What Speech Does "Hostile Work Environment" Harassment Law Restrict?

Prof. Eugene Volokh, UCLA Law School *

 

Originally published in the Georgetown Law Journal; reproduced with modifications and additions, and some added and omitted footnotes -- footnote numbers track the original.

Cite text as Eugene Volokh, What Speech Does "Hostile Work Environment" Harassment Law Restrict?, 85 Geo. L.J. 627 (1997).

 

Introduction

I.  Political, Artistic, Religious, and Socially Themed Speech May Constitute "Harassment"
    A.  The Formal Definition of "Harassment"
    B.  The Cases
    C.  The Severity/Pervasiveness Requirement

II.  How the Law's Vagueness Increases Its Breadth

III.  The Law's Effect on Individual Statements
    A.  The Inevitable Need to Suppress Isolated Statements
    B.  What Experts Advise Employers
    C.  What Employers Are Actually Doing
    D.  What Courts Are Forbidding Through Injunctions
    E.  The Effect of Cases That Rely Even in Part on Speech
    F.  "It is Necessary to Prohibit the Individual Actions"

Conclusion:  The Speech that Harassment Law Restricts

             

INTRODUCTION

              Workplace harassment law is a speech restriction of remarkable breadth.  It goes far beyond slurs, hardcore pornography, repeated vulgar sexual propositions, and the like, and can suppress, among other things,

I aim to prove this claim below.

             

I.  POLITICAL, ARTISTIC, RELIGIOUS, AND SOCIALLY THEMED SPEECH MAY CONSTITUTE "HARASSMENT"

A.  The Formal Definition of "Harassment"

              The first place to look in determining the scope of harassment law, of course, is the legal definition of "harassment."  Speech can be punished as workplace harassment if it's

              Note what the definition does not require.  It does not require that the speech consist of obscenity or fighting words or threats or other constitutionally unprotected statements.  It does not require that the speech be profanity or pornography, which some have considered "low value." 17  Under the definition, it is eminently possible for political, religious, or social commentary, or "legitimate" art, to be punished. 18

              "David Duke for President" posters, after all, might well be quite offensive to many reasonable people based on their race, religion, or national origin, and may create a hostile environment; 19 likewise for confederate insignia. 20  This would be even more true of bigoted or insensitive remarks about minority or female political candidates. 21  Many reasonable people might view strident denunciations of Catholicism, whether political or religious, as creating a hostile environment for devout Catholics, 22 or criticisms of feminism as creating a hostile environment for women. 23  A reasonable person who believes that pinups "encourag[e] men to view [women] as sex objects" 24 might say something like the following, even about classical paintings:

I personally find "art" in any form whether it be a painting, a Greek statue or a picture out of Playboy which displays genitals, buttocks, and/or nipples of the human body, to be pornographic and, in this instance, very offensive and degrading to me as a woman.

              Even if I wanted to personally take time to appreciate this kind of "art," I reserve the right for that to be my choice and to not have it thrust in my face on my way into a meeting with my superiors, most of whom are men. 25

B.  The Cases

              And if some complainants make these claims, some fact-finders may well agree:

              Religious Speech:  If some complainants make these claims, some fact-finders may well agree.  A state court has in fact found that it was religious harassment for an employer to put religious articles in its employee newsletter and Christian-themed verses on its paychecks. 26  The EEOC likewise found that a claim that an employer "permitted the daily broadcast of prayers over the public address system" over the span of a year was "sufficient to allege the existence of a hostile working environment predicated on religious discrimination." 27  A recent article by two employment lawyers gives "repeated, unwanted `preaching´ episodes [by a fundamentalist Christian employee] that offend coworkers and adversely affect their working conditions" as a "bright-line example[]" of actionable harassment; an employer in such a situation would be "well advised to take swift remedial action." 28

              If polite religious proselytizing can be harassment, then of course harsher criticism of religion would be, too.  In the EEOC's words, "disparag[ing] the religion or beliefs of others" in the workplace may be illegal; "a Christian employee would have recourse under Title VII if a `secular humanist´ employer" -- or presumably secular humanist coworkers -- "engaged in a pattern of ridiculing the employee's religious beliefs.´" 29  A state administrative agency has found that an employee was religiously harassed by a Seventh Day Adventist coworker who often talked about religion to everyone.  There was no allegation that the coworker used any religious slurs, though he did "[make] negative comments to [plaintiff] about her Lutheran faith," did "criticize[] (and tr[y] to change) [plaintiff's] personal life style," and did "depress[] [plaintiff] a great deal" with what plaintiff saw as "Seventh Day Adventism's `pessimistic doomsday´ outlook."  Likewise, a federal district court has held that a pattern of religiously themed comments, which mostly consisted of statements that the target was a sinner and had to repent, and didn't include any religious slurs, could be religious harassment. 30

              Social and Political Commentary:  Likewise, one court has said that coworkers' use of job titles such as "foreman" and "draftsman" may constitute sexual harassment, 31 and a Kentucky human rights agency has gotten a company to change its "Men Working" signs (at a cost of over $35,000) on the theory that the signs "perpetuat[e] a discriminatory work environment and could be deemed unlawful under the Kentucky Civil Rights Act." 32  Another court has characterized an employee's hanging "pictures of the Ayatollah Khome[i]ni and a burning American flag in Iran in her own cubicle" as "national-origin harassment" of an Iranian employee who saw the pictures. 33

              In another case, the EEOC concluded that an employer had racially harassed a Japanese-American employee by (1) creating an ad campaign that used images of samurai, kabuki, and sumo wrestling to refer to its Japanese competition, and (2) referring to the competition in internal memos and meetings using terms such as "Jap" and "slant-eyed."  There were no allegations that the slurs were used to refer to the complaining employee (though it's of course understandable that he found them offensive).  Curiously, the EEOC did not focus exclusively or even primarily on the slurs; it seems to have viewed the ads themselves as being as offensive -- and as illegal - - as the slurs.  The case was finally settled "for undisclosed monetary terms and other commitments." 34  Click here for more examples.

              Similarly, the Office of Federal Contract Compliance Programs (OFCCP) characterized anti-veteran postings at Ohio State University as harassment based on Vietnam-era veteran status:

              OFCCP's onsite review revealed that the University had not maintained a working environment free of harassment, intimidation and coercion based upon covered veteran status for special disabled veterans and veterans of the Vietnam Era.  For example, in one of the departments Professors displayed inflammatory pictures and postings, offensive to Vietnam era veterans on their office windows facing the corridors.  But a Vietnam era veteran was required to remove a poster considered offensive by members of a non-protected group.

              During the most recent military action of Operation Desert Storm, the negative attitude toward Vietnam era veterans became vocal.  Complaints regarding the offensive postings and verbal harassment were brought to the attention of University Executives. . . .  However, no action was taken to effect change prior to OFCCP's review.  [This constitutes a v]iolation of 41 CFR 60-250.4(a) [ban on discrimination against veterans] and 41 CFR 60-250.6(a). 35

              Offensive union-related speech can also lead to harassment liability.  Thus, in Bowman v. Heller, an employee who disliked a certain female candidate for union office gave some of his coworkers a Hustler centerfold with the candidate's picture superimposed over the model's head.  The trial court concluded that this constituted sexual harassment of the candidate.  (An appellate court agreed that the speech was constitutionally unprotected, but reversed the harassment portion of the judgment on unusual state-law grounds.) 36  The NLRB has likewise suggested that it would be racial harassment for employees to use the words "Spics, Kikes, and Broads" to criticize the president of the employee union. 37

              And courts are not bashful about this.  The Sixth Circuit put it quite plainly:

In essence, while [harassment law] does not require an employer to fire all "Archie Bunkers" in its employ, the law does require that an employer take prompt action to prevent such bigots from expressing their opinions in a way that abuses or offends their co-workers.  By informing people that the expression of racist or sexist attitudes in public is unacceptable, people may eventually learn that such views are undesirable in private, as well.  Thus, Title VII may advance the goal of eliminating prejudices and biases in our society. 38

              Sexually Themed Jokes:  The Montana Human Rights Commission has found a hostile environment based solely on off-color jokes and cartoons displayed in the workplace.  None of the jokes were said specifically to the complainant; none referred to her; the cartoons were distributed by men and women alike, apparently once or twice a month over several years; the cartoons weren't even sexist or misogynistic.  The Commission, however, was not amused.  It concluded that the jokes "ha[d] no humorous value to a reasonable person," and "offended [complainant] as a woman."  The Commission ordered the city to pay damages, to "not . . . permit, tolerate, or condone the sexual harassment of any employee" (apparently including such humor), and to "evaluate on an annual basis the performance of each department head on the basis of the quality and success of their efforts to implement and enforce the antidiscrimination policies." 39

              Another court has found a hostile environment based largely (though not entirely) on "caricatures of naked men and women, animals with human genitalia, . . .  a cartoon entitled `Highway Signs You Should Know´ [that showed] twelve drawings of sexually graphic `road signs' (entitled, for example, `merge,´ `road open,´ etc.)," and so on. 40  Though "[m]any of the sexual cartoons and jokes . . . depicted both men and women," the court concluded that "widespread verbal and visual sexual humor -- particularly vulgar and degrading jokes and cartoons . . . may tend to demean women." 41  The court ultimately held that "every incident reported by [plaintiff]" -- the jokes as well as the other conduct -- "involves sexual harassment." 42

              Similarly, the EEOC recently concluded that an employee's allegation that she was "sexually harassed by offensive jokes-of-the-day circulated to her and her co-workers, and by the Supervisor's praise [in a department meeting] of the co-worker circulating the jokes" was sufficient to state a claim under Title VII; 43 the jokes were neither at the offending employee's expense nor were they even generally sexist or misogynist. 44  The New Jersey Office of Administrative Law likewise found one incident of 11 pages worth of jokes being forwarded by e-mail to the whole department to be "sexual harassment" creating an "offensive work environment"; the judge "f[ou]nd the 'jokes' degrade, shame, humiliate, defame and dishonor men and women based upon their gender, sexual preference, religion, skin pigmentation and national and ethnic origin" and were thus illegal. 45

              An official U.S. Department of Labor pamphlet likewise defines harassment as including cases where "[s]omeone made sexual jokes or said sexual things that you didn't like," with no requirement that the jokes be insulting or even misogynistic. 46  A Seattle Human Rights Department pamphlet gives "the secretary who was frequently told sexual jokes by her co-workers and supervisor" as an example of sexual harassment. 47  A Hanson, Massachusetts harassment policy for city employees defines sexual harassment as "any unwelcome action, sexual in content or implication, in the workplace that includes . . . sex oriented `kidding´ or `jokes' [and] sexually suggestive objects in the workplace." 48

              Employment experts have gotten the message, and are passing it along to employers.  Thus, they recommend, to avoid liability employers should purge workplaces of "blonde jokes" (on the plausible theory that they convey offensive attitudes towards women), 49 discussions of scenes from sex comedies such as "There's Something About Mary" -- "`It's exactly the sort of thing that could create a problem for somebody,´ says Carla Hatcher, a Dallas attorney who handles office sexual harassment cases" 50 -- and Clinton-Lewinsky jokes. 51

              Art and Music:  Likewise, art or music that is seen as politically offensive, misogynistic, or sexually themed can lead to harassment liability.  A U.S. Court of Appeals in Slayton v. Ohio Dep't of Youth Services, for instance, upheld a $125,000 damages award based in part on a coworker's playing "misogynistic rap music" and displaying "music videos depict[ing] an array of sexually provocative conduct." 52

              The injunction in another case barred the possession or display of any "sexually suggestive, sexually demeaning, or pornographic" 53 materials in the workplace, defining "sexually suggestive" as covering anything that "depicts a person of either sex who is not fully clothed . . . and who is posed for the obvious purpose of displaying or drawing attention to private portions of his or her body."  This would clearly cover a wide variety of art, and might actually send people to jail -- one form of sanction for violation of a court order -- for possessing and display Gauguin prints.  And I describe below many instances in which harassment complaints were brought based on legitimate art, from Goya to New Yorker cartoons, but which never came to court because employers, faced with the risk of liability, ordered the art taken down.

              Accurate Discussions Among Co-Workers:  Harassment law may also punish accurate statements about coworkers, such as the fact that a coworker parole officer had been a prostitute.  Nash v. New York State Executive Department held that such speech could by itself create a hostile, abusive, or offensive environment; 54 and of course as a factual matter this makes sense:  When your coworkers, who are law enforcement professionals like you, correctly tell each other that you had committed crimes that many think are pretty reprehensible, of course this will create a chilly environment for you.  The question is whether the government acting as sovereign may suppress such speech, on pain of huge liability, in order to protect the employee from it.

              Speech Among Consenting Listeners:  In fact, speech can be punished as harassment even if it isn't overheard by anyone who is offended.  Consider Schwapp v. Town of Avon, a Second Circuit case holding that "ten racially-hostile incidents of which [plaintiff] allegedly was aware during his 20-month tenure," of which only four occurred in his presence, were enough to create a potential harassment case.  "The district court," the Circuit held, "erred in failing to consider the eight . . . incidents that did not occur in Schwapp's presence," including one "made prior to Schwapp's employment" and "two comments made during Schwapp's employment [but outside his presence] that were hostile toward minority groups of which Schwapp is not a member. . . .  [T]he fact that a plaintiff learns second-hand of a racially derogatory comment or joke by a fellow employee or supervisor also can impact the work environment . . . ." 55

              This makes sense as a matter of substantive harassment law:  For instance, if I (a Jew) know my coworker is a virulent anti-Semite, I might find it hard to work around him even if he's always polite to my face.  Having to work around people who hate you (even politely hate you) might well create a "hostile, abusive, or offensive work environment."  But this shows that harassment law provides no safe harbor even when one is talking to coworkers who one knows won't be offended -- any bigoted statements made at work may lead to harassment liability.

              Frequency:  Finally, the "severe or pervasive" requirement does not require that the offensive speech happen daily or weekly.  Some cases have held that even a single incident of speech -- for instance, one racial slur by a supervisor, or a "single incident of verbal abuse and negative comment concerning Japanese people" -- may be "severe or pervasive." 56  Brown Transport, discussed above, was based on biweekly paychecks.  Dernovich was based on sexually themed jokes that were distributed about every two weeksSchwapp involved an average of one offensive statement every two months; if one counts only statements heard personally by the plaintiff, the rate was one every five months.  Danco, Inc. v. Wal-Mart Stores, Inc., a First Circuit case, affirmed a harassment finding based on three incidents: two personal slurs (one including a threat), plus the words "White Supremacy" spray-painted in a parking lot. 57

              Other cases have granted summary judgment against harassment claims based on single incidents, or even based on several incidents, on the grounds that they weren't "severe or pervasive" enough. 58  I don't suggest that single incidents or even biweekly or bimonthly incidents will always lead to the case going to the jury.  But as one might expect, "severity or pervasiveness" is generally in the eye of the beholding judge and jury.

             

C.  The Severity/Pervasiveness Requirement

              If there is anything about harassment law that prevents liability based on this sort of speech, it has to be the severity/pervasiveness component:  The fact-finder -- judge or jury -- must conclude not only that the speech was offensive, based on race, religion, sex, or some other attribute, but also that it was either "severe" or "pervasive" enough to create a hostile or abusive environment for the plaintiff and for a reasonable person.  And if the outcomes in the above cases were, as one critic suggests, "bizarre judicial misapplications," "exception[s] to the rule" that should be ignored in determining the rule's true scope, it could only be because the speech in those cases didn't meet the severity or pervasiveness thresholds. 59

              But how exactly can we condemn the fact-finders here of being guilty of "bizarre judicial misapplications"?  After all, nothing in the rule they were told to apply says that religious proselytizing, political commentary, or off-color jokes are insulated from liability.  Perhaps you or I can say that a reasonable person ought not find Bible verses or the phrase "Men Working" or jokes about sexually graphic road signs to be "severe" or "pervasive" enough to create a hostile environment; but obviously other people, who probably thought themselves to be quite reasonable, have disagreed. 60

              "Severe," "pervasive," "hostile," and "abusive" are mushy terms, as courts have specifically acknowledged. 61  I'm not completely sure what it means to say that people have "bizarre[ly] misappli[ed]" such terms.  They might just have had a different notion of how offensive something must be to be "severe," or how frequent it must be to be "pervasive."  Certainly courts have taken very different views of what these terms mean.

              When we judge a rule, we can't judge it simply by how we would apply it ourselves, or by the best-case scenario of how it could be applied.  As Justice Brennan warned, "If there is an internal tension between proscription and protection in the statute, we cannot assume that, in its subsequent enforcement, ambiguities will be resolved in favor of adequate protection of First Amendment rights." 62

              Rather, we must judge the rule by how we might expect the "ambiguities will be resolved" by the variety of fact-finders in our judicial system.  And I imagine that in that system, quite a few fact-finders will conclude that various religious statements, political posters, "vulgar and degrading" jokes, and "indecent" art can indeed be "severe" or "pervasive" enough to create a hostile environment.  Perhaps one can argue that this is acceptable; but one can't deny that this will happen.

             

II.  HOW THE LAW'S VAGUENESS INCREASES ITS BREADTH

              So we see that, on its face, harassment law can suppress core protected speech.  Whatever shelter there is for such speech must come from the "severe or pervasive" requirement.  The heart of a defense of harassment law, I take it, would be an assertion that this requirement -- despite the examples I gave above -- will shield all protected speech except the most obnoxious.

              Let's consider, though, how this would work out in practice.  Imagine you're an employment lawyer, and an employer comes to you and says:

Help me out.  One of my employees is complaining that her coworkers' political posters and lunchroom conversations have created a hostile environment based on her [race / religion / sex / national origin / age / disability / military membership or veteran status / sexual orientation / marital status / political affiliation / criminal record / occupation / citizenship status / personal appearance / tobacco use outside work / Appalachian origin / receipt of public assistance / dishonorable discharge from the military].  The speech sounds to me like normal political argument, and I don't want to suppress it.  But I also don't want to be stuck with a big lawsuit.

              What can you say in response?  Saying "Well, you're OK if the speech isn't severe or pervasive enough to create a hostile or abusive environment" obviously gets you nowhere:  The employer will just ask you "Well, is it severe or pervasive enough or isn't it?"

              Your answer would probably have to be "We won't know until it gets to court."  With vague words like "severe," "pervasive," "hostile," and "abusive," that's generally all you can say.  As one state administrative agency frankly acknowledged, "one person's `discussion´ may be another person's `harassment.´" 63  And because of this, the safe advice would be:  "Shut the employees up."  After all, the typical employer doesn't profit from its employees' political discussions; it can only lose because of them. 64  The rational response is suppression, even if the lawyer personally believes that the speech probably doesn't reach the severe-or-pervasive threshold.  In the words of an article entitled Sexual Harassment: The Employer's Role in Prevention:

The practical advice for employers evaluating potentially harassing conduct [including speech] is to be as conservative as possible.  If conduct might be construed as harassing, it has no place in the workplace.  If an employee (and especially a manager or a supervisor) is not sure whether or not conduct will be unwelcome, the best advice is to avoid such conduct. . . .

              I recognize the appeal in [an approach that tries to more warmly accommodate sexual banter and consensual supervisor-subordinate relationships]; as an employer, I might even make the decision to adopt it -- risks and all.  However, as a lawyer advising clients as to how to limit liability in an ever more litigious employment setting, I don't recommend it. 65

              If one takes at all seriously what the Supreme Court has said, this oversuppression is precisely the effect that vague laws have.  Vagueness leads people "to `steer far wider of the unlawful zone,´ than if the boundaries of the forbidden areas were clearly marked.  Those . . . sensitive to the perils posed by . . . indefinite language, avoid the risk . . . only by restricting their conduct to that which is unquestionably safe." 66  Unless the Court was talking through its hat when it said this, the risk of employers "steer[ing] far wider of the unlawful zone" because of the rule's vagueness has to be considered in determining the true magnitude of the speech restriction. 67  As the Court held in Reno v. ACLU, in determining the breadth of a law, we must look to whether "a speaker [could] confidently assume that [his speech] would not violate the CDA"; the "vague contours of [a law's] coverage" "present[] a greater threat of censoring speech that, in fact, falls outside the statute's scope." 68

              In fact, consider the suggestion to employers given by Professor Deborah Epstein, who disagrees with my estimation of the breadth of harassment law.  Contrary to the position I've just outlined, she argues that "an employer can easily create a narrow, speech-protective antiharassment policy that minimizes any chilling effect":

One strategy is to explain to workers that they may make gender-specific or sexual comments until they receive an indication from a particular employee that such statements are unwelcome. . . .  Once a worker has indicated that the speech is unwelcome, the speaker should be directed to either stop or set up a meeting with a designated EEO officer for advice. 69

              Employees can thus only say "gender-specific or sexual" things -- and I assume this includes supposedly sexist political or social statements, sexually themed jokes, and so on 70 -- until one listener objects.  At that point, they must either shut up or schedule a meeting with a "designated EEO officer" before speaking further.

              Gone is any requirement that the speech be "severe or pervasive," or that it create a hostile or abusive environment, or that it even be offensive to a reasonable person.  The policy Professor Epstein suggests would bar any "gender-specific or sexual" speech so long as there's any objection, at least until one gets clearance from above.  This is "a narrow, speech-protective antiharassment policy that minimizes any chilling effect"? 71

              Of course, harassment law, like many other laws, is underenforced as well as overenforced.  Many employers, because of ignorance or bigotry or whatever else, ignore the risk of liability and don't suppress speech or conduct that should be restricted.  And though I have no idea whether "in the vast majority of cases, the judiciary is not engaging in overbroad enforcement, but instead is failing to impose liability," 72 I'm sure this underenforcement happens in some cases, perhaps many cases.

              But other employers pay attention to the risk and consequently suppress any speech that might possibly be seen as harassment, even if you and I would agree that it's not severe or pervasive enough that a reasonable person would conclude that it creates a hostile environment.  Likewise, some fact-finders are imposing fairly low thresholds of severity or pervasiveness, even as other fact-finders are imposing higher ones.  In those cases, the law may pose First Amendment problems regardless of whether it's underenforced in other situations. 73

              The Maryland Commission on Human Relations puts it quite frankly, in a pamphlet entitled Preventing Sexual Harassment: A Fact Sheet for Employees:  "Because the legal boundaries are so poorly marked, the best course of action is to avoid all sexually offensive conduct in the workplace."  Hard to argue with logic like that. 74

             

III.  THE LAW'S EFFECT ON INDIVIDUAL STATEMENTS

A.  The Inevitable Need to Suppress Isolated Statements

              We see, then, that the "severe or pervasive" requirement is too vague to provide much protection for speech, and even the policy proposed by one of harassment law's leading defenders essentially eliminates this requirement.  This, though, isn't some slight drafting flaw that can be corrected with a bit of tinkering:  Harassment law by its nature restricts individual statements, even when they're clearly not severe or pervasive enough to generate a hostile environment.

              Recall that a hostile environment can be created by many different employees, each making only one or a few offensive statements.  Individually, the statements might not be "severe or pervasive" enough to create liability, but in the aggregate they may be actionable.

              An employer can't just announce to its employees:  "Say whatever you like, so long as the aggregate of all your statements and all the other employees' statements isn't so severe or pervasive that it creates a hostile environment."  Most employees have no idea what their coworkers may have said days, weeks, or months ago.  If the employer wants to protect itself, it must tell each employee what speech that employee must avoid.

              The employer's only reliable protection is a zero-tolerance policy, one which prohibits any statement that, when aggregated with other statements, may lead to a hostile environment; I quote several examples of this in a footnote. 75

B.  What Experts Advise Employers

              In fact, many employment experts are recommending that employers suppress individual instances of offensive speech.  One writes, in an article entitled Avoid Costly Lawsuits for Sexual Harassment:

Suggestive joking of any kind simply must not be tolerated . . .  At the very least, you must insist that supervisors never engage in sexual joking or innuendo[; t]hat also goes for employees who hope to be promoted into supervisory positions. . . .  Nip These Activities in the Bud . . .  Don't let your employees [p]ost pin-up photographs on the walls[, or t]ell sexual jokes or make innuendos. 76
Another writes, in a piece called Not Sure What Constitutes Sexual Harassment? Take a Look:  "If you think there's any chance that what you are doing is unwelcome or offensive, knock it off."  An article by an Investor's Business Daily reporter called Watch What You Say, or Be Ready to Pay says:
Be aware that offensive comments may translate into megabuck liability.  Any disparaging comments or joking references concerning an employee's age, sex, race, religion or national origin can put your company on a fast track to court . . . .  If you're an employer, have a strong written policy against a hostile work environment and harassment. 77
An article by another reporter, called Telling Jokes in the Workplace Can Be Dangerous, recommends -- in discussing a sexual harassment complaint based on a sexually themed joke overheard by an offended employee --
`Don't say or do anything that can be remotely interpreted as sexual/sexist in nature to anyone near or at work.´ If you follow these guidelines you have nothing to be afraid of. 78
An Employee Relations Law Journal article on religious harassment asserts:
[A]n employer's incentive to prohibit conduct and speech that might constitute harassment has increased based on the Civil Rights Act of 1991, which subjects employers to liability for emotional distress and punitive damages.  To avoid liability, the prudent employer will proscribe all speech and conduct that may constitute harassment.  The possibility of creating a "chilling effect" from prohibiting speech and conduct that may constitute harassment is outweighed by the risk of significant liability. 79

              The Sexual Harassment Prevention Game, a board game that is intended for use in employee training programs and that has been endorsed by the National Public Employees and Labor Relations Association, suggests the following:

              A female janitor, offended by posters of partially clad female bodybuilders taped on the locker room wall, complains of sexual harassment.  The pictures were hung by another female janitor using them as inspiration for pumping iron.

              What should be done?  [Answer:] Remove the posters that are found offensive. . . .               Confused about harassment?

              Well, then follow [the game creator's] advice.

              Don't say or do anything around an employee or co-worker that you wouldn't do around your spouse, your child, or dear old mom. 80

              Likewise, consider the four policies proposed in the Practicing Law Institute's Sample Sexual Harassment Policies. 81  All begin by paraphrasing the EEOC sexual harassment guidelines, which say that harassment includes "verbal . . . acts" that "create[] an intimidating, hostile or offensive working environment" (no mention of severity or pervasiveness here).  Then they get down to details:

              [From the first policy:] Prohibited Conduct . . . Examples of conduct which could be considered sexual harassment include: . . . sexually suggestive jokes . . . directed toward another . . . ; the open display of sexually oriented pictures, posters, or other material offensive to others . . .

              [From the second:] Examples of sexual harassment include, but are not limited to . . . repeated sexual jokes . . . and display in the work place of sexually suggestive objects or pictures.

              [From the third:] What Is Sexual Harassment?  . . . Gender Harassment:  Generalized gender-based remarks and behavior. . . .

              [From the fourth:] [T]he following is a partial list of conduct which may be considered unwelcome and which will not be tolerated . . . .  Any sexually-oriented . . . remarks[] or jokes . . . made in the presence of any employee who indicates . . . that such conduct in his or her presence is unwelcome; . . .  Any displays [of] materials that are in any way sexually revealing, sexually suggestive, sexually demeaning or pornographic. 82

There's no proviso that an occasional sexually themed joke or "sexually oriented picture" is permissible, so long as it's neither severe nor pervasive.  The policies -- just like Professor Deborah Epstein's proposed policy -- on their face condemn every such incident; and, of course, what else could they do?  These are not hysterical overreactions of the misinformed.  They are exactly what one should expect from reasonable, prudent lawyers giving advice on how to avoid liability in the real world. 83

              Finally, consider the words of the EEOC itself:  "While isolated incidents of harassment generally do not violate federal law, a pattern of such incidents may be unlawful.  Therefore, to discharge its duty of preventive care, the employer must make clear to employees that it will stop harassment before it rises to the level of a violation of federal law." 84  Wise advice, and entirely consistent with the realities of harassment law -- but it makes clear that harassment law does pressure employers into restricting speech even when it doesn't "rise to the level of a violation of federal law."

C.  What Employers Are Actually Doing

              Employers are in fact enacting such broad policies, 85 and are indeed suppressing individual incidents of offensive speech.  When a Florida city found that "frequent sexual jokes and innuendos among employees [created] a hostile work environment," the city announced "a `zero-tolerance´ policy on sexual humor." 86  Leavenworth, Kansas has enacted a policy that bans all sexual harassment, including even isolated incidents of "[o]ffensive comments, jokes, innuendos, other sexually oriented stateemtns, and displaying sexually suggestive objects or pictures, cartoons, posters, or magazines. 87

              When a library employee complained about a coworkers' posting a New Yorker cartoon that used the word "penis" -- with no sexually suggestive connotation at all -- the library ordered that it be taken down. 88  When a professor at Penn State complained that a print of Goya's Naked Maja hanging in a classroom constituted sexual harassment, the school administration removed the painting, citing as one reason the risk of harassment liability. 89  When an employee at Murfreesboro (Tenn.) City Hall complained about a painting depicting a partly naked woman, the City Attorney had it taken down, saying:

I feel more comfortable siding with protecting the rights under the Title VII sexual harassment statutes than . . . under the First Amendment. . . .  We wouldn't permit that type of drawing or picture to hang in the fire hall.  As far as I'm concerned, a naked woman is a naked woman. 90
In both of the last two cases, the paintings probably couldn't have created a hostile environment by themselves, even in the view of jurors who most dislike nudes or who are most convinced that "nude or seminude photographs of women . . . harm[] women by encouraging men to view them as sex objects." 91  But surely the employers couldn't say to their employees:  "Well, a nude here or there is fine, but if any of you puts up a picture that causes the aggregate to go over the severe-or-pervasive threshold, you'll be disciplined."  To prevent liability, the employer has to suppress each individual picture; in the words of the Murfreesboro City Attorney, discussing the painting of the partly naked woman:
Though [the complainant] probably couldn't win a sexual harassment suit over the picture, Murfreesboro still has to protect itself against future lawsuits, [the City Attorney] said.  If the city did nothing about the complaint about [the painting] or other complaints of harassment, a court could conclude the city was ignoring the rights of its female employees. 92

              There are many more such incidents.  The 1994 Artistic Freedom Under Attack, a People for the American Way report, lists eight other instances where employees claimed that public art involving nudity constituted workplace harassment.  In each case the work was taken down, though in two instances it was later reinstalled. 93  In another case in Dayton, an artist's adaptation of Titian's Venus painting was removed because "employees felt they were being sexually harassed by the painting." 94  In Los Angeles, county officials objected that a sculpture of a naked man displayed in the County Hall of Justice and Records "might interfere with programs on sexual harassment," and asked the county Arts Council to cover it. 95  In Seattle, critics condemned as "a form of sexual harassment" a painting in a city hill gallery that depicts a woman who symbolizes Mother Earth giving birth to a child poisoned by chemicals. 96

              At the University of Nebraska at Lincoln, a harassment complaint was filed against a graduate student who had on his desk a 5" x 7" photograph of his wife in a bikini.  The employer ordered that the photo be removed. 97  And of course this is only to be expected:  When the law tries to root out "pornography," especially using a definition as vague as "speech severe or pervasive enough to create a hostile environment for a reasonable person based on sex," attacks on legitimate art are sure to follow. 98

D.  What Courts Are Forbidding Through Injunctions

              This is also why many injunctions in harassment cases ban isolated statements.  One court, for instance, has ordered an employer and its employees to "refrain from any racial, religious, ethnic, or other remarks or slurs contrary to their fellow employees' religious beliefs" 99 -- no severe-or-pervasive threshold there.  Another injunction prohibited, among other things, "derogatory bulletins, cartoons, and other written material" and "any racial, ethnic, or religious slurs whether in the form of `jokes,´ `jests,´ or otherwise." 100  A third ordered the employer and employees to "cease and desist from . . . racial harassment in the workplace including, but not limited to, any and all offensive conduct and speech implicating considerations of race." 101  Yet another prohibited all employees "from making sexually explicit remarks, jokes, language and engaging in such conduct [i.e., sexually harassing conduct] toward female employees." 102

              Another court barred any "sexually suggestive, sexually demeaning, or pornographic" 103 materials from the workplace, again without regard to whether they were severe or pervasive enough to create a hostile environment -- a single Gauguin reproduction would have been a contempt of court.  The injunction defined "sexually suggestive" as covering anything that "depicts a person of either sex who is not fully clothed . . . and who is posed for the obvious purpose of displaying or drawing attention to private portions of his or her body."  (There are many cases in which "legitimate" art has led to harassment claims; I cite them in a footnote. 104)  An amicus brief in the appeal of that case, signed by seventy-nine law professors (including, among others, Anthony Amsterdam, Erwin Chemerinsky, and Susan Estrich), explained that such a broad injunction against these "discrete acts" was necessary because "the court is both authorized and obligated to insure that the illegal activity will not recur." 105  The courts and the professors realize that you can't simply enjoin everyone from "acting in a way that's so severe or pervasive as to create a hostile environment":  if you want to make an injunction stick, you have to ban each individual statement. 106

              And if that's the way for courts to undo existing hostile environments, then it's also the way employers must act to prevent liability in the first place.  Employers, after all, are also "obligated to insure" that harassment won't happen. 107  As the seventy-nine law professors point out, to prevent a hostile environment, even "discrete acts" must be banned, and this is as true for preventive policies as for remedial injunctions. 108

E.  The Effect of Cases That Rely Even in Part on Speech

              The employers' need to restrict any statement that might contribute to a hostile environment -- even when the statement doesn't create the environment by itself -- also illustrates another important point:  Court decisions that even partly rely on certain statements tend to suppress that sort of statement more generally.  Consider, for instance, Makhayesh v. Great Lakes Steel, 109 in which a Muslim employee of Syrian descent sued for national origin and religious harassment.  Part of the alleged harassment was direct, personal insults, but part was coworkers generally referring to Muslim religious leaders as "toilet seat[s]" and suggesting, in the context of the Gulf War, that the United States "nuke Iraq and Syria" and "go back [to Libya] and wipe them off the face of the earth." 110  The Michigan Court of Appeals reversed a grant of summary judgment for the employer, and held that the evidence was sufficient to let the harassment claims to go to trial. 111

              How should a cautious employer respond to a holding such as this?  It can't just say to its employees "It's fine for you to make offensive political statements about Iraq, Syria, Libya, and Muslim religious leaders, 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 certain speech can contribute to a hostile environment, the cautious employer would be wise to restrict it.  This may be why the Supreme Court has repeatedly made clear that the First Amendment is implicated whenever liability is based even in part on protected speech; 112 any such liability will deter people from engaging in the protected speech as well as the unprotected conduct. 113

F.  "It is Necessary to Prohibit the Individual Actions"

              Finally, consider the view of Professor Thomas Grey, a thoughtful and moderate scholar who was the architect of the Stanford Law School harassment restrictions.  The restrictions barred even isolated incidents of grossly offensive speech, but, Professor Grey argued, this was necessary to prevent a hostile educational environment: 114

[T]he injury of discriminatory denial of educational access through maintenance of a hostile environment can arise from single acts of discrimination on the part of many different individuals.  To deal with a form of abuse that is repetitive to its victims, and hence constitutes the continuing injury of harassment to them, it is necessary to prohibit the individual actions that, when added up, amount to institutional discrimination. 115
On this point, Professor Grey is absolutely right:  To avoid the risk of a hostile environment, an institution can't, in practice, just restate the severity/pervasiveness test -- it must "prohibit the individual actions [including speech] that, when added up, amount" to a hostile environment.

             

CONCLUSION:  THE SPEECH THAT HARASSMENT LAW RESTRICTS

              The scope of harassment law is thus molded by three facts:

                 

  1. On its face, harassment law draws no distinction among slurs, pornography, political, religious, or social commentary, jokes, art, and other forms of speech.  All can be punished, so long as they are "severe or pervasive" enough to create a "hostile environment."

                 

  2. The vagueness of the terms "severe" and "pervasive" -- and the fact that the law is implemented by employers, who have an incentive to oversuppress -- means that the law may practically restrict any speech that an employer concludes might be found by a fact-finder to be "severe or pervasive" enough.

                 

  3. Finally, because an employer is liable for the aggregate of all its employees' speech, wise employers will bar any sort of statement that might, if repeated by enough people, be "severe or pervasive" enough to create a hostile environment.
Putting all this together, harassment law potentially burdens any workplace speech that's offensive to at least one person in the workplace based on that person's race, religion, sex, national origin, age, disability, military membership or veteran status or, in some jurisdictions, sexual orientation, marital status, political affiliation, criminal record, occupation, citizenship status, tobacco use outside work, Appalachian origin, receipt of public assistance, dishonorable discharge from the military, or personal appearance, even when the speech is political and even when it's not severe or pervasive enough to itself be actionable.

              The evidence I have set out -- the best guess as to how a cautious employer would behave, the policies recommended by employment lawyers, the policies actually implemented by some employers, the injunctions issued by courts, the logic of the seventy-nine law professors' brief, the justification provided in the educational context by Professor Grey, even the recommended policy given by Professor Epstein, who claims that harassment law is a very narrow speech restriction -- all points towards this.  The "regulatory reach" of harassment law is certainly not limited to the "most objectively extreme, persistent, and unwelcome" forms of conduct. 116

              Of course, the speech-restrictive potential of harassment law won't be realized in every situation.  Many employers will live dangerously -- from prejudice, ignorance, or even a commitment to free expression.  Many offended employees won't complain.  Many fact-finders will apply high thresholds of "severity" and "pervasiveness" rather than low ones.

              But this is true of all speech restrictions.  Sexually themed literature wasn't completely suppressed by pre-1960s restrictive obscenity laws.  Sedition laws are notoriously ineffective at suppressing sedition.  Even the broadest libel laws would be vastly underenforced, and juries can exhibit unjustified hostility towards libel plaintiffs as well as unjustified sympathy.

              To properly measure harassment law's impact on speech, we should ask:  What restrictions would prudent, law-abiding employers -- employers who heed the EEOC's statement that "Prevention is the best tool for the elimination of sexual harassment" 117 -- impose in trying to avoid liability? 118  The answer appears to be what I outline above:  a broad prohibition on a wide range of isolated statements.

              It's a mistake to hide behind the supposed shield of the severity and pervasiveness requirements.  Harassment law puts at risk speech -- including religious proselytizing, bigoted political statements, sexually themed humor, and sexually suggestive art -- whether or not it's severe or pervasive.  Whether this burden is justified is a matter that's been extensively debated elsewhere; click but there should be no denying that the burden exists.


    1.    See, e.g., Harris v. Forklift Sys., Inc., 510 U.S. 17, 21-22 (1993) (barring harassment based on race, religion, sex, or national origin).  I discuss here only hostile environment harassment; I don't purport to deal with quid pro quo sexual harassment, in which a supervisor demands sex in exchange for favorable treatment.

    2.    Leonard v. Metropolitan Life Insurance Co., 318 N.J. Super. 337 (App. Div. 1999) (concluding that plaintiff could sue for disability harassment based on two remarks about his diabetes); Eggleston v. South Bend Community Sch. Corp., 858 F. Supp. 841, 847-48 (N.D. Ind. 1994) (barring harassment based on age and disability, under the Age Discrimination in Employment Act and the Americans with Disabilities Act); Greene v. Seminole Electric Cooperative, Inc., 1997 WL 710317 (Fla. App. Nov. 14) (barring harassment based on obesity, based on the Americans with Disabilities Act, including "jokes and derision" based on the employee's weight).

    3.    Petersen v. Department of the Interior, 71 M.S.P.R. 227, 235, 237 (1996) (holding that 38 U.S.C. § 4311 prohibits veteran status harassment, such as a veteran being called "psycho" and "baby killer," and specifically adopting standard Title VII analysis); New Hampshire Comm'n for Human Rights, A Manual on Sexual Harassment 47 (giving sample sexual harassment policy, which covers age, race, color, national origin, religion, sex, sexual orientation, disability status, and veteran status; "Examples of such harassment include, but are not limited to . . . display or circulation of written materials or pictures degrading to any gender, racial, ethnic, religious or other group listed above"); 38 U.S.C. § 4311 (1994) (barring discrimination against present or former armed service members); 41 C.F.R. § 60-250.4 (1996) (barring discrimination by federal contractors against Vietnam-era veterans); Cal. Mil. & Vet. Code § 394 (1997) (barring discrimination against present armed service members); Colo. Rev. Stat. Ann. § 28-3-506 (1997) (same); Ill. Stat. ch. 775 §§ 5/1-103(Q), 5/2-102 (1997) (same); Mich. Stat. Ann. § 32.271 (1997) (same); N.C. Stat. § 127B-11 (1997) (same); 51 Penn. Cons. Stat. Ann. § 7309(a) (1997) (same); R.I. Stat. Ann. § 30-12-10(a) (1996); Iowa Code Ann. § 29A.43 (barring discrimination against members of national guard or military reserves); Wisc. Stat. Ann. § 111.321 (1997) (same); Wyo. Stat. Ann. § 19-2-505 (1997) (same); Okla. Stat. Ann. tit. 44, ch. 4, § 208 (1997) (barring discrimination against members of national guard); City of Boston Code §§ 12-9.2, 12-9.3 (barring discrimination against past or present military members).

              Under the logic of harassment law, such bans on discrimination also ban hostile environment harassment.  See infra text accompanying note 18 (describing veteran status harassment case); Ill. Stat. ch. 775 §§ 5/1-103(Q), 5/2-102 (barring discrimination in "terms, privileges, or conditions of employment" based on "military status"); 51 Penn. Cons. Stat. Ann. § 7309(a) (same); Wisc. Stat. Ann. § 111.321 (1997) (including membership in national guard or reserves together with all the other proscribed bases of discrimination, in the section that has been read as barring harassment as well as discrimination); Wisconsin Dep't of Workforce Dev., Wisconsin Fair Employment Law (saying that "[e]mployes may not be harassed in the workplace based on their protected status" and listing "military service membership" as a protected status); Indianapolis and Marion County Code § 581-102 (barring discrimination by city contractors in "terms, privileges, or conditions of employment" based on "disabled veteran status and Vietnam era veteran status"); Anne Arundel Community College, Computer and Electronic Communication Access and Usage at Anne Arundel Community College Policy("Students, faculty, staff and authorized guest users have a right to be free from electronic harassment by any member of the college community on the basis of their sex, sexual orientation, race, . . . or veteran status"); Harassment in the Workplace, pamphlet #ERD-7334-P (including "membership in the military reserve" in prohibited bases of harassment, alongside race, sex, and so on); IBM Corp., United States Staff Letter No. 4 (policy banning veteran status harassment alongside racial, sexual, and other forms of harassment); Weber State University, General Employee Information (same); VNA HealthCare Servs. Web Page (nondiscrimination statement listing veteran status harassment alongside other forms of harassment); Cameron University, Complaints of Discrimination (same).

              See also Fla. Stat. Ann. § 250.45 (1997) (barring discrimination in places of public accommodation based on a person's "lawfully wearing the uniform of any branch of the military or naval service"); Okla. Stat. Ann. tit. 44, ch. 4, § 208 (1997) (similar).

    4.    D.C. Code Ann. § 1-2512 (1981 & Supp. 1988) (barring discrimination in "terms, conditions, . . . or privileges of employment" -- a phrase that has been interpreted in the Title VII context as covering hostile environment harassment -- based on "marital status, personal appearance, sexual orientation, family responsibilities, matriculation, disability, or political affiliation"); Cal. Gov't Code § 12940(h)(1) (West 1992 & Supp. 1995) (barring discrimination based on marital status); N.Y. City Admin. Code & Charter § 8-107(a) (Supp. 1996) (barring discrimination in "terms, conditions or privileges of employment" based on, among other things, "marital status"); Seattle, Wash., Code § 14.004.0040 (1986) (same).

    5.    Boulder, Colo. Code § 12-1-1, 12-1-3 (barring discrimination in terms and conditions of employment -- which generally includes hostile environment harassment -- based on "gender variance," which includes "a persistent sense that a person's gender identity is incongruent with the person's biological sex"); New Orleans Code §§ 86-1, 86-131 (same as to "gender identification").

    6.    D.C. Code Ann. § 1-2512 (1981 & Supp. 1988) (barring discrimination in "terms, conditions, . . . or privileges of employment" -- including harassing speech -- based on "political affiliation"); Lansing, Mich. Code ch. 296.03(2) (barring discrimination in "terms, conditions, . . . or privileges of employment" based on, among other things, "political orientation"); Seattle, Wash., Code § 14.004.0040 (1986) (barring discrimination in "terms, conditions, . . . or privileges of employment" based on, among other things, "political ideology"); Madison, Wisc., Municipal Code §§ 3.23(8)(a); Broward County Code § 161/2-3(15), 161/2-21(1).

    7.    Wisc. Stat. Ann. §§ 111.31, 111.32 (barring discrimination in "terms, conditions, . . . or privileges of employment" -- which would include harassing speech -- based on arrest record and conviction record); N.Y. Correction Law § 752 (generally banning discrimination based on having "previously been convicted of one or more criminal offenses"); New York City Comm'n on Human Rights document (asserting that New York City human rights law bars harassment based on, among other things, "record of conviction or arrest"); City of Boston Code §§ 12-9.2, 12-9.3 (barring discrimination in "terms, conditions, or privileges of employment" based on "ex-offender status," defined as an arrest record, a record of conviction for petty misdemeanors, or a record of conviction for any misdemeanor when the sentence had elapsed over 5 years earlier); State of Wisconsin Dep't of Workforce Development, Harassment in the Workplace, pamhplet #ERD-7334-P (including "arrest or conviction record" in prohibited bases of harassment, alongside race, sex, and so on); Chippewa Valley Technical College, 1996-1997 Catalog Compliance Statement Cornell University (same); The Office of Equal Opportunity's Fall 1996 Semi-Annual Sexual Harassment Report n.3 (treating status as "ex-offender" as equivalent to race, sex, and so on); see also Nicolet Area Technical College, Affirmative Action policy 001 (same); Northwest Technical College [Minnesota], Affirmative Action -- NTC Policy 1050 (same).

    8.    City of Boston Code §§ 12-9.2, 12-9.3 (barring discrimination in "terms, conditions, or privileges of employment" -- which includes harassing speech -- based on "prior psychiatric treatment").

    9.    See Plochl v. Chicago National League Ball Club, Chicago Commission on Human Relations, No. 92-PA-46 (Oct. 4, 1993) (ticket scalper who was spoken to rudely because of his occupation stated a claim under Chicago antidiscrimination law, which bars discrimination and harassment based on, among other things, "source of income"); City of Boston Code §§ 12-9.2, 12-9.3 (barring discrimination in "terms, conditions, or privileges of employment" -- a phrase that has been interpreted to include harassing speech -- based on "source of income").

    10.    Ill. Stat. ch. 775 § 5/2-102 (1997) (barring discrimination in "terms, conditions or privileges of employment" -- a phrase that has been interpreted to include harassing speech -- based on "citizenship status"); N.Y. City Admin. Code & Charter § 8-107(a) (Supp. 1996) (same as to "alienage or citizenship status"); New York City Comm'n on Human Rights document (asserting that New York City human rights law bars harassment based on, among other things, "alienage or citizenship status"); cf. Wellspring Resources Harassment Policy (barring harassment based on, among other things, citizenship status); Columbia University Policy Statement on Discrimination and Harassment (same).

    11.    D.C. Code Ann. § 1-2512 (1981 & Supp. 1988) (barring discrimination in "terms, conditions, . . . or privileges of employment" -- a phrase that has been interpreted to include harassing speech -- based on "personal appearance"); Madison, Wisc., Municipal Code §§ 3.23(8)(a) (same, as to "physical appearance").

    12.    D.C. Code Ann. § 1-2512 (1981 & Supp. 1988) (barring discrimination in "terms, conditions, . . . or privileges of employment" -- a phrase that has been interpreted to include harassing speech -- based on "matriculation," which seems to cover status as a student, graduate, non-student, or non-graduate); Madison, Wisc., Municipal Code §§ 3.23(2)(hh), 3.23(8)(a) (same as to "the fact that such person is a student").  Cf. Complaint, In re Fair Housing Council of Greater Washington v. Washington City Paper (characterizing housing ads saying "M/F grad student pref." and "HU and UDC students: . . ." as "unlawful preference based on matriculation").

    13.    Conn. Gen. Stat. Ann. § 31-40s (barring discrimination in "terms, conditions or privileges of employment" -- thus including harassing speech -- based on "smoking or using tobacco or tobacco products outside the course of . . . employment"); D.C. Code Ann. § 6-913.3 (same); Ky. Rev. Stat. Ann. § 344.040(1) (same, but also including discrimination and harassment based on being a nonsmoker); La. Rev. Stat. Ann. tit. 23, § 966 (same as Kentucky); R.I. Gen. Laws § 23-20.7.1-1 (same as Connecticut); N.D. Century Code ch. 14-02.4-03 (same as to "participation in lawful activity off the employer's premises during nonworking hours which is not in direct conflict with the essential business-related interests of the employer"); Wisc. Stat. Ann. § 111.322 (same).

    14.    Cincinnati Mun. Code §§ 914-1-A1, -1-D, -5(A) (barring "discriminat[ion] . . . with respect to . . . conditions or privileges of employment" based on, among other things, "Appalachian regional origin").

    15.    Minn. Stat. Ann. § 363.03(2) (barring "discriminat[ion]" with respect to "terms, . . . conditions, . . . or privileges of employment" based on "status with regard to public assistance"); N.D. Century Code ch. 14-02.4-03 (same); Madison, Wisc., Municipal Code §§ 3.23(2)(hh), 3.23(8)(a) (same).

    16.    Ill. Stat. ch. 775 §§ 5/1-103(Q), 5/2-102 (1997) (banning discrimination in "terms, privileges, or conditions of employment" based on "unfavorable discharge from military service"); Madison, Wisc., Municipal Code § 3.23(8)(a) (same, as to "less than honorable discharge").

    17.    See, e.g., FCC v. Pacifica Found., 438 U.S. 726, 744-48 (1978) (plurality opinion) (treating profanity as being of lower value than core protected speech); Young v. American Mini Theatres, Inc., 427 U.S. 50, 63-73 (1976) (plurality opinion) (same as to pornography).  But see R.A.V. v. City of St. Paul, 505 U.S. 377, 390 n.6 (1992) (stressing that these cases "did not command a majority of the Court").

    18.    The definition also does not require that the speech take place in the workplace; even speech outside the workplace can be considered if it creates a hostile environment at work.  See Intlekofer v. Turnage, 973 F.2d 773, 775 (9th Cir. 1992) (relying in part on a coworker "telephoning [Intlekofer] at her home" to support a hostile environment claim); Bersie v. Zycad Corp., 399 N.W.2d 141, 143, 146 (Minn. Ct. App. 1987) (relying in part on a coworker "calling [Bersie] at home" to conclude that plaintiff had made a prima facie showing of harassment, expressly applying Vinson); cf. Bartlett v. United States, 835 F. Supp. 1246, 1262 (E.D. Wash. 1993) (finding that two instances of sexually suggestive conduct, including "[p]laintiff receiv[ing] a sexually explicit card at her home from a coworker," did not rise to the level of sexual harassment, but not even hinting that the card was somehow categorically disqualified because it was received outside the workplace); Myer-Dupuis v. Thomson Newspapers, No. 2:95-CV-133 (W.D. Mich. May 9, 1996), reported in Mich. Law. Wkly., May 27, 1996, at 12A.  These cases are eminently consistent with the harassment definition given by the Supreme Court:  It's quite plausible that speech by coworkers outside the workplace may create a hostile environment within the workplace.

    19.    See Merriex v. Henderson, 2000 WL 683086 (EEOC May 16) (stating that an employer's "obligation to provide a work environment free of discriminatory harassment" requires it to "immediately remove" any "offensive KKK material" that employees possessed").  Cf. In re Office of Federal Contract Compliance Programs v. Cleveland Clinic Found., 1996 WL 400490, *6 n.10 (D.O.L. July 17) (discussing, in the context of a retaliation claim, an employee's complaint that another employee displayed a picture of former Governor George Wallace, and concluding that the complainant's reaction was "not . . . unreasonable").  Cf. also High School Bans Ethnic Clothing, UPI, Mar. 16, 1992, available in LEXIS, News Library, Upstat File (describing a high school that banned David Duke and Malcolm X T-shirts because students were getting so offended that fights would start).  Of course, the standard for evaluating speech restrictions imposed by a public high school is different than when the government is acting as sovereign -- I mention the incident only as an example of the offense that David Duke T-shirts can cause.

    20.    Cf. West v. Derby Unified School Dist. No. 260, 2000 WL 294093 (10th Cir. Mar. 21) (upholding school "racial harassment policy" that defined as harassing "clothing, articles, material, publications or any item that denotes Ku Klux Klan, Aryan Nation--White Supremacy, Black Power, Confederate flags or articles, Neo-Nazi or any other `hate´ group´").

    21.    See Phillip M. Perry, Don't Get Sued for Racial Discrimination, Law Prac. Mgmt., July-Aug. 1996, at 42:

              In [cases of people inadvertently using inappropriate terms], because of the seriousness of the offense discipline might begin with a strong reprimand and a disciplinary suspension.  If an incident occurs again, it may result in termination.

              For acts which are deliberate and offensive, immediate termination may be called for.

              [Carl] Johnson [President of Princeton Employee Relations] gives one example:  "In the Midwest, during the 1988 presidential campaign, a supervisor at one company used the office copy machine to run off some fake applications to join the Jesse Jackson campaign staff.  The application included racist language.  The individual was discharged immediately."

Id. at 46; cf. Defendant Lockheed Technical Operations Company's Motion in Limine to Exclude Any Evidence of Comments Regarding Jesse Jackson, Okoli v. Lockheed Technical Operations Co., Case No. 685-229, Oct. 9, 1992 (describing racial harassment complaint that included, among other things, a charge that an employee -- outside the claimant's hearing -- "referred to Jesse Jackson as a nigger"); Makhayesh v. Great Lakes Steel, No. 91-108394-CZ (Mich. Ct. App. Apr. 10, 1995) (per curiam) (unpublished opinion), discussed infra in text accompanying notes 57-61. Likewise, when several Navy officers, angered by Representative Pat Schroeder's role in the investigation of an earlier Navy sexual harassment scandal, displayed a banner at an on-base officers' party that said "Hickory dickory dock, Pat Schroeder can suck my cock," the Navy characterized this as "sexual harassment."  See Pine, Fiscal Expert Named Acting Navy Secretary, L.A. Times, July 8, 1992, at A4; Aldinger, Officers Suspended in New Navy Sex Incident, Reuters, July 2, 1992, available in LEXIS, Nexis Library, Reuter file; Abrahamson, Two Navy Officers Reassigned in Investigation of Sign at Party, L.A. Times, July 2, 1992, at B8; telephone conversation with Alan Abrahamson, author of the L.A. Times article (July 20, 1992) (quoting a navy source for the exact text of the banner -- the L.A. Times is a family newspaper, after all).

    22.    See also, e.g., Dealing with Harassment at MIT, ch. 2 ("Deliberate desecration of religious articles . . . might be found to be harassment"); Indiana University of Pennsylvania Office of Housing and Residence Life Discipline/Judicial Process, Harassment -- Intolerable Behavior at IUP ("Religious harassment -- behavior that demonstrates intolerance to individuals based on their religious beliefs and practices," including "demeaning jokes").

    23.    Cf. Annette Kolodny, Failing the Future: A Dean Looks at Higher Education in the Twenty-First Century 98-130, especially 105 (1998) (defining "antifeminist intellectual harassment" as including among other things "any . . . statement [that] creates an environment in which the appropriate application of feminist theories or methodologies to research, scholarship, and teaching is devalued [or discouraged]"; the definition covers coworker speech generally, see incident described at pp. 108-09, and not just tenure and promotions policies).

    24.    Deborah Epstein, Can a "Dumb Ass Woman" Achieve Equality in the Workplace? Running the Gauntlet of Hostile Environment Harassing Speech, 84 Geo. L.J. 399, 405 (1996).

    25.    Complaint regarding a painting, done in Impressionist style, that showed a woman with one breast exposed, quoted in Jennifer Goode, It's Art vs. Sexual Harassment, Tennessean, Mar. 1, 1996, at 1A.  The employer took the painting down in response to the complaint, citing as one reason the risk of harassment liability.  Id.  "`Historically, our society thought women should be in the home or in the bedroom, as opposed to in the workplace.  So anything that sends that message´" -- apparently including Impressionist paintings -- "`is a violation´ of federal laws against discrimination."  Catherine Trevison, Court to Decide if Nude is Naughty, Tennessean, Feb. 13, 1997, at 1B (quoting Thomas L. Reed, City Attorney for the employer, the City of Murfreesboro, Tennessee).

              For more on this incident, see infra notes 46 and 48 and accompanying text.

    26.    Brown Transport Corp. v. Commonwealth, 578 A.2d 555, 562 (Pa. Commw. Ct. 1990).  A separate holding of Brown Transport -- relating to the Pennsylvania Human Relations Commission's power to award punitive damages -- was overruled by Hoy v. Angelone, 720 A.2d 745 (Pa. 1998); but Brown Transport's substantive holding that the employer's speech created a hostile environment was not affected by this.

    27.    Hilsman v. Runyon, Appeal Nos. 01945686, 01950499, 1995 WL 217486, at *3 (E.E.O.C. Mar. 31, 1995).  The employer was a public agency, and the prayers might have violated the Establishment Clause, but the decision was in no way based on this.  Nothing in the decision suggests that the result would have been any different had the employer been a private entity; certainly Title VII harassment law operates the same way for private and public employers.

              In another case, Carlson v. Dalton, Appeal No. 01930284, 1994 WL 735488 (E.E.O.C. Apr. 26, 1994), the Commission mentioned that "[i]t is unlikely that a one time offering of a public prayer would violate Title VII unless its content denigrated other religious beliefs or attendance was mandatory."  Id. at *6 n.3.  The pregnant negative is that even a one-time prayer may violate Title VII if its content denigrates other religious beliefs, and that all prayers may violate Title VII if they are more frequent.  Cf. id. at *6 n.8 ("As indicated at footnote 3, nothing in this decision is intended to suggest that a one-time offer of a prayer at a work meeting would rise to the level of hostile environment harassment.").  Cf. Joel Turner, Board OKs Policy on Harassment, Roanoke Times & World News, Sept. 11, 1996, at C3 (discussing an educational harassment policy that defined religious harassment as including "students . . . criticiz[ing] or belittl[ing] other students' forms of religious worship"); Dealing with Harassment at MIT, ch. 2 ("Deliberate desecration of religious articles . . . might be found to be harassment").

    28.    Dean J. Schaner & Melissa M. Erlemeier, When Faith and Work Collide: Defining Standards for Religious Harassment in the Workplace, Employee Rel. L.J., June 1, 1995, at 26.

    29.    The full quote is:

It is one thing [and a lawful thing] to express one's own beliefs; another to disparage the religion or beliefs of others.  In a diverse workforce, this is a critical distinction and is the heart of non-discrimination law. . . .  Thus, a Christian employee would have recourse under Title VII if a "secular humanist" employer engaged in a pattern of ridiculing the employee's religious beliefs.
EEOC Fact Sheet on Proposed Guidelines on Harassment Based on Race, Color, Religion, Sex, National Origin, Age or Disability 1-2 (1993).  This principle would also be applicable to similar ridicule by coworkers -- so long as the employer doesn't stop it when it learns about it -- given that harassment law applies to coworker speech as well as to employer speech.

              Cf. EEOC v. Brady, EEOC No. 01901586, 1990 WL 711538 (finding that religious jokes didn't create a hostile environment because the complainant "was a willing and active participant," but "admonish[ing] the agency that when `employees spend a lot of time exchanging religious jokes' it invites trouble and future complaints. . . .  [W]e may in a future case, with a similar environment, find discrimination"); Me. Hum. Rts. Comm'n Reg. 3.10(g)(1), 3.10(g)(1)(c) ("Unwelcome comments, jokes, acts and other verbal or physical conduct of a religious nature constitute religious harassment when . . . such conduct has the purpose or effect of . . . creating an intimidating, hostile, or offensive working environment").

    30.    In re Sapp's Realty, Inc., Or. Comm'r of Bureau of Labor & Indus., Case No. 11-83, at 47-48, 66-68 (Or. Bureau Labor & Indus. Jan. 31, 1985); Volokh, Freedom of Speech and Workplace Harassment, 39 UCLA L. Rev. 1791, 1804 (1992) (describing the case in more detail); Peck v. Sony Music Corp., 68 Fair Empl. Prac. Cas. (BNA) 1025, 1995 WL 505653 (S.D.N.Y. Aug. 25, 1995); see also Turner v. Barr, 806 F. Supp. 1025, 1028-29 (D.D.C. 1992) (finding anti-Jewish harassment based in part on coworkers' "requir[ing plaintiff] to suffer reference to the Holocaust by one of the supervisory Deputies"; the reference was a rather callous and probably fairly offensive joke making light of the Holocaust, but one that did not involve any overt slurs).

    31.    Tunis v. Corning Glass Works, 747 F. Supp. 951, 959 (S.D.N.Y. 1990), aff'd without opinion, 930 F.2d 910 (2d Cir. 1991).  Though the court ultimately held for the employer, it did so only because the employer took prompt action to remedy the situation.  The case also involved some pinups, and some catcalls and whistles directed at the plaintiff, but the judge specifically mentioned that coworkers' use of gender-based job titles was itself a "discriminatory . . . practice," and strongly implied that an employer that continued to let its employees use gender-based language could be liable.  Id.  See also American Law Institute-American Bar Ass'n Continuing Legal Education, Legal Problems of Museum Administration■Sexual Harassment: Definition, Prevention, and Treatment, C989 ALI-ABA 215 ("Some examples of behaviors that may be sexual harassment are: . . .  Using belittling expressions to refer to women such as . . . `line lady´ instead of `line worker,´ or `janitress' for a female janitor.").

    32.    Kentucky Comm'n on Human Rights, Human Rights Report, Spring 1994, at 2 (stating that "use or distribution of sex-biased signs `can be viewed as perpetuating a discriminatory work environment[,]´ [which] is deemed unlawful under the Kentucky Civil Rights Act"); id. at 2, 6 (describing similar actions taken against three other companies, based on "Men Working" and "Flag Men Ahead" signs); Andrew Wolfson, All Worked Up . . . Phone Company Called to Task over Gender-Biased Signs, Louisville Courier-J., Mar. 3, 1994, at 1B.

    33.    Pakizegi v. First Nat'l Bank, 831 F. Supp. 901, 908 (D. Mass. 1993) (dictum) (also describing this as "discriminatory, anti-Iranian conduct"), aff'd without opinion, 56 F.3d 59 (1st Cir. 1995); cf. William L. Kandel, Current Developments in Employment Litigation; Sexual Harassment: Persistent, Prevalent, but Preventable, Employee Rel. L.J., Winter 1988, at 439, 444 ("A comprehensive sexual harassment policy should thus establish management's strong position against employee conduct that predictably offends members of one sex to a significantly disproportionate degree.  The same prohibitions . . . may be applied to religion, national origin, handicap, and age.").

    34.    EEOC Letter of Determination, Ozawa v. Hyster Co., Charge No. 380863519, at 1-4; Complaint at 3, EEOC v. Hyster Co., No. 88-930-DA (D. Or. filed Aug. 15, 1988) ("On or about April 1, 1984, Hyster Company began a racially objectiona[ble] advertisement campaign.  Subsequently management level personnel used racial slurs at the workplace.  These events created a hostile work environment . . . ."); Hyster, EEOC Settle Lawsuit, UPI, July 5, 1990, available in LEXIS, Nexis Library, Upstat File.

              Cf. Linda K. Wertheimer, Dallas Schools Asked to Drop Indian-Related Mascots, Dallas Morning News, Mar. 27, 1998 (describing school district officials' view that use of school mascots "such as Apaches, Braves or Warriors" "violate[d] a policy on racial and ethnic harassment which prohibits the use of verbal, visual or written displays that offend a race, creed or ethnic group").

    35.    Conciliation Agreement Between the U.S. Department of Labor, Office of Federal Contract Compliance Programs, and The Ohio State University, Sept. 14, 1992.  The requirements involved in this case apply only to federal contractors, but another statute generally bars discrimination by all employers against present or former service members in "any benefit of employment" (which, under the logic of the harassment cases, would include the work environment).  See 38 U.S.C. § 4311.  For more on veteran status harassment, click here.

              Cf. Rutgers, The University's Policy Prohibiting Harassment"> (effective Sept. 1, 1997) (giving "[d]isplay of offensive material or objects" and "[i]n some instances, innuendo or other suggestive, offensive or derogatry comments or jokes about [among other things] veteran status" as examples of potentially prohibited speech).

    36.    Bowman v. Heller, No. CIV.A. 90-3269, 1993 WL 761159, at *2, *13 (Mass. Super. Ct. July 9, 1993), aff'd in part on other grounds, vacated in part, 651 N.E.2d 369 (Mass. 1995).  Though the woman ultimately saw the picture, the offending worker didn't show it to her or post it anywhere where she would see it.  The court awarded the woman $35,000 plus costs and attorney's fees in damages, to be paid personally by the offending employee.  The Massachusetts Supreme Judicial Court reversed the harassment finding on the grounds that Massachusetts law -- unlike federal law and most other state laws -- doesn't bar hostile environment harassment, but prohibited only "threat[s], intimidation, or coercion."  The Court did not quarrel with the lower court's conclusion that such speech would lead to liability under a typical harassment law.

    37.    Advisory Opinion, Cases 27-CA-10941(P), 27-CA-10962(P), 27- CB-2741(P), 27-CB-2744(P), NLRB Off. Gen. Counsel, 1991 NLRB GCM LEXIS 11 (Jan. 31, 1991).  The NLRB held that an employer was allowed to discipline employees who made such statements, because it might otherwise have been liable under Title VII.  Id. at *6-*7.

    38.    Davis v. Monsanto Chem. Co., 858 F.2d 345, 350 (6th Cir. 1988); Andrews v. City of Philadelphia, 895 F.2d 1469, 1486 (3rd Cir. 1990).  See also ERIC Clearinghouse on Higher Education (funded by the U.S. Department of Education), Sexual Harassment in Higher Education from Conflict to Community (no date) ("[S]exually harassing behavior includes . . . sexist statements and behavior that convey insulting, degrading, or sexist attitudes").

    39.    Dernovich v. City of Great Falls, Mont. Hum. Rts. Comm'n No. 9401006004 (Nov. 28, 1995).  See also Mont. Hum. Rts. Comm'n, Model Equal Employment Opportunity Policy: A Guide for Employers (no date) ("Examples of prohibited sexual harassment include, but are not limited to: . . .  Repeated sexual jokes, innuendos, or comments . . . .  Displays of magazines, books, or pictures with a sexual connotation"); Iowa Civil Rights Commission, Sexual Harassment in the Workplace: It's Against the Law (giving "jokes of a sexual nature" and "cartoons, drawings, or caricatures of a sexual nature" as examples of a potentially harassing action); American Law Institute-American Bar Ass'n Continuing Legal Education, Legal Problems of Museum Administration -- Sexual Harassment: Definition, Prevention, and Treatment, C989 ALI-ABA 215 ("Some examples of behaviors that may be sexual harassment are: . . .  Coffee mugs with sexual pictures or words on them . . . .  Telling dirty jokes or stories . . . ."); Robert D. Lee & Paul S. Greenlaw, The Legal Evolution of Sexual Harassment, Pub. Admin. Rev., July/Aug. 1995, at 357 ("Instances [of harassment] can include . . . E-mail messages of a sexual nature broadcast to employees, and employee clothing, such as tee shirts, with sexual drawings or slogans."); When a Joke is a Crime, Christian Science Monitor, Mar. 2, 1998, at B5 ("repeated instances" of "using e-mail to send sexual jokes to other staff members" could be harassment; so could "[A] male and a female co-worker repeatedly talk[ing] about their respective sexual affairs and relationships during break around the office coffee pot . . . if a passerby finds it offensive").

    40.    Cardin v. Via Tropical Fruits, Inc., No. 88-14201, 1993 U.S. Dist. LEXIS 16302, at *24-25 & n.4 (S.D. Fla. July 9, 1993).

    41.    Id. at *45.  See also Jenson v. Eveleth Taconite Co., 824 F. Supp. 847, 880 (D. Minn. 1993) (citations omitted):

The posting of sexually-oriented materials in common areas may serve as evidence of a hostile environment.  This is true regardless of whether the visual materials relate to men or women, or both, generally, or to specific women. . . .  [V]isual materials of a sexual nature, regardless of their gender orientation, may form the basis for claims to hostile environment:  "any reasonable person would have to regard [such materials] as highly offensive to a woman who seeks to deal with her fellow employees and clients with professional dignity and with the barrier of sexual differentiation and abuse."
See also Hwu v. Chai Kosher, 1992 WL 814983, complaint no. EM01798 (N.Y.C. Comm'n Hum. Rts. July 12) ("The male workers and owners' sexually explicit comments about oral sex may not have originated with the intent to offend women in the workplace, but clearly had a disproportionately demeaning impact on Hwu -- particularly since Hwu was the only female working in the back room"); Huffman v. City of Prairie Village, 980 F. Supp. 1192 *4 (D. Kan. 1997) ("Finally we turn to the jokes and sexual comments.  It is well settled that verbal harassment alone can produce a sexually hostile environment."); Is a Wink as Bad as a Nod?, Boston Herald, Apr. 5, 1998, at 8 ("DON'T EVER (the clear cases) . . .  The following are likely to be interpreted as sexual harassment, according to the Quincy law firm of Murphy, Hesse, Toomey and Lehane . . .  Sexual epithets or jokes . . .  Displaying sexually suggestive objects, pictures or cartoons").

    42.    Cardin, 1993 U.S. Dist LEXIS 16302, at *61. 

See also Garber v. City of Minneapolis, No. MDCR-91262-EM-7, at 1, 4, 19 (Minneapolis Comm'n on Civ. Rts. July 31, 1996) (finding a hostile environment based in large part -- though not entirely -- on a supervisor's telling "dirty jokes" in complainant's presence and making "sexist and degrading remarks about Complainant and other women in her presence," including referring to his wife as a "fat bitch" and a "fat broad" in telephone conversations); Marr v. Widnall, Appeal No. 01941344, 1996 WL 375789, *8 (E.E.O.C. June 27, 1996) (finding a hostile environment based on a "continuous barrage of patently offensive sexist, racist, and sexual verbal jokes, slurs, comments and physical gestures"); Complaint at 3, 11, Larson v. University of Colo., No. 94-M-1358 (D. Colo. 1994) (listing as alleged harassment, among other things, various "written statements, rife with innuendo, sexual connotation, or comments hostile to women in the sciences," and "comments that were hostile to women scientists such as, `The top 10 reasons students love [the university department]: "Money for Nothing and Chicks for Free" [a line from a classic Dire Straits song]´"); Nurses Sue Ex-Boss over Bawdy Jokes, S.F. Chron., Mar. 31, 1993, at A19 (two female ex-nurses sued, "claiming the bawdy jokes told by another female nurse amounted to sexual harassment").

              Cf. Stephen Henderson, America Re-Examines the Issues, Chi. Trib., May 23, 1996, at 1:

[T]elling dirty jokes in the presence of a female employee [even when the jokes are not directed at her] . . . "is an example of `hostile environment´ sexual harassment. . . .  The legal thinking behind `hostile environment´ harassment is that people should be able to arrive at work, do their job and go home without having to hear jokes, stories or comments of a sexual nature."
Id. (quoting Monica Ballard).  Ms. Ballard is a professional sexual harassment training provider and the author of "six textbooks on prevention of sexual harassment."  Stephen Henderson, Where Do You Draw the Line? Questionnaire Results, Chi. Trib., May 23, 1996, at 1.

    43.    Rippey v. Danzig, appeal no. 01983065, 1999 WL 302415, *2 (Apr. 27).

    44.    See Attachment to Letter from Barbara K. Gargus, HRO New Orleans Memphis Field Office to Kevin Gerson, UCLA Law Library, Nov. 26, 1999 (on file with the author).

    45.    Olivant v. Department of Environmental Protection, 1999 WL 450427 (N.J. Adm. Apr. 12).  The administrative law judge specifically held that the speech fit the legal definition of generally actionable sexual harassment, citing N.J. Admin. Code 4A:7-11, which is directly parallel to the general sexual harassment regulations that govern speech in all workplaces, public and private.  Though this case involved the government acting as employer (where I agree the government has broad power over offensive speech by its employees), its holding that the speech constituted "sexual harassment" under the general definition would thus be applicable to private workplaces as well as public ones.

              See also Hackman v. Henderson, 2000 WL 310641 (E.E.O.C. Mar. 16), finding a hostile environment based on a variety of sexually themed jokes, banter, and innuendo, even though "the offensive language and conduct was not directed at complainant," on the grounds that "it is sufficient if the complainant demonstrates that the environment is offensive."  Id. at *3.

    46.    U.S. Dep't of Labor, Sexual Harassment: Know Your Rights (1994).  The pamphlet does say that "[s]exual harassment is illegal if . . . [t]he harassment is making it hard for you to work," seemingly an attempt to echo part of the hostile environment requirement, but it's easy to imagine a situation where relatively innocent sexual jokes can make it hard for someone to work: for instance, if the person was raised to disapprove of any sexual jokes or discussions, whether insulting or not.

              One could criticize the Department's definition of harassment here and argue that no court would define harassment this broadly.  Still, the Cardin court seemed willing to take quite a broad view of what the law forbids, and the judgment of the U.S. Department of Labor is certainly some evidence of what other parts of the federal government -- such as the judiciary -- might say.

              Cf. AETC Has No Tolerance for Discrimination, Harassment, FDCH Federal Department and Agency Documents, Dec. 2, 1997 (describing finding that "jokes of a sexual nature [sent] through official Air Force e-mail that were offensive, disrespectful, and degrading" constituted sexual harassment; the press release does not suggest that the Air Force harassment standards differ from those of harassment law, and specifically speaks about "unlawful . . . harassment").

    47.    The example begins, "Everyone has the right to live, work and play free from discrimination," and then gives three examples:

              -- the 55 year old male who was fired by the newly hired manager saying, "You're too old for this job."

              -- the secretary who was frequently told sexual jokes by her co-workers and supervisor.

              -- the wheelchair user who had to pay a higher cab fare to carry his wheelchair.

Seattle Human Rights Dep't, Building for Equality 1 (1996).  The first and the third examples refer to clearly illegal conduct; the Seattle Human Rights Department must believe the second is equally clear.  See also Maryland Commission on Human Relations, Sexual Harassment in the Workplace Is . . . (1991) ("You have been a victim if you have experienced any of the following on the job: . . . Required to listen to sexually suggestive jokes and remarks . . .").

              See also State of Wisconsin Dep't of Workforce Development, Harassment in the Workplace, pamphlet #ERD-7334-P ("Examples of behaviors that can create a hostile environment . . .  Sexual jokes"); id. ("Example [of sexual harassment]: A newly hired machine operator is told that sexual jokes, touching and nude posters are just part of factory life and she should try to ignore it").

    48.    The policy describes this as "illegal" behavior, and explicitly covers "any unwelcome action" with no requirement of pervasiveness.  Town of Hanson, Massachusetts Board of Selectmen, Policy Statement: Sexual Harassment is Unacceptable Conduct in the Workplace and Will not Be Condoned or Tolerated, Nov. 1997.  See also Leavenworth, Kansas city policy.

    49.    See, e.g., Genevieve Buck, Sexual Harassment Rulings Hit Close to Home, Chi. Trib., July 17, 1998, at C5 ("Get an anti-harassment policy in place.  Specify what conduct is unacceptable, including posters, pictures, gestures, blond jokes . . . ."); Carol Teegardin, How to Deal with Sexual Harassment, The Record (Bergen County), Oct. 26, 1998, at H6 (interview with Sue Ellen Eisenberg, a sexual harassment lawyer who had earlier participated in drafting the federal sexual harassment guidelines) (giving as example of sexual harassment "[d]umb-blond jokes[, which] characterize women as being stupid and inferior").  Cf. Spaulding v. West, 1998 WL 745717 (EEOC Oct. 16) (describing harassment claim brought based on three statements, including a blond joke; concluding that three statements in five years isn't enough for a harassment claim, but stressing that the employer "took immediate action to prevent the reoccur[e]nce of and to mitigate the impact of the alleged incidents," and that the EEOC "does not condone the several incidents cited by appellant"); Rick Anderson, 'No Blonde Jokes', Seattle Weekly, June 3, 1999, at 7 (describing harassment complaints against a police detective based in part on his having made blonde jokes, and quoting a commander saying that "I don't think . . . a dumb-blonde joke, for one[,] is appropriate no matter what it is . . . we are getting to a point now that if you are smart, you don't tell jokes.").

    50.    Hector. D. Cantu, Something Funny About 'Mary'? Zip Your Lips, Dallas Morning News, July 24, 1998, at 1C.

    51.    See, e.g., Carol Smith, Sexual Harassment Arena Is Broadened, Binding Employers, Seattle Post-Intelligencer, Oct. 30, 1998, at B1 ("[I]s it sexual harassment when employees are sitting around talking about the Starr Report and making jokes about cigars? The answer is, `It depends.´"); Leslie Taylor, The Starr Report and Office Politics, Roanoke TImes & World News, Sept. 24, 1998 ("[I]n a working world where discussing a racy Seinfeld episode can be grounds for firing, it's best to choose carefully who you share your remarks, your jokes, with, said Gloria Elliott, a Roanoke business consultant.  `Attorneys warn us about a toxic work environment, one that might be sexually harassing,´ she said.  Office humor in particular `is always quicksand,´ Elliott said."); Diane Sears Campbell, Don't Cause a Scandal -- Be Careful What You Say, Orlando Sentinel, Sept. 23, 1998, at E4 ("Sexually explicit discussions, comments, jokes and gestures that could be perceived by a co-worker to be offensive can lead to a harassment claim, attorneys say.  Here's the word from John Finnigan and Aaron Zandy[, Orlando attorneys]:  `Workplace discussions that are sexually graphic or explicit about the Starr report and Clinton/Lewinsky matter are no different than any other workplace discussions of a sexual nature that are now inappropriate in the workplace and ought to be avoided.´"); L.M. Sixel, Scandal Sapping Sensitivity at Office, Houston Chron., Sept. 18, 1998 ("When exactly does the rehashing of cigar sex and hallway encounters rise to the level of a hostile work environment? . . .  That hinges on whether a reasonable person would find the conversation offensive [and pervasive], said Gerald Holtzman, [a Houston] employment lawyer . . . .  There's no right to talk offensively just because it's a public issue."); Yochi Dreazen, Talking About Sex; Where Do You Draw the Line in the Office?, Houston Chron., July 26, 1998, at A2:

For Monica Ballard, whose Santa Monica-based Parallax Education company counts Burger King, Kraft Foods and Exxon among its clients, the tension between a popular culture that encourages talk about sex and a workplace mentality that seeks to restrict it was driven home in the first days of the Lewinsky scandal.

              "We had quite a few clients calling us when Lewinsky jokes, some of which were quite graphic, were making the rounds," she said.  "People think that if they hear something on TV or the radio they can say it at work.  But that of course is not the case."

              Fears of lawsuits from such seemingly casual remarks are forcing companies to `strike a difficult balance between teaching employees what is and isn't OK without over-regulating things and making the office an uncomfortable place to be,´ said Barry Lawrence, a spokesman for the Society for Human Resource Management, the nation's largest association of personnel manager.

    52.    2000 WL 272263, at *1, *3, *5-*7 (6th Cir. Mar. 14).  The award was based only in part on the music and the videos, but it seems clear from the court's opinion that this speech formed a significant part of the basis for the award -- the court mentions these incidents five times, and discusses them in some detail.  Click here for an explanation of while liability based even in part on constitutionally protected speech triggers First Amendment scrutiny.

    53.    Robinson v. Jacksonville Shipyards, Inc., 760 F. Supp. 1486, 1542 (M.D. Fla. 1991).

    54.    1999 U.S. Dist. LEXIS 16066.

    55.    Schwapp v. Town of Avon, 118 F.3d 106, 111-12 (2nd Cir. 1997).  See also Robinson v. Jacksonville Shipyards, Inc., 760 F. Supp. 1486, 1499 (M.D. Fla. 1486) ("The perception that the work environment is hostile can be influenced by the treatment of other persons of a plaintiff's protected class, even if that treatment is learned second-hand."); Dortz v. City of New York, 904 F. Supp. 127, 150 (S.D.N.Y. 1995) ("offensive statements made . . . outside of Plaintiff's presence, may also be viewed by a factfinder as having contributed to creating a hostile environment"); Barbetta v. Chelawn Services Corp., 669 F. Supp. 569, 572 (W.D.N.Y. 1987); Sims v. Montgomery County Comm'n, 766 F. Supp. 1052 (M.D. Ala. 1990):

The department argues that [some uses of the word `nigger'] were made between white officers only.  This argument not only misses the point, it reflects a total insensitivty to jsut how demeaning and insulting therm `nigger´ is . . . when black officers hear second-hand that a white officer whom they know and should respect has used the term on the job.  Indeed, with this argument, the department fails to appreciate that racial ahrassment in the department can never be adequately redressed until all officers, in both their private and public comments at work, come to denounce the term.
See also Chambers v. American Trans Air, Inc., 17 F.3d 998, 1004-05 (7th Cir. 1994) (stating that allegation that "females, including those in management, were routinely referred to in vulgar sexist language in their absence, by the highest levels of management" may constitute sexual harassment, though concluding that plaintiff had procedurally waived this claim); Beyda v. City of Los Angeles, 76 Cal. Rptr. 2d 547, 551-52 (Ct. App. 1998) ("[P]ersonal observation is not the only way that a person can perceive, and be affected by, harassing conduct in the workplace.  One can also be affected by knowledge of that harassment").  But see Keenan v. Allan, 889 F. Supp. 1320, 1374-75 & n.68 (1995) (concluding that plaintiff "cannot rely on statements made to others, especially non-employees, to defeat summary judgment," in part because "The Constitution is far better served by permitting unneighborliness, in the pursuit of free expression, than it is by outlawing it and rendering every working citizen mute"); cf. Gleason v. Mesirow Financial, Inc., 1995 WL 561039, *6 n.11 (N.D. Ill.) ("hearing about comments directed toward others may still result in the plaintiff's experiencing a hostile work environment, [but] such secondhand observations have an emotional impact which ordinary is less than the firsthand experiences of a direct target").

    56.    See Taylor v. Metzger, 152 N.J. 490 (single racial slur); MCAD v. Aramark Corp., 2003 WL 22849909, *8 (Mass. Comm'n Against Disc. 2003) (same); MCAD v. Elite Protective Servs., 2002 WL 31318604, *5 (Mass. Comm'n Against Disc. 2002) (same); Leonard v. Metropolitan Life Insurance Co., 318 N.J. Super. 337 (App. Div. 1999) (two remarks about plaintiff's diabetes); Reid v. O'Leary, No. CIV. A. 96-401, 1996 WL 411494 (D.D.C. July 15, 1996) (single epithet); Yabuki v. Department of the Army, EEOC Req. No. 05920778 (June 4, 1993) (single incident containing a personal abusive statement and a negative comment concerning Japanese people); Nguyen v. Runyon, EEOC Appeal No. 01963721, 1997 WL 40256 (Jan. 22, 1997) (single incident of "supervisor [speaking to plaintiff] in a disrespectful manner, ma[king] threatening gestures and insult[ing] him by using racial slurs in front of co-workers"); Gamboa v. United States Postal Service, EEOC Request No. 05890633 (Aug. 31, 1989) (single incident in which hearing-disabled complainant asked a supervisor who was speaking to move so she could read his lips, and the supervisor responded by "harshly order[ing complainant] to move to another area" and then "told her to move again," which led complainant to feel humiliated); Daniels v. Essex Group, Inc., 937 F.2d 1264, 1274 n.4 (7th Cir. 1991) (stating that a single instance of racial harassment can be "severe or pervasive" enough).  See also Maxine H. Neuhauser & Mark D. Lurie, Extending the Scope of the Law Against Discrimination, N.J.L.J., June 7, 1999, at 32 ("Even one angry outburst, ill-advised joke or insensitive comment holds the potential for litigation liability [under New Jersey law].").

    57.    1999 WL 333406 (1st Cir. May 12).

    58.    See, e.g., DeAngelis v. El Paso Mun. Police Officers' Ass'n, 51 F.3d 591 (5th Cir. 1995) (finding that about a dozen sexist statements in a newsletter over three years wasn't "severe or pervasive" enough); McCray v. DPC Indus., Inc., 942 F. Supp. 288, 293 (E.D. Tex. 1996) (sporadic racial slurs not "severe or pervasive" enough), aff'd, 58 F.3d 640 (5th Cir. 1995).

    59.    Deborah Epstein, Can a "Dumb Ass Woman" Achieve Equality in the Workplace? Running the Gauntlet of Hostile Environment Harassing Speech, 84 Geo. L.J. 399, 417-18 (1996).  Of course, in each case the speech also had to create a hostile environment for the plaintiff, but nothing in those cases suggests that the plaintiffs were insincere in claiming that the speech did create a hostile environment for them.

    60.    Consider Iannone v. Frederic R. Harris, Inc., 941 F. Supp. 403 (S.D.N.Y. 1996), an opinion that begins with the line, "Obscenity, like beauty, is often in the eye of the beholder."  Id. at 407.  Defendant's chief executive officer asked Iannone, the manager of the graphics department, to reproduce, for a training presentation, a photograph (originally taken from Playboy) "depict[ing] the face and bare shoulder of a woman who appears to be removing a jacket"; the photograph had a picture of a naked woman on the reverse side.  Iannone complained about the assignment, and was fired three months later.

              Iannone lost at trial on her hostile environment harassment claim but won on her claim that her firing was in retaliation for her complaint; to win on that claim, she had to show that she "reasonably believe[d]" that the conduct of which she complained was harassment.  Id. at 408.  The court upheld both aspects of the jury verdict:  It agreed that the photograph wasn't harassment and "would stir an extreme reaction only in `a woman of Victorian delicacy.´" Id. at 411.  Nonetheless, it "was not unreasonable" for plaintiff to believe the photograph was harassment, because "[t]he photograph did, after all, come from an erotic magazine and was intended to be sexually suggestive.  A nude woman was depicted on the reverse side.  Moreover, [plaintiff] was not alone in her reaction; other women on her staff were offended as well."  Id.

    61.    See, e.g., Gallagher v. Delaney, 139 F.3d 338, 347 (2nd Cir. 1998) (even though it was "doubtful that the allegations rise to the level of a hostile work environment . . . reasonable jurors might disagree"; because "an Article III judge is not a hierophant of social graces[, e]valuation of ambiguous acts such as those revealed by the potential evidence in this case presents an issue for the jury").

    62.    NAACP v. Button, 371 U.S. 415, 437 (1963).

    63.    Bissell v. Kaleidoscope, Inc., charge no. 1987CF3584, 1991 WL 698599 (Ill. Hum. Rts. Comm'n):

Mr. McNeal denies that he harassed the complainant about her religion, but admits that he talked with her about her religion at length.  According to McNeal, the conversations were about general religious concepts. . . .  Based upon the evidence in the investigative record, it is possible to conclude that Mr. McNeal had harassed the complainant about her religion. . . . This is not to say that Mr. McNeal did harass the complainant.  But, one person's "discussion" may be another person's "harassment."
Id. at *1-2.  In this case, unlike the others I discuss, the alleged harassment was used only as evidence of discriminatory motive, not as a basis for liability in itself; still, the assertion that "one person's `discussion´ may be another person's `harassment´" strikes me as instructive.

    64.    The First Amendment restraints on the government acting as employer might in some measure limit the temptation for government employers to suppress.  On the other hand, even government employers have a great deal of flexibility in restricting their employees' speech, see Connick v. Myers, 461 U.S. 138 (1983), and private employers have largely unlimited flexibility.

    65.    Mark I. Schickman, Sexual Harassment: The Employer's Role in Prevention, Compleat Lawyer, Winter 1996, at 24-25, 28.  The author is a partner in a labor and employment law firm, chair of the ABA General Practice Section's Labor and Employment Law Committee, and president-elect of the Bar Association of San Francisco.  The article is not a criticism of existing harassment law, but is meant to be objective advice to other employment lawyers.  See also William L. Kandel, Current Developments in Employment Litigation; Sexual Harassment: Persistent, Prevalent, but Preventable, Employee Rel. L.J., Winter 1988, at 442 ("The affirmative employer will benefit from a written antiharassment policy that is stronger than the law requires, [both because harassment can] harm productivity [and because it can] jeopardize government contracts, and spawn expensive litigation.").

    66.    Baggett v. Bullitt, 377 U.S. 360, 372 (1964) (citation omitted).

    67.    Cf., e.g., Baggett, 377 U.S. at 371-73 (listing, in the course of concluding that a loyalty oath was unconstitutionally vague, the possible ways a conscientious oathtaker might broadly interpret an oath); New York Times Co. v. Sullivan, 376 U.S. 254, 279 (1964) (concluding that the practical reach of a libel law extended not just to false statements but also to true ones, because "would-be critics of official conduct may be deterred from voicing their criticism, even though it is believed to be true and even though it is in fact true, because of doubt whether it can be proved in court or fear of the expense of having to do so.  They tend to make only statements which `steer far wider of the unlawful zone´").

    68.    117 S. Ct. 2329, 2344-46 (1997).  Likewise, Schenck v. Pro-CHoice Network, 1997 WL 65718, pointed to "the lack of certainty" in an injunction as "lead[ing] to a substantial risk that much more speech will be burdened than the injunction by its terms prohibits."

    69.    Deborah Epstein, Can a "Dumb Ass Woman" Achieve Equality in the Workplace? Running the Gauntlet of Hostile Environment Harassing Speech, 84 Geo. L.J. 399, 419-20 (1996).

    70.    I assume this because otherwise the policy wouldn't do much good in protecting the employer.

    71.    Of course, the First Amendment doesn't stop private employers from implementing such policies on their own; such a private restriction wouldn't involve any state action.  But state action is clearly present when the government threatens an employer with legal liability unless the employer restricts its employees' speech. click 

              Some have argued that, because speech in private workplaces is already regulated by the employers, it's no big deal for the government to step in and regulate further.  This approach seems to me to be unsound.  Speech in many places is already regulated by private parties -- private newspapers may dictate the control of their columnists' writings, private commercial landlords may refuse to rent to the Communist Party or the Nazi Party, and private householders may kick out guests who insult other guests -- but in none of these cases does it follow that the government ought to be allowed to impose similar restrictions as sovereign.

              In any event, though, this article focuses not on whether harassment law is a permissible speech restriction, but rather on exactly what speech harassment law potentially restricts.  The answer to this latter question is independent of whether we think workplace speech should be subject to government regulation to a greater degree than speech in other places.

    72.    Deborah Epstein, Can a "Dumb Ass Woman" Achieve Equality in the Workplace? Running the Gauntlet of Hostile Environment Harassing Speech, 84 Geo. L.J. 399, 418 (1996).

    73.    Professor Epstein points out that Title VII's ban on discriminatory conduct may itself sometimes chill speech:  Because employers know that supervisors' prejudiced statements may be used as evidence of discriminatory intent, they "have an incentive to censor their workers' gender-based speech to eliminate potential complainants' principal source of proof of illegal intent."  Id. at 419.  From this, she concludes that

[e]ven if we assume that employers are engaging in some degree of overregulation of employee speech, the problem cannot be resolved by modifying or eliminating hostile environment harassment law . . . .  [R]etaining a cause of action for verbal hostile environment harassment does little to change this [chilling effect].
Id.  Harassment law, though, covers much more speech than the kind that's likely to be used as evidence of discriminatory animus in employment decisions.  Most significantly, harassment law restricts all employees; discriminatory animus can generally be proved only through the speech of the supervisors involved in the employment decision.  Also, harassment law restricts a good deal of speech that probably wouldn't be admissible to show intent in discriminatory conduct cases.  It seems unlikely, for instance, that a court would admit evidence of sexually themed jokes or sexually suggestive pictures (either Playboys or Gauguins) to show that management was motivated by animus when firing an employee.  cf. Cone v. Longmont United Hosp. Ass'n, 14 F.3d 526, 531 (10th Cir. 1994) (even overtly prejudiced statements are insufficient to show animus if there's no showing of a "nexus . . . between these allegedly discriminatory statements and the [employment] decision"); Fuka v. Thompson Consumer Elecs., 82 F.3d 1397, 1403 (7th Cir. 1996) (same).  The universe of speech chilled by harassment law is considerably greater than that chilled by restrictions on discriminatory employment decisions.

              But beyond this, the fact that we must tolerate some chilling of speech doesn't demonstrate that we should tolerate more.  Existing public figure libel law, for instance, chills some speech despite the "actual malice" requirement: a publisher might be reluctant to publish something because it might be used as indirect evidence of knowing falsehood or reckless disregard for the truth.  Does it follow that we might as well eliminate the actual malice requirement because one way or another "[t]he potential for chilling expression . . . would still exist," Epstein, supra, at 419?  Surely not.

    74.    Maryland Commission on Human Relations, Preventing Sexual Harassment: A Fact Sheet for Employees (1994).

    75.   

    76.    Phillip M. Perry, Avoid Costly Lawsuits for Sexual Harassment, Law Prac. Mgmt., Apr. 1992, at 18; see also Barry A. Hartstein & Thomas M. Wilde, The Broadening Scope of Harassment in the Workplace, Employee Rel. L.J., Mar. 22, 1994, at 639 (providing a similarly broad sample policy); Lois C. Schlissel (Meyer, Souzzi, English & Klein), What Is Sexual Harassment? -- An Overview (because "the presence in the work place of sexually oriented calendars, pictures and magazines . . . is a factor which courts often have considered in determining whether an employer is liable, it would make sense for all employers to inspect their work places carefully for pornographic material and to remove any potentially offensive material found on walls or otherwise on public display") (emphasis in original).

              Most of these examples involve sexual harassment; because there's been much less talk about racial, religious, and national origin harassment in recent years, many lawyers have concentrated more on providing advice on sexual harassment policies.  But presumably an employer would also need similar policies for the other forms of harassment, of course changed to focus on religiously, ethnically, or racially offensive material.  Certainly the question discussed in this Section -- whether the prohibition on severe or pervasive offensive speech inherently turns into restrictions on even isolated statements -- is the same for all forms of harassment.  Cf. Phillip M. Perry, Don't Get Sued for Racial Discrimination, Law Prac. Mgmt., July-Aug. 1996, at 46 ("`If anyone inadvertently uses [a racially] inappropriate term, . . .´ . . . because of the seriousness of the offense discipline might begin with a strong reprimand and a disciplinary suspension.  If an incident occurs again, it may result in termination." (quoting Garen E. Dodge, an employment lawyer)); Susan S. Sauntry, When God Enters the Office, Legal Times, June 10, 1996, at S36 (part of Special Report on Labor and Employment Law) ("Most employers have a policy against sexual harassment and are aware that they must address complaints of sexual harassment.  But many do not treat allegations of religious harassment with the same level of concern.  An employer would be well-advised to review its policies and make provisions to allow an employee to complain of religious harassment . . . .").

    77.    Geanne P. Rosenberg, Watch What You Say, or Be Ready to Pay, Investor's Bus. Daily, Nov. 6, 1996, at A1.  See also Anne Ciesla Bancroft, Sexual Harassment Redefined: Beyond Pin-Ups, Pinching, Propositions, Metropolitan Corporate Counsel, May 1997, at 5 ("Do's and Don'ts . . .  It is clear that sexual harassment will encompass an expanding sphere of conduct.  What can an employer do to protect itself?  . . .  Audit the workplace.  Make sure the environment is free from offensive pictures and comments.  Check with supervisors regarding complaints and even rumors.").

    78.    Sue Morem, Telling Jokes in the Workplace Can Be Dangerous, Minneapolis Star Trib., Feb. 4, 1997, at 2D.  See also Steve Wilson, Not Sure What Constitutes Sexual Harassment? Take a Look, Ariz. Republic, Apr. 15, 1994, at A2; see also National Ass'n of Mfrs., Sexual Harassment: How to Develop and Implement Effective Policies 32 (1987) ("[Q:] How should I counsel my subordinates on the difference between `acceptable kidding´ and `harassment?´ [A:] We should use the common sense approach.  Dirty jokes . . . have the potential of being offensive and, thus, are improper."); Mary McGarry, Defining Sexual Harassment in the Workplace; Behaviors That Are Inappropriate, Legal Intelligencer, May 22, 1996, at 7 ("Various Behaviors Are Harassment . . .  Referring to an adult as girl, hunk, doll, babe or honey. . . .  Telling sexual jokes or stories."); A Needed Reminder in the Mail; In Wake of Harassment Allegations, O.C. Employees Get Guidelines, June 29, 1997, L.A. Times, at B6 ("The county's guidelines say all employees should refrain from `making unwanted sexual advances' or creating an `intimidating, hostile and offensive´ work environment.  That should be clear enough for the most obtuse.  If there's any doubt in someone's mind whether a remark or touch is appropriate, the words should be unspoken, the gesture not made.").

    79.    Dean J. Schaner & Melissa M. Erlemeier, When Faith and Work Collide: Defining Standards for Religious Harassment in the Workplace, Employee Rel. L.J., June 1, 1995, at 7.  See also Russell Shaw, Cyberspace Conduct: What's Your Policy?, Investor's Business Daily, Nov. 18, 1997, at A1 (beginning by an example of "access [to] an X-rated Web site" leading to "threat[ of] a lawsuit for sexual harassment," and going on to say that "As you draft policies for Internet usage, experts recommend cautioning employees against . . . [c]licking to sites known for explicit sexual content or extreme views likely to be insulting to various racial or religious groups").

    80.    Daryl Strickland, Board Game Helps Workers Learn Do's, Don'ts of Sexual Harassment, Seattle Times, Mar. 1, 1996, at E1 (describing and quoting from the game).  The game sells to employers for $600 for five copies.

              Some commentators have explicitly suggested that workers follow the "mother/sister/daughter test":  Would one say the same things to one's mother, sister, or daughter?  See, e.g., State of Wisconsin Dep't of Workforce Development, Harassment in the Workplace, pamhplet #ERD-7334-P ("WHEN IN DOUBT ABOUT SEXUAL HARASSMENT! . . . Ask yourself -- Would you say or do it in front of your spouse, parent or close friend?"); Dana Coleman & Rocco Cammarere, New Jersey Ahead of U.S. in Sex Harassment Rules, N.J. Law., Nov. 15, 1993, at 1, 16 ("[The harassment law test is] not that mysterious.  Don't say anything you wouldn't say to your mother.") (quoting lawyer Nancy Smith); Patricia G. Miller, Power, Not Sex, Often at Core of Sexual Harassment, Pitt. Post-Gazette, Jan. 15, 1995, at L2 (article starts with "Let's talk about sexual harassment -- both what it is and how to avoid it" and ends with "Would you feel comfortable having a man make the particular remