) (www):
There is no exception for "legitimate political, social, or artistic expression" (even in a sedate "manner") in hostile work environment harassment law.

There doesn't need to be. Such expression is not likely to be severe or pervasive discriminatory conduct that renders a reasonable woman unable to perform her job effectively.

That's the point you are missing. Sexual harassment law basically prohibits atrocious conduct. And yet you guys are arguing about the stuff on the margins that isn't actionable (and which could be taken care of through narrow fixes if it were held to be).
6.12.2009 5:41pm
Dilan Esper (mail) (www):
I have a simpler proposal: focus on the speaker's motivation, by requiring a discriminatory motive for harassment claims to succeed.

That's an awful idea. There's no reason to make it harder to prove sexual harassment claims and to make it easier for people to make women unwelcome in the workplace. You are solving a non-problem by screwing over a group of deserving plaintiffs who were subjected to atrocious conduct but who may not be able to prove what was going through their employers' minds.
6.12.2009 5:43pm
Dilan Esper (mail) (www):
It sounds like you view this as a narrower category than, "constutionally protected expression"

That's begging the question. The expression at issue in Lyle was quite arguably protected by the First Amendment (I certainly assume it was). Repeatedly saying "nice tits" to your secretary isn't protected speech.
6.12.2009 5:45pm
ShelbyC:

Repeatedly saying "nice tits" to your secretary isn't protected speech.


Why not? Fighting words? Or do you mean under some workplace exception?
6.12.2009 5:52pm
Hans Bader (mail) (www):
There is a real First Amendment problem that results from judges ignoring the Title VII statute's requirement of intentional discrimination for damages in harassment cases, (See 42 USC 1981a), and treating speech not aimed at people based on their gender as "harassment."

The fact that something is "political" can make it more, not less, offensive, and thus more likely to contribute to a hostile environment.

The prominent African-American professor Henry Louis Gates has pointed out that the "politicalness" of speech can make it MORE offensive:

"In the course of a discussion of the campus hate speech controversy, literary critic Henry Louis Gates (speaking from an African American position) provided the following hypothetical examples of potentially "harmful" speech directed at a minority student:

(A) LeVon, if you find yourself struggling in your classes here, you should realize it isn't your fault. It's simply that you're the beneficiary of a disruptive policy of affirmative action that places underqualified, underprepared and often undertalented black students in demanding educational environments like this one. The policy's egalitarian aims may be well-intentioned, but given the fact that aptitude tests place African Americans almost a full standard deviation below the mean, even controlling for socioeconomic disparities, they are also profoundly misguided. The truth is, you probably don't belong here, and your college experience will be a long downhill slide. (B) Out of my face, jungle bunny.[1]

Gates' point was that any reader can tell that the first statement would be much more alienating or "wounding" to a minority student."

I can attest to this from personal experience.

When a feminist theology professor at Harvard, where I was studying, said that the role of men in theology should be to "shut up for a milennium," it was religious/political speech, but it was far more offensive to me than it would have been to have someone say something about my rear end.
6.12.2009 5:53pm
Dilan Esper (mail) (www):
When a feminist theology professor at Harvard, where I was studying, said that the role of men in theology should be to "shut up for a milennium," it was religious/political speech, but it was far more offensive to me than it would have been to have someone say something about my rear end.

Well, all I can say about this is that if you don't buy into the premise of sexual harassment law, you don't buy into the premise. But the premise is that political discussions about sexism are protected, and comments about women's rear ends (if repeated and pervasive) are not.

Why not? Fighting words? Or do you mean under some workplace exception?

Well, all I can say about this is.... you get the picture.
6.12.2009 6:05pm
TruePath (mail) (www):
Alright, some people here seem unconvinced that these kinds of harrasment torts could violate the first ammendment. Let me offer you a suggestive argument as to why they might.

Suppose that (as is likely) that many women who have had abortions find the suggestion that abortion is murder hurtful and demeaning. Would you think it consistent with the first amendment for the government to create a cause of action against employers who allow that view to be expressed at their workplace? Even if there was no corresponding provision about speech that labeled anti-abortion advocates as sexist facists? I mean is there any doubt that in this situation the government (through the enforcement of the civil verdicts) would be penalizing business owners based on the content of their speech?

I mean in the hypothetical a pro-abortion business owner could plaster his workplace with statements supporting his view while the anti-abortion business owner would be legally denied that right.

In other words my problem with the above application of harassment laws is that they are non content neutral regulations of private speech. Playing radio stations at work expressing certain views but not others gets you in trouble.

To be clear I think there is room for a narrow kind of harassment law that bars the deliberate use of speech to harass the victim rather than to express a point of view, e.g., Turning on the sexually suggestive show only when this other employee was in the room. Yes, free speech does mean that some people may get offended but that's the price one pays.
6.12.2009 6:15pm
ShelbyC:

Well, all I can say about this is.... you get the picture.


Well, I could imagine somone saying the same thing about blasphemy a couple hundred years ago. I'm not saying it's valuable speech, but if you're going to prohibit certain speech, you should be able to articulate a rule for doing so. Saying, "Well, it's just obviously not protected" puts you on top of a big slippery slope.
6.12.2009 6:20pm
Steve H (mail):

Alright, some people here seem unconvinced that these kinds of harrasment torts could violate the first ammendment.


I don't think so. I think some people here are unconvinced that these kinds of harassment torts are particularly *likely* to violate the First Amendment. I also think some people here are unconvinced that the remote chance of a First Amendment infringement justifies curtailing the antidiscrimination laws.

And I find your fanciful "this could happen" hypothetical unpersuasive for that very reason. Sure, the government *could* create a cause of action against employers who allow anti-choice speech in the workplace, but it won't.

Finally (and sorry for beating the analogy to death), a restriction on sexually based radio broadcasts in the workplace is no more a "non-content neutral regulation of private speech" than imposing liability on someone who responds to a contract offer by saying "I accept" but not on someone who says "I don't."
6.12.2009 6:25pm
Hans Bader (mail) (www):
Harassment regulations are certainly content-based (more so if we discard the statutory discriminatory-intent requirement, as many judges do, and focus predominantly on listeners' reactions).

