The Volokh Conspiracy - Racially Offensive Speech Complaining About Racial Profiling and Racial Hiring Disparities

May Help Lead to Legal Liability Under Hostile Work Environment Harassment Law:

Candy Bredt, a white woman, worked as a medical assistant at the Cancer Institute of New Jersey (a division of the University of Medicine and Dentistry of New Jersey); after she quit, she sued, complaining about (among other things) racial harassment.

The alleged harassment consisted of three categories of speech and conduct.

"[Regina] Johnson[, a coworker,] told plaintiff that she had a 'black butt' and subsequently smacked her on the buttocks on at least three occasions. Johnson threatened to 'kick her white ass.'"
Johnson also made some much more political statements. "Johnson routinely spoke about how white state troopers always harassed her and her husband. In her deposition plaintiff testified that because the office was small and crowded, she was forced to listen to Johnson's contentious discussions with others, including her supervisor defendant Will[ia]ms, about how white people got all of the jobs and that there were not enough black doctors and nurses at CINJ. Plaintiff testified that she recalled on one occasion that defendant Williams distributed a flier that depicted photographs of newly graduated doctors. Johnson and Williams looked at the photos to see 'how many black doctors graduated because it's all white people and Indians.' They then said, 'Look at that. Disgusting.'"

This was listed on par with the first category, under the rubric of "[P]laintiff contends Johnson's speech and conduct were clearly indicative of her racial animosity towards white people and created a work environment of 'black vs. white' and 'us vs. them.'"
"In addition to the racially charged comments, plaintiff testified that Johnson told her that she hated her, called plaintiff stupid, also called her 'asshole' once a week, and on one occasion took her finger and pushed it against plaintiff's breast."

The court reversed a summary judgment entered in favor of the employer, concluding that a jury could find that the offending speech could lead to legal liability:

We are satisfied that when the race-based comments and conduct directed at plaintiff, and the racially insensitive remarks about white people plaintiff was forced to overhear, are considered along with the facially neutral comments and conduct Johnson directed towards plaintiff, a jury could reasonably find that Johnson's conduct and racially charged comments were directed towards plaintiff because she was white, were sufficiently severe or pervasive to make a reasonable person believe that the conditions of the workplace had been altered, and that the working environment had become hostile or abusive.

Bredt v. Johnson, 2006 WL 941754 (N.J. Super. App. Div. Apr. 13).

This, it seems to me, is a serious First Amendment violation. I've argued elsewhere that offensive one-to-one speech, such as that involved in items 1 and 3, may indeed be properly punishable under harassment law. Speech said to a particular person who is offended by it, and who wants it to stop, is likely only to insult, not to edify or educate. But under the First Amendment, discussions with willing listeners about racial profiling, or about allegedly bad racial disparities in various professions, have to be constitutionally protected against government-imposed legal liability, even if some people who overhear them may be offended.

Now in many harassment cases, including this ones, there's a complicating factor: The lawsuit is based on a combination of protected speech and unprotected conduct or unprotected speech (such as offensive touching, threats, or even one-to-one insults).

But the free speech law on this is quite clear: A judgment cannot be based even in part on constitutionally protected speech. If the plaintiff wants to sue based on the unprotected material, that's just fine; the factfinder should then be allowed to consider only that material. But a plaintiff cannot argue for a judgment based both on the unprotected matter and the constitutionally protected speech. (For cites and more argument, see here.)

This makes sense, both theoretically and practically. Theoretically, assume that someone is sued for a combination of constitutionally protected speech and unprotected conduct. The plaintiff's argument is that the speech and the conduct supposedly create a "hostile environment" or "interfere with prospective business advantage" or "intentionally inflict emotional distress" or some such.

Either the lawsuit would succeed based on the conduct alone, or it wouldn't. If it would succeed, then there's no reason why the words need to be considered: Might as well sue just based on the conduct.

But if it wouldn't succeed without the words, then it's the constitutionally protected speech that makes the difference between the defendant's actions being lawful and unlawful. If the defendant had engaged only in the unprotected conduct, he would have been acting lawfully, since by hypothesis the conduct alone wasn't sufficient to support the plaintiff's claim. But making the constitutionally protected statements in addition to the conduct is what makes the behavior illegal. The law is punishing the constitutionally protected speech, since it wouldn't have punished the conduct standing alone. That's a First Amendment violation.

What's more, in most civil cases (including harassment cases), the jury will be asked to render a general verdict as to whether there was speech or conduct that was severe or pervasive to create a hostile, abusive, or offensive work environment based on race. They could disbelieve the plaintiff's claims about the statements in the first and third categories, but find hostile environment liability based on just the statements in the second category. Or they could believe some of the plaintiff's claims, and conclude that a combination of some of the statements in all three categories created a hostile environment, but without the statements in the second category, the other speech wouldn't have risen to the level of a hostile environment. Or they could find a hostile environment based solely on the first and third categories.

We just won't know, because they won't be rendering specific findings about each claimed statement. All we know is that the jury verdict may well have rested on the racial profiling/racial disparity statements alone.

Practically, imagine how a reasonably cautious employer would react to a decision imposing liability in a mixed protected speech/unprotected speech case. Recall that in harassment cases, the employer may be liable for the aggregate of the statements made by a wide range of employees -- an insult here, an overheard racially offensive political discussion there, a poster there.

Given this, the employer can't just say to its employees "It's fine for you to make potentially offensive political statements about racial profiling or racial disparities in various professions, unless some other people are also mistreating the offended worker in other ways (about which you, the employee, might not even know)." So long as courts say that constitutionally protected speech can contribute to a hostile environment, the cautious employer would be wise to restrict it: After all, it's this constitutionally protected speech that might make the difference between a legally permissible, nonhostile environment, and an illegal hostile environment. So -- just as the Court has recognized -- imposing liability based on a combination of constitutionally protected speech and unprotected conduct would unconstitutionally chill the speech.

	[Eugene Volokh, May 18, 2006 at 1:50pm] Trackbacks Racially Offensive Speech Complaining About Racial Profiling and Racial Hiring Disparities May Help Lead to Legal Liability Under Hostile Work Environment Harassment Law: Candy Bredt, a white woman, worked as a medical assistant at the Cancer Institute of New Jersey (a division of the University of Medicine and Dentistry of New Jersey); after she quit, she sued, complaining about (among other things) racial harassment. The alleged harassment consisted of three categories of speech and conduct. "[Regina] Johnson[, a coworker,] told plaintiff that she had a 'black butt' and subsequently smacked her on the buttocks on at least three occasions. Johnson threatened to 'kick her white ass.'" Johnson also made some much more political statements. "Johnson routinely spoke about how white state troopers always harassed her and her husband. In her deposition plaintiff testified that because the office was small and crowded, she was forced to listen to Johnson's contentious discussions with others, including her supervisor defendant Will[ia]ms, about how white people got all of the jobs and that there were not enough black doctors and nurses at CINJ. Plaintiff testified that she recalled on one occasion that defendant Williams distributed a flier that depicted photographs of newly graduated doctors. Johnson and Williams looked at the photos to see 'how many black doctors graduated because it's all white people and Indians.' They then said, 'Look at that. Disgusting.'" This was listed on par with the first category, under the rubric of "[P]laintiff contends Johnson's speech and conduct were clearly indicative of her racial animosity towards white people and created a work environment of 'black vs. white' and 'us vs. them.'" "In addition to the racially charged comments, plaintiff testified that Johnson told her that she hated her, called plaintiff stupid, also called her 'asshole' once a week, and on one occasion took her finger and pushed it against plaintiff's breast." The court reversed a summary judgment entered in favor of the employer, concluding that a jury could find that the offending speech could lead to legal liability: We are satisfied that when the race-based comments and conduct directed at plaintiff, and the racially insensitive remarks about white people plaintiff was forced to overhear, are considered along with the facially neutral comments and conduct Johnson directed towards plaintiff, a jury could reasonably find that Johnson's conduct and racially charged comments were directed towards plaintiff because she was white, were sufficiently severe or pervasive to make a reasonable person believe that the conditions of the workplace had been altered, and that the working environment had become hostile or abusive. Bredt v. Johnson, 2006 WL 941754 (N.J. Super. App. Div. Apr. 13). This, it seems to me, is a serious First Amendment violation. I've argued elsewhere that offensive one-to-one speech, such as that involved in items 1 and 3, may indeed be properly punishable under harassment law. Speech said to a particular person who is offended by it, and who wants it to stop, is likely only to insult, not to edify or educate. But under the First Amendment, discussions with willing listeners about racial profiling, or about allegedly bad racial disparities in various professions, have to be constitutionally protected against government-imposed legal liability, even if some people who overhear them may be offended. Now in many harassment cases, including this ones, there's a complicating factor: The lawsuit is based on a combination of protected speech and unprotected conduct or unprotected speech (such as offensive touching, threats, or even one-to-one insults). But the free speech law on this is quite clear: A judgment cannot be based even in part on constitutionally protected speech. If the plaintiff wants to sue based on the unprotected material, that's just fine; the factfinder should then be allowed to consider only that material. But a plaintiff cannot argue for a judgment based both on the unprotected matter and the constitutionally protected speech. (For cites and more argument, see here.) This makes sense, both theoretically and practically. Theoretically, assume that someone is sued for a combination of constitutionally protected speech and unprotected conduct. The plaintiff's argument is that the speech and the conduct supposedly create a "hostile environment" or "interfere with prospective business advantage" or "intentionally inflict emotional distress" or some such. Either the lawsuit would succeed based on the conduct alone, or it wouldn't. If it would succeed, then there's no reason why the words need to be considered: Might as well sue just based on the conduct. But if it wouldn't succeed without the words, then it's the constitutionally protected speech that makes the difference between the defendant's actions being lawful and unlawful. If the defendant had engaged only in the unprotected conduct, he would have been acting lawfully, since by hypothesis the conduct alone wasn't sufficient to support the plaintiff's claim. But making the constitutionally protected statements in addition to the conduct is what makes the behavior illegal. The law is punishing the constitutionally protected speech, since it wouldn't have punished the conduct standing alone. That's a First Amendment violation. What's more, in most civil cases (including harassment cases), the jury will be asked to render a general verdict as to whether there was speech or conduct that was severe or pervasive to create a hostile, abusive, or offensive work environment based on race. They could disbelieve the plaintiff's claims about the statements in the first and third categories, but find hostile environment liability based on just the statements in the second category. Or they could believe some of the plaintiff's claims, and conclude that a combination of some of the statements in all three categories created a hostile environment, but without the statements in the second category, the other speech wouldn't have risen to the level of a hostile environment. Or they could find a hostile environment based solely on the first and third categories. We just won't know, because they won't be rendering specific findings about each claimed statement. All we know is that the jury verdict may well have rested on the racial profiling/racial disparity statements alone. Practically, imagine how a reasonably cautious employer would react to a decision imposing liability in a mixed protected speech/unprotected speech case. Recall that in harassment cases, the employer may be liable for the aggregate of the statements made by a wide range of employees -- an insult here, an overheard racially offensive political discussion there, a poster there. Given this, the employer can't just say to its employees "It's fine for you to make potentially offensive political statements about racial profiling or racial disparities in various professions, unless some other people are also mistreating the offended worker in other ways (about which you, the employee, might not even know)." So long as courts say that constitutionally protected speech can contribute to a hostile environment, the cautious employer would be wise to restrict it: After all, it's this constitutionally protected speech that might make the difference between a legally permissible, nonhostile environment, and an illegal hostile environment. So -- just as the Court has recognized -- imposing liability based on a combination of constitutionally protected speech and unprotected conduct would unconstitutionally chill the speech.