Under Steve's logic, which denies the content-based nature of a speech restriction that is based on listeners' reactions to speech, a great many Supreme Court decisions that struck down speech restrictions must have been wrongly decided.

But as the Supreme Court has said quite clearly, "listeners' reaction to speech is not a content-neutral basis for regulation." Forsyth County v. Nationalist Movement, 505 U.S. 123, 134 (1992).

"If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable." Texas v. Johnson (Supreme Court, 1989).

Yet, a hostile environment is defined by a listener's reaction to speech. See, e.g. Harris v. Forklift Systems, 510 U.S. 17, 21-22 (1993) (work environment must be subjectively hostile for plaintiff to recover); Mendoza v. Borden, 195 F.3d 1238, 1245-1246 (11th Cir. 1999)(same). As courts have expressly noted, if the plaintiff is not offended, there is no Title VII violation.

The Supreme Court has often struck down speech restrictions even when they were supposedly part of a law aimed not at speech, but at conduct, when the application of the law was triggered by listeners' reactions to speech. See, e.g., Hustler Magazine v. Falwell (1988); NAACP v. Claiborne Hardware Co. (1982).

Soeech does not become akin to offer and acceptance in contract law, much less become content-neutral, merely because it is swept up within a larger statute that bans conduct as well as speech.
6.12.2009 6:46pm
Hans Bader (mail) (www):
Failing to require discriminatory motivation for harassment liability (and permitting liability just because the work environment is "hostile or offensive") converts harassment law into a powerful tool for suppressing speech, including the political speech examples I mentioned in my comment above at 5:53 p.m.

As the Individual Rights Foundation noted,

"Overly broad definitions of harassment have had a negative effect on artistic freedom. Fearing harassment liability, California college instructors have excised elements of their curriculum. Melissa Balmain, Readers: This Column Might Offend You, Orange County Register, Dec. 7, 1994, Metro 1. The drawing of nude models has diminished; photos of Michelangelo's "David" are shown from the waist up; and a professor at California State University at Northridge was fired for asking students to make nude sketches. Id. Artistic expression in California schools has attracted lawsuits. A teenager sued a school district near Sacramento after her English teacher showed a movie based on Edgar Alan Poe's classic short story "The Pit and the Pendulum," which she perceived as sexually humiliating. Nevermore for Poe Film, Lawsuit Says, S.F. Examiner, Aug. 30, 1994, at A2.

"Many art censorship cases now result from sexual harassment charges. E.g., 2 People for the American Way, Artistic Freedom Under Attack 7, 50, 92, 111, 121, 156, 197, 208, 214 (1994). (Most of these cases involved artwork by female artists. See id. at 50, 92, 121, 156, 208, 214). For example, an exhibition on loan from the Museum of Modern Art, Nudes, was removed from Colgate University's Picker Art Gallery after administrators claimed it contributed to a hostile work environment for employees. Id. at 156. Classical nude paintings are among the most common targets of this form of censorship. E.g., Nat Hentoff, Sexually Harassed by Francisco Goya, Wash. Post, Dec. 27, 1991, at A21 (painting removed from classroom where it had hung for years after professor said it harassed her).

"What all of these baseless sexual harassment charges had in common was a failure to comply with the most essential of the elements of a sexual harassment claim: that the conduct complained of occur because of the complainant's sex. Sadly, those charges now have new life under the decision of the Court of Appeal, which dispenses with the requirement that a plaintiff show harassment occurred because of her sex."

--Amicus letter from Individual Rights Foundation to Chief Justice Ronald M. George and the Associate Justices of the
California Supreme Court, June 25, 2004, at pp. 3-4, in Lyle v. Warners Bros. Television Productions, No. S125,171.
6.12.2009 6:51pm
ShelbyC:

Sure, the government *could* create a cause of action against employers who allow anti-choice speech in the workplace, but it won't.


But aren't employers currently required to suppress pro-life speech, if it creates a hostile working environment?
6.12.2009 7:30pm
Dilan Esper (mail) (www):
The Supreme Court has often struck down speech restrictions even when they were supposedly part of a law aimed not at speech, but at conduct, when the application of the law was triggered by listeners' reactions to speech.

Hans, you aren't dealing with something fundamental, which is that the same Supreme Court has ruled on hostile environment sexual harassment cases several times and has never even intimated that they might violate the First Amendment.

Obviously, even the conservatives on the Supreme Court are less convinced of the supposedly grave threat these laws pose to free speech than you are.

But aren't employers currently required to suppress pro-life speech, if it creates a hostile working environment?

Under current law, merely expressing opposition to abortion could not possibly by itself constitute sexual harassment. Again, severe, pervasive, likely to impair a reasonable woman's ability to work. Saying one opposes abortion-- or even that abortion is murder-- isn't even close to that.
6.12.2009 8:17pm
ShelbyC:

Again, severe, pervasive, likely to impair a reasonable woman's ability to work. Saying one opposes abortion-- or even that abortion is murder-- isn't even close to that.



So if your client asked you how often and to what extent he could express his pro-life views in the workplace...?
6.12.2009 8:27pm
Dilan Esper (mail) (www):
So if your client asked you how often and to what extent he could express his pro-life views in the workplace...?

As a matter of prudence-- as often as he likes consistent with his employer's policies and as long as he isn't targeting it specifically at, say, a particular female worker who he knows had an abortion.

As a matter of law-- his greater worry is that his employer might firing him; the chances of a successful sexual harrassment lawsuit are close to zero.

As a matter of courtesy-- it's best not to talk about controversial issues like abortion at the office.
6.12.2009 8:47pm
Danny (mail):

Why does sexual harrassment have to be gender-based? As I understand it sexual harrassment is being repeatedly exposed to unwanted sex talk, images, proposals, etc., from colleagues, regardless of the genders involved. Or if I am harrassed by a gay man that doesn't count as sexual harrassment?

Also why does creating a hostile environment have to single out a group or even be based on speech? Isn't it legally a hostile environment if the employer or colleagues make an employee or set of employees so uncomfortable and so nervous that they are unable to work? If my boss suddenly declared every Wednesday "Bring Your Tarantula to Work Day", I would have less than a week to find a new job. Even if he claims it is "artistic", shouldn't I have some legal recourse?
6.12.2009 8:52pm
Dilan Esper (mail) (www):
Or if I am harrassed by a gay man that doesn't count as sexual harrassment?

As long as you are targeted because of your gender, same-sex harassment can be actionable under the Oncale case.
6.12.2009 9:28pm
ChrisRedux (mail):
Dilan: That's the point you are missing. Sexual harassment law basically prohibits atrocious conduct.

Thank you.

By the way, ladies and gentlemen, many of us find the C-word being tossed about here as readily as in that poor women's office as outrageous and offensive as the N-word is to many others.

I think Danny hit on the right point in the context of this discussion: we definitely need more women justices.
6.12.2009 9:36pm
ChrisRedux (mail):
P.S. ChrisRedux is me - ChrisTS - after another flame out on the computer.
6.12.2009 9:37pm
Danny (mail):
@ Dilan Esper
So the answer is yes right? I could have sued my old boss for example, when I worked in that café? No individual can legally sexually harrass another individual...
6.12.2009 9:49pm
Dilan Esper (mail) (www):
So the answer is yes right? I could have sued my old boss for example, when I worked in that café? No individual can legally sexually harrass another individual...

To establish sexual harassment, you would need to show that you were subjected to severe or pervasive harassment because of your gender, that would impair a reasonable man's ability to do his job.

It's not that easy to prove. (Actually, the single biggest misconception that people have about sexual harassment is that someone makes a stupid comment or a clumsy advance and into court you go. Hostile environments are actually quite hard to prove and usually involve evidence of long courses of egregious conduct, complaints to supervisors, etc.)
6.12.2009 9:53pm
VateDaseVip (mail) (www):
Компания набирает участников опросов
Оплата труда высокая. Более подробно на uxxicom. com или http://www.uxxicom.com/
6.12.2009 10:32pm
David M. Nieporent (www):
Why does sexual harrassment have to be gender-based? As I understand it sexual harrassment is being repeatedly exposed to unwanted sex talk, images, proposals, etc., from colleagues, regardless of the genders involved.
It's not, though many people -- including judges -- don't understand this. Actionable "sexual harassment" is a form of sex discrimination. That is, discrimination based on sex. Not talk about sex. The notion that mere talk about sex is sexual harassment is either a misunderstanding of the law, or is based upon the archaic notion that women are inherently fragile and likely to be psychologically harmed by talk about sex.
6.12.2009 10:51pm
David M. Nieporent (www):
So if your client asked you how often and to what extent he could express his pro-life views in the workplace...?

As a matter of prudence-- as often as he likes consistent with his employer's policies
Right, which brings up the more relevant question: if your client, an employer, asked you how often and to what extent he could allow his employees to express their pro-life views in the workplace...?
and as long as he isn't targeting it specifically at, say, a particular female worker who he knows had an abortion.
But you don't accept the one-to-one limitation; we've already covered that above. If I play anti-abortion speeches on the radio in the office, said woman may decide she's offended.
As a matter of law-- his greater worry is that his employer might firing him; the chances of a successful sexual harrassment lawsuit are close to zero.
What about the chances of a failed sexual harassment lawsuit, which is almost as bad, Dilan? (Why is it that you only accept the concept of 'chilling effects' when applied to laws passed by conservatives?) All you need to do is allege enough to survive a MTD, and you've imposed intolerable costs on the employer.
6.12.2009 10:57pm
Dilan Esper (mail) (www):
But you don't accept the one-to-one limitation; we've already covered that above. If I play anti-abortion speeches on the radio in the office, said woman may decide she's offended.

And in the conservative caricature of sexual harassment law, that would be actionable. But under the actual doctrine, it wouldn't be, because that is neither severe or pervasive gender-based harassment nor is likely to impair a reasonable woman's ability to work.

That said, it's not exactly good HR to be broadcasting pro-life propaganda in the workplace.

What about the chances of a failed sexual harassment lawsuit, which is almost as bad, Dilan? (Why is it that you only accept the concept of 'chilling effects' when applied to laws passed by conservatives?) All you need to do is allege enough to survive a MTD, and you've imposed intolerable costs on the employer.

1. Lots of sexual harassment suits are 12-b-6'd.

2. The question isn't simply whether there is a "chill", but what is chilled. I don't care that much if inappropriate sexual speech in the workplace is chilled.

I do care if political, artistic, or other socially beneficial speech delivered in appropriate circumstances is being chilled. But there's no evidence that it is.
6.12.2009 11:27pm
Hans Bader:
Yes, there is plenty of evidence that artistic and political speech is being chilled by the specter of "harassment" liability (at least in the great many jurisdictions that erroneously fail to require a showing of discriminatory intent for harassment liability).

As the Individual Rights Foundation noted,

"Overly broad definitions of harassment have had a negative effect on artistic freedom. Fearing harassment liability, California college instructors have excised elements of their curriculum. Melissa Balmain, Readers: This Column Might Offend You, Orange County Register, Dec. 7, 1994, Metro 1. The drawing of nude models has diminished; photos of Michelangelo's "David" are shown from the waist up; and a professor at California State University at Northridge was fired for asking students to make nude sketches. Id. Artistic expression in California schools has attracted lawsuits. A teenager sued a school district near Sacramento after her English teacher showed a movie based on Edgar Alan Poe's classic short story "The Pit and the Pendulum," which she perceived as sexually humiliating. Nevermore for Poe Film, Lawsuit Says, S.F. Examiner, Aug. 30, 1994, at A2.

"Many art censorship cases now result from sexual harassment charges. E.g., 2 People for the American Way, Artistic Freedom Under Attack 7, 50, 92, 111, 121, 156, 197, 208, 214 (1994). (Most of these cases involved artwork by female artists. See id. at 50, 92, 121, 156, 208, 214). For example, an exhibition on loan from the Museum of Modern Art, Nudes, was removed from Colgate University's Picker Art Gallery after administrators claimed it contributed to a hostile work environment for employees. Id. at 156. Classical nude paintings are among the most common targets of this form of censorship. E.g., Nat Hentoff, Sexually Harassed by Francisco Goya, Wash. Post, Dec. 27, 1991, at A21 (painting removed from classroom where it had hung for years after professor said it harassed her).

"What all of these baseless sexual harassment charges had in common was a failure to comply with the most essential of the elements of a sexual harassment claim: that the conduct complained of occur because of the complainant's sex. Sadly, those charges now have new life under the decision of the Court of Appeal, which dispenses with the requirement that a plaintiff show harassment occurred because of her sex."

--Amicus letter from Individual Rights Foundation to Chief Justice Ronald M. George &Associate Justices of the
California Supreme Court, June 25, 2004, at pp. 3-4, in Lyle v. Warners Bros. Television Productions, No. S125171.
6.12.2009 11:41pm
Dilan Esper (mail) (www):
OK, Hans, so 13 years ago, some overly zealous college professors told professors to lighten up on the nudes.

Which, by the way, doesn't even have anything to do with Title VII, which doesn't cover allegations of harassment by students against college professors.

I might add, as well, that one thing that conservatives were right about was that in the 1980's and 1990's there was a fascination among college administrators with campus speech codes which went far beyond the requirements of Title VII. So, I can perfectly imagine that in the 1990's, some stupid things were going on at college campuses in order to prevent harassment. (Dinesh D'Souza, before he went completely insane, documented some of them in "Illiberal Education".)

However, I don't see how that establishes that Title VII lawsuits have a chilling effect. None of those administrators were acting because of fear of employment discrimination litigation.
6.12.2009 11:59pm
Hans Bader:
Yes, the disturbing examples of artistic and political censorship I cited were indeed the product of a fear of harassment liability. The specter of liability has only grown since the 1980s and 1990s, as the 1991 Civil Rights Act creating new damages remedies, and courts began to disregard statutory limits on harassment claims as being unfashionable or "insensitive."

Some of the artistic censorship examples I cited above were prompted by complaints from college or government employees, rather than students.

And harassment liability is not limited to Title VII or the workplace. Title IX and Title 6 both restrict speech among students, or by professors toward students. See Davis v. Monroe County Bd. of Educ. (1999)(Title IX); Gant v. Wallingford Bd. of Educ. (Title 6).

So the fact that Title VII itself "doesn't cover" such speech is irrelevant, given that the Fair Housing Act, various public accommodations laws, Title VI and Title IX also regulate "peer harassment."
6.13.2009 12:16am
Dilan Esper (mail) (www):
Hans:

It doesn't make sense to argue that because college administrators infected with a bout of political correctness 15 years ago imposed some silly restrictions on art classes, that means we should curtail lawsuits against employers for sexual harassment now.

But then, nothing you have said in this thread has made much sense. You just have a bug up your ass about sexual harassment law.
6.13.2009 2:46pm
Hans Bader:
As is often the case, Dilan, your comments are ad hominem, and don't address the substance of what I said.

It's ironic for you to say that I "have a bug up [my] ass," given that people have been fired for less under the broad workplace sexual harassment policies you like so much. (Of course, your comments may not have been based on my sex, but then, you deny that discriminatory intent or motivation is an element of a sexual harassment claim.)

The examples of artistic and political censorship I cited above were all in response to actual harassment complaints, not the product of college administrators with nothing better to do indulging a "bout of political correctness."

Hostile-environment regulations, when stripped of any discriminatory intent requirement (you claim that requiring such intent is an "awful idea"), reach far more speech than the hate-speech regulations you purport to oppose. (Title VII logically has such a requirement, but it is has been ignored by many judges, resulting in vast amounts of undirected speech not aimed at a complainant based on her sex or race being treated as building blocks of a "hostile work environment" claim, as Professor Volokh's articles, linked to above, demonstrate).

Opposing hate-speech regulations, as you purport to do, while supporting hostile-environment harassment prohibitions aimed at undirected speech not aimed at a plaintiff based on her sex, is simply nonsensical. It is like saying you hate the color red, but love crimson.

Hostile-environment regulations aimed at such undirected speech reach far more broadly than hate speech bans. Few people would argue that criticizing feminism or affirmative action is hate speech, but there are certainly people who claim it is a building block of a hostile or offensive environment.
6.13.2009 6:31pm
ChrisRedux (mail):
Hans:

PLEASE. The case, in point, is hardly about censorship of artistic expression.

Do you really think we cannot reasonably distinguish between the grotesque, persistent, and sexist ugliness to which that woman was daily subjected in her workplace and paintings of nudes in the college art museum?

You've gone beyond a simple slippery slope fallacy into some set of fallacies or irrelevance.
6.13.2009 7:38pm
ChrisRedux (mail):
'fallacies of'

I might as well have a caveat apology in my signature.
6.13.2009 7:39pm
David M. Nieporent (www):
It doesn't make sense to argue that because college administrators infected with a bout of political correctness 15 years ago imposed some silly restrictions on art classes, that means we should curtail lawsuits against employers for sexual harassment now.
You're missing the point; it wasn't mere "political correctness," but the fear of liability.


And in the conservative caricature of sexual harassment law, that would be actionable. But under the actual doctrine, it wouldn't be, because that is neither severe or pervasive gender-based harassment nor is likely to impair a reasonable woman's ability to work.
You're being disingenuous here; one instance will rarely be severe and will never be pervasive. But the "pervasive" requirement doesn't require that any of the incidents be severe; a bunch of things that in isolation are trivial can add up to "pervasive" harassment. In the "actual" doctrine. Which means that the only way for an employer to escape liability is to ban non-severe, non-harassing things, so that they don't add up to pervasive harassment.

Again, look at the case which is the topic of Eugene's post. It contradicts all of your claims about how we shouldn't worry because only "conservative caricatures" of sexual harassment work that way. You reveal your true colors when you basically admit that you don't care about free speech as long as some woman claims to be offended.
6.13.2009 10:00pm
ChrisRedux (mail):
Dilan, I hereby pronounce you my newest addition to the 'god[s] among men/persons' pantheon.

I hope Arthur Kirkland will approve.
6.13.2009 10:07pm
Dilan Esper (mail) (www):
You reveal your true colors when you basically admit that you don't care about free speech as long as some woman claims to be offended.

David, if you look at actual sexual harassment law, as opposed to the fantasyland of Hans Bader and other right-wing critics, "some woman claiming to be offended" = defendant has nothing to worry about.

And what I don't care about is that somebody is going to be chilled from talking about T&A at work. If people were actually being chilled from APPROPRIATE and VALUABLE topics of discussion in a workplace, I would be worried. But I have seen no evidence of such a chill.

Simply put, I can imagine that some constitutionally protected, but low value, speech is chilled by sexual harassment litigation. For instance, it's probably harder for some people to bring copies of Maxim to work, and it's probably not advisable in many workplaces to talk with your male coworker about how nice your female coworker's breasts are.

But usually claims of chilling effects relate to speech that we actually think has high value and want to protect. And there's absolutely no evidence that THIS type of speech is being chilled.
6.13.2009 11:34pm
ReaderY:
The workplace is not a public forum, and I think government could enact a general harassment or worker's protection law that prohibits some conduct in the workplace that might be protected elsewhere.

But this is no such law: the law involved is not a general anti-harassment law, but one which prohibits members of different sexes differently.

It does seem odd to suggest, when members of both sexes are treated exactly the same, that one sex has such a delicate nature that it cannot be expected to hold up under conditions the hardier and less delicate sex can be expected to withstand.

Making these kinds of assumptions wouldn't seem to be a good way to implement a law whose basic requirement is that employers treat workers of both sexes equally.
6.14.2009 1:49am
ReaderY:
To clarify, I think government can address people's emotions, and people of both genders can find it very difficult to work in certain kinds of atmospheres. I would have less of a problem than Professor Volokh might with government regulating this type of conduct in a workplace as such, just as I have less of a constitutional problem than Professor Volokh does with obscenity laws etc.

But that said, I'm in complete agreement that the courts don't have any business extending discrimination-based sexual harassment law to cover any workplace where sex is discussed on grounds that women are always more offended by discussion of sexual matters than men.
6.14.2009 2:00am
Hans Bader (mail) (www):
I agree with Reader Y: even if we ignore the First Amendment, court rulings like the panel decision in Reeves v. C.H Robinson Worldwide are questionable for failing to require harassment plaintiffs to show discrimination (i.e., differential treatment), as federal civil-rights statutes logically require (e.g., Title VII and 42 USC 1981a).

I also agree that for courts to assume that sexual speech is disproportionately offensive to female employees and thus has a “disparate impact” on them — as some have advocated — raises serious equal-protection problems, since it rests on a gender stereotype. In striking down a statute banning “obscene, profane, indecent, vulgar, or suggestive” communications to women, a court observed that laws “based on ‘old notions’ such as a belief that females should be afforded special protection from ‘rough talk’ because of their perceived ’special sensitivities’ can no longer withstand equal protection scrutiny.” See In re Joseph T., 430 S.E.2d 523, 524 (S.C. 1993). Federal employment laws should not be interpreted broadly when doing so would raise serious constitutional issues. (See NLRB v. Catholic Bishop of Chicago, 440 U.S. 490, 499-501 (1979); Edward J. DeBartolo v. Fla. Gulf Coast Building & Constr. Trades Council, 485 U.S. 568, 575 (1988) (limiting law's reach to avoid potential free speech problem)).

I don't like raunchy radio programs, but that doesn't mean the government should ban listening to them, much less do so under the weak argument that they constitute sex discrimination.

The April 2008 decision in Reeves v. C.H. Robinson Worldwide, 525 F.3d 1139 (11th Cir. 2008), was inconsistent with at least two of the Eleventh Circuit's own past decisions: Baldwin v. Blue Cross, which defined sexual harassment as being a form of disparate TREATMENT — not disparate IMPACT — and Cross v. Alabama, which said that in the Eleventh Circuit (unlike some other circuits), discriminatory INTENT is required for a Title VII sexual harassment claim.

In Cross v. Alabama, 49 F.3d 1490, 1507-08 (11th Cir. 1995), the Eleventh Circuit held that “the elements of the two causes of action [sexual harassment claims under Title VII and the Fourteenth Amendment] are the same” in the Eleventh Circuit (unlike some other circuits), meaning that a sexual harassment plaintiff “must prove discriminatory motive or purpose.”

The Supreme Court has made clear that the fact that a woman is adversely affected, and that an employer knows this, is not enough to satisfy this exacting standard of showing a discriminatory purpose unless the employer intends to treat the female employee differently: “'Discriminatory purpose,’ however, implies more than intent as volition or intent as awareness of consequences. . .It implies that the decisionmaker . . . selected or reaffirmed a particular course of action at least in part 'because of,' not merely 'in spite of,' its adverse effects upon an identifiable group.” Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256, 279 (1979).

Thus, for the plaintiff to prevail, she must show that her co-workers aimed offensive comments at her based on her sex (or broadcast the offensive comments specifically to annoy her based on her sex), not just that she was reasonably offended by them and that they were pervasive.

“Title VII does not prohibit profanity alone, however profane. It does not prohibit harassment alone, however severe and pervasive. Instead, Title VII prohibits discrimination, including harassment that discriminates based on a protected category such as sex. Because a claim of sexual harassment under Title VII is a claim of disparate treatment, in order to prevail a plaintiff must show that similarly situated persons not of her sex were treated differently and better.” Baldwin v. Blue Cross, 480 F.3d 1287, 1301-02 (11th Cir. 2007); see also Lyle v. Warner Bros., 132 P.3d 211 (Cal. 2006) (sexual jokes not aimed at plaintiff did not support her sexual harassment claim).

Even if Title VII reached "disparate impact," and even if provisions like 42 USC 1981a did not bar compensatory damages in such cases, it would still be a mistake to automatically equate raunchy language or discussions of sex with discrimination based on sex.

Moreover, treating raunchy language that offends a single female employee ignores limits contained in “disparate impact” law itself. Disparate impact claims typically require proof that an employer practice systematically excludes female or minority employees, and can’t be based on the impact on just one employee or a small number of employees. See Coe v. Yellow Freight, 646 F.2d 444 (10th Cir. 1981). Sexual harassment cases typically involve just a single plaintiff, who sometimes sues even if other employees of the same gender are perfectly happy with their workplace, or if there are no other employees of her gender in the workplace. In Reeves, the plaintiff seems to have been the only female employee adversely affected by the conduct she recounted.

An employer that fails to prevent sexual or vulgar discussions in the workplace should not be held liable simply because female employees overhear them and claim to be disproportionately offended by them. Some judges seem to grasp this rule, and do not allow sexual harassment claims to be brought just because the plaintiff was offended by sexual or vulgar speech. See, e.g., Lyle v. Warner Bros., 132 P.3d 211 (Cal. 2006); Scusa v. Nestle U.S.A., Inc., 181 F.3d 958 (8th Cir. 1998); Hocevar v. Purdue Frederick Co., 223 F.3d 721, 737 (8th Cir. 2000); Duncan v. Denver, 397 F.3d 1300 (10th Cir. 2005); Butler v. Ysleta Independent School District, 161 F.3d 263, 270-71 (5th Cir. 1998); Pasqua v. Metropolitan Life Ins., 101 F.3d 514, 517 (7th Cir. 1996); Gallant v. Board. of Trustees, 997 F. Supp. 1231, 1232, 1234-35 (N.D. Cal. 1998).

The 2008 ruling in Reeves justified its jettisoning of the discriminatory intent requirement by saying that such intent is not required in racial harassment cases. But even if that were in fact true (and it does not appear to be in some circuits, see Caver v. City of Trenton, 420 F.3d 243 (3d Cir. 2005) (holding that racial harassment plaintiff, just like sexual harassment plaintiff, must show that “(1) he suffered intentional discrimination because of his [race]” and “(2) the discrimination was pervasive and regular”), circuit panels are bound by their own past sexual harassment precedents whether or not they seem consistent with other areas of the law, like racial harassment.

And prior Eleventh Circuit rulings, like Cross v. State of Alabama, 49 F.3d 1490, 1507-08 (11th Cir. 1995), had made very clear that a plaintiff “must prove discriminatory motive or purpose” under BOTH Title VII and the Equal Protection Clause (Section 1983), because “the elements of the two causes of action are the same.” Eleventh Circuit judges had reiterated that understanding over and over again. See, e.g., Mitchell v. Pope, 189 Fed. Appx. 911, 913, 2006 WL 197600111, *1 (11th Cir. July 14, 2006) (”elements of the two causes of action are the same”); Downing v. Bd. of Trustees of Univ. of Alabama, 321 F.3d 1017, 1023 (11th Cir. 2003) (”Cross holds that the elements of a sexual harassment claim under Title VII and the Equal Protection Clause are the same — meaning that the employee must prove that the state actor intended to discriminate because of the employee’s sex”) (opinion later withdrawn for other reasons); Downing, 321 F.3d at 1022 n.9 (In Title VII, “this language is aimed at intentional discrimination, and to prove a violation, a plaintiff must profer either direct or indirect evidence of the employer’s discriminatory intent”).

Moreover, requiring discriminatory intent or purpose is consistent with how courts handle other types of Title VII harassment cases based on the very same language, such as religious harassment cases, where discriminatory treatment and intent are required. See Rivera v. Puerto Rico Aqueduct and Sewers Authority, 331 F.3d 183, 190 (1st Cir. 2003) (rejecting religious harassment claim because of absence of discriminatory purpose; “Rosario asserts that the lyrics of the song are offensive to her, given her deep religious convictions. We do not doubt this is so. But the question is not whether a religious person could find the song offensive; it is whether religious animus prompted Rivera to sing it to her”). The panel did not explain why those cases should be given lesser weight in sexual harassment jurisprudence than racial harassment cases.

Getting rid of the requirement of discriminatory intent, and allowing suits over overheard comments that have a disproportionate impact on one gender or the other, also raises serious First Amendment problems. See Lyle v. Warner Bros., 132 P.3d 211, 300 (Cal. 2006) (Chin, J., concurring) (sexual harassment liability cannot constitutionally be applied to creative speech, such as that involved in books, newspapers, or television, that is "not directed at or about the plaintiff"). Positions on many sexual or gender issues like feminism, gender-based affirmative action, and how to define sexual harassment, are offensive to some listeners, and are sometimes alleged to be disproportionately more so to one gender than the other (there is a political gender-gap). Moreover, the discriminatory intent requirement is one of the few elements of harassment law that can keep it relatively clear and manageable.

"Sexual harassment" under federal case law is a term of art referring to whatever speech or conduct gives rise to a specified state — a "hostile work environment" — not to "harassment" as defined in the dictionary, or anything closely resembling a traditional tort, like a pattern of invasive conduct by one individual towards another. To be sure, a hostile environment can be created by one malicious individual repeatedly pestering a plaintiff. But it can also (if discriminatory intent is not required) be created gradually by many different people each individually making just one offensive statement within earshot of the plaintiff, if their statements cumulatively add up to a hostile environment over time, even if they harbored no ill-will or discriminatory animus towards the plaintiff. The result, as UCLA Law Professor Eugene Volokh notes, is to effectively force employers to suppress a vast array of otherwise-protected speech. If the discriminatory-intent requirement is not enforced, speech such as classical nude paintings and religious articles in employee newsletters would become potential building blocks of a hostile-environment claim. (By "discriminatory intent," I merely mean gender-based differential treatment; malice is not always required. See UAW v. Johnson Controls, 499 U.S. 187 (1991)).

To be sure, there are other elements of a harassment claim, like the requirement that the plaintiff show that the conduct complained of is "unwelcome" and occurred "based on sex." But the very court rulings that ignore the intent requirement often have gutted those other elements, so that they frequently add nothing relevant to the requirement of a "hostile work environment."

For example, people have responded to my past observation that a harassment plaintiff must show discriminatory intent by noting that harassment is only actionable if it is "unwelcome," and suggesting that the fact that harassment is "unwelcome" somehow makes it intentional even absent discriminatory motivation or targeting of the plaintiff. See Meritor Savings Bank v. Vinson, 477 U.S. 57, 68 (1986) (the essence of "any sexual harassment claim is that" the conduct was "unwelcome").

But the courts that don't enforce the requirement of discriminatory intent also often interpret "unwelcomeness" so broadly as to make it meaningless as a limit on harassment claims. They assume that harassment is "unwelcome" whenever a plaintiff is subjectively offended by it, even if the defendant had no way of knowing that, or even if the plaintiff used language similar to the defendant, which could have led the defendant to believe that the language was permissible. See, e.g., Galloway v. General Motors, 78 F.3d 1164 (7th Cir. 1996) (dictum); Gary v. Tyson Foods (W.D. Mo. 1999). This matters because, as Fifth Circuit Judge Edith Jones has observed, a common fact pattern in harassment cases is a plaintiff who sues over comments similar to those she herself has frequently made.

Defined purely subjectively, "welcomeness" thus adds nothing to the separate legal requirement that the plaintiff's work environment be "subjectively hostile." See, e.g. Harris v. Forklift Systems, 510 U.S. 17, 21-22 (1993) (work environment must be subjectively hostile for plaintiff to recover); Mendoza v. Borden, 195 F.3d 1238, 1245-1246 (11th Cir. 1999)(same). That violates the principle of tort law that one element of a tort should not be read as being duplicated, or subsumed by, another element of the tort.

An old Eleventh Circuit precedent interpreted unwelcomeness as having an objective component, so that a plaintiff who incited a defendant to say offensive things by saying similarly offensive things of her own could not sue based on them. See Henson v. City of Dundee, 682 F.2d 897, 902 (11th Cir. 1982) (to show unwelcomeness, plaintiff must show that she neither "solicited nor incited" the conduct and that she "regarded the conduct as undesirable or offensive"). Thus, it served a notice function that protected some speech. See, e.g., Brief of Center for Individual Rights and Boston Coalition for Freedom of Expression as Amici Curiae in Support of the Petition for Certiorari in Avis Rent A Car System v. Aguilar, 529 U.S. 1138 (2000) (citing cases and EEOC rulings that interpreted "unwelcome" as having an objective component).

Some other federal appeals courts, like the Eighth Circuit, continue to follow this rule, barring plaintiffs from hypocritically suing the employer for comments made by their co-workers that are similar to those made by the plaintiffs themselves, under the theory that they have objectively welcomed such comments. See, e.g., Scusa v. Nestle U.S.A., Inc., 181 F.3d 958 (8th Cir. 1998); Hocevar v. Purdue Frederick Co., 223 F.3d 721, 737 (8th Cir. 2000).

But some courts (especially state courts) do not, viewing the requirement as unfashionable and outdated. By interpreting "unwelcomess" as purely subjective, they have effectively dispensed with any notice to the accused, who is now deemed a harasser if his speech unintentionally creates a hostile environment.

What is a "hostile environment" can be very vague, as a federal appeals court noted in Pasqua v. Metropolitan Life Ins. Co, 101 F.3d 514 (7th Cir. 1996). Indeed, a Maryland civil rights agency warned that "the legal boundaries" of what is actionable "are so poorly marked," that "the best course of action is to avoid" any potentially offensive remarks. Reflecting the ambiguity, federal appeals courts differ greatly among themselves as to what conduct they believe is severe or pervasive enough to create a hostile environment. Within the same district, different juries often find starkly similar conduct to either not constitute harassment at all, or to be so patently and egregiously harassing as to warrant punitive damages. I used to work as an attorney at the U.S. Department of Education's Office for Civil Rights, and there was certainly nothing clear about how we interpreted our sexual harassment guidance.

When someone other than the courts is enforcing a ban on harassment, the courts immediately recognize the disturbing vagueness of the "hostile environment" concept (especially when any requirement of discriminatory intent or targeting is dispensed with). For example, the Ninth Circuit overturned a public college professor's discipline for unintentionally creating a hostile environment on vagueness grounds in Cohen v. San Bernardino Valley College, 92 F.3d 968 (9th Cir. 1996). And the Oregon Supreme Court, on state constitutional grounds, overturned a civil-rights agency's fine on an evangelical Christian employer for unknowingly creating a hostile work environment through religious proselytizing in Meltebeke v. Bureau of Labor and Industries, 903 P.2d 351, 363 (Or. 1995), even though it found that the conduct indeed violated the agency's hostile-environment harassment rule, because ignoring the employer's intentions would have a chilling effect on freedom of religion. And in Dambrot v. Central Michigan University, 55 F.3d 1177 (6th Cir. 1995), the court struck down a college's hostile environment harassment code as unconstitutionally vague, since whether the code was violated turned partly on the subjective reactions of listeners.

But the courts are sometimes blind to the vagueness of the "hostile work environment" concept when they themselves apply harassment law through damages liability — even though the First Amendment vagueness doctrine applies to civil as well as criminal liability, see Bullfrog Films v. Wick, 847 F.2d 502 (9th Cir. 1998), and the Supreme Court has long recognized that the "fear of damage awards" in a lawsuit can chill speech even more than "the fear of prosecution." See New York Times v. Sullivan, 376 U.S. 264, 277 (1964).

Note that the First Amendment is implicated when the government makes a private employer restrict speech through tort liability, even though the private employer is perfectly free to voluntarily restrict speech in its own workplace. See New York Times v. Sullivan (Supreme Court, 1964) (defamation lawsuits are subject to First Amendment limits); Korb v. Lehman (4th Cir. 1990) (government can't make private employer fire employee for protected speech, even though private employer could have done so voluntarily); Lyle v. Warner Bros. (Cal. 2006) (Chin, J., concurring) (sexual harassment suit is subject to First Amendment limits); Truax v. Raich (Supreme Court, 1916) (fact that employer could voluntarily fire someone for a reason doesn't mean government could make it do so); Merritt v. Mackey (9th Cir.) (fact that private employer can fire employee without due process, since it is not bound by the Constitution, does not mean that a government official can lawfully pressue the private employer into firing that employee).
6.14.2009 12:56pm
David M. Nieporent (www):
The workplace is not a public forum, and I think government could enact a general harassment or worker's protection law that prohibits some conduct in the workplace that might be protected elsewhere.
Hmm; I'm not sure of the logic there. No, the workplace isn't a public forum; it's a private forum not owned by the government. It seems the government should have less control over the workplace than a public forum.

It's bizarre that language that one can say to any passerby on the street, a street that passerby is forced to pay for with her tax dollars, is protected, but when she has a choice whether to be there -- the workplace -- she gets more protection.
6.14.2009 2:20pm
Dilan Esper (mail) (www):
But this is no such law: the law involved is not a general anti-harassment law, but one which prohibits members of different sexes differently.


Oncale would suggest this is not true.
6.14.2009 3:09pm
Hans Bader (mail) (www):
No, the Supreme Court's Oncale decision expressly states that sexual harassment is NOT a general anti-harassment law, but only one that prohibits members of different sexes from being treated differently (contrary to the panel decision in Reeves v. C.H. Robinson Worldwide):

"Title VII does not prohibit all verbal or physical harassment in the workplace; it is directed only at 'discriminat[ion] . . . because of . . . sex.'' We have never held that workplace harassment, even harassment between men and women, is automatically discrimination because of sex merely because the words used have sexual content or connotations."

--Oncale v. Sundowner Offshore Services, 523 U.S. 75,80 (1998).

In short, the Oncale decision supports my argument at the Washington Examiner and Point of Law that sexual harassment plaintiffs must show that the speech they complain of was aimed at them based on their sex -- not just that it was offensive or created a "hostile or offensive work environment."

Further, the Oncale decision lists three ways of showing sexual harassment, each turning on gender-based motivation.

Moreover, the fact that the workplace is not a public forum like a street corner does not mean that speech in it is subject to less protection, or make it more subject to government regulation, since non-public forum analysis is designed to allow the government to regulate its OWN property, NOT private property. To the contrary:

As the Ninth Circuit noted in Metro Display Advertising v. City of Victorville, 143 F.3d 1191 (9th Cir. 1998), which held that speech was fully protected in privately-owned non-public fora (like bus shelters), "Private property affords the strongest protection to free speech."
6.14.2009 5:55pm
Dilan Esper (mail) (www):
Hans, what I was referring to was that Oncale gives the lie to the claim that sexual harassment law only targets speech directed at women and not men.

But it seems to me clear that any time someone even mentions sexual harassment law, Mount Bader erupts. You are obsessed, and obsession is unhealthy, Hans.
6.14.2009 9:18pm
Joseph Slater (mail):
I return from a vacation and find this interesting and mostly civil discussion on sexual harassment law. I generally agree with Dilan Esper, and would only add two things.

First, it almost always takes a lot of really gross stuff to get a court to find hostile work environment harassment. Indeed, only a miniscule fraction/tiny handful of such cases rely on speech alone. Almost invariably, in case where plaintiff has won, there have also been a number of harassing acts, typically grossly inappropriate touching, that help create the "severe and pervasive" climate.

Second, David M. Neiporent has a point that some employers over-react, but I believe this has become less common since the Supreme Court established the Ellerth defense: in short, employers can avoid liability for hostile environment cases if they have a decent anti-harassment policy which plaintiff fails to use.
6.15.2009 10:55am
Hans Bader (mail) (www):
In case you hadn't noticed, Dilan, this very post by Professor Volokh links to my commentary about the case at the Washington Examiner.

(I have also written about the case at slightly-greater length at OpenMarket, and about the general subject at Point of Law).

So it's hardly surprising that I would address the very case that was discussed in this post and was the subject of my commentary. I note that you have posted a great many comments above yourself (alas, a few of them containing ad hominem attacks).
6.15.2009 11:11am
Dilan Esper (mail) (www):
Hans, the fact of the matter is that even if Prof. Volokh takes a similar position to the position that you take (and it isn't identical) you have an outrage quotient that is, shall we say, several levels above Prof. Volokh. And it is grossly disproportionate to the alleged harm.

I'll give you an equivalent liberal example. I don't think it is a very good thing that Paul Little, aka Max Hardcore, was convicted on obscenity charges. His product is certainly not my cup of tea, but I think that obscenity law, as a restriction on acts of consenting adults, has long outlived its usefulness, and I think it is too vague and could potentially chill legitimate and valuagle expression such as frank and graphic discussions of sex.

That said, in actuality, I don't think obscenity law is chilling very much high value speech-- I think it is chilling a lot of low value speech like bestiality videos, scatalogical porn, fisting videos, and the like. So I don't get very exercised about it. Yeah, I think it's a bad precedent, and I'll articulate why I think Mr. Little should have a constitutional defense to the charges if the matter comes up, but I don't erupt into a massive, full throated, passionate defense of this position, because the facts don't even warrant one.

And that's despite the fact that unlike sexual harassment law-- which serves a very important and necessary purpose of protecting gender equality in the workplace-- obscenity law doesn't really serve any important purpose at all.

So yeah, I think you are obsessed. And you are acting as if the potential threat of HWE law to the First Amendment is a lot greater than it really is, while at the same time undervaluing how important it is to have a very strong and aggressive legal rule against sexual harassment that doesn't let perpetrators off the hook.

In a perfect world, I would want to protect appropriate discussions of sex in the workplace. But I don't think that you can equate a potential chill of some of these discussions with the sorts of chilling effects that have actually done great harm to First Amendment rights in the past, especially when the proposal to do something about that chill may potentially compromise the ability of women to do their jobs free of sexual harassment.
6.15.2009 12:16pm
The slope be slippery:
Once we accept restrictions on free speech because it offends someone at a workplace, then what is the principle that prevents general harassment (hate-speech) laws? I really don't see the difference between the use of Title VII or a law stating, "Businesses may not play radio programs that mention T&A." Why bother with waiting for a person to be offended, we could save so many hurt feelings by banning any speech that might offend before it offends.
6.16.2009 1:47am

Post as: [Register] [Log In]

Account:
Password:
Remember info?

If you have a comment about spelling, typos, or format errors, please e-mail the poster directly rather than posting a comment.

Comment Policy: We reserve the right to edit or delete comments, and in extreme cases to ban commenters, at our discretion. Comments must be relevant and civil (and, especially, free of name-calling). We think of comment threads like dinner parties at our homes. If you make the party unpleasant for us or for others, we'd rather you went elsewhere. We're happy to see a wide range of viewpoints, but we want all of them to be expressed as politely as possible.

We realize that such a comment policy can never be evenly enforced, because we can't possibly monitor every comment equally well. Hundreds of comments are posted every day here, and we don't read them all. Those we read, we read with different degrees of attention, and in different moods. We try to be fair, but we make no promises.

And remember, it's a big Internet. If you think we were mistaken in removing your post (or, in extreme cases, in removing you) -- or if you prefer a more free-for-all approach -- there are surely plenty of ways you can still get your views out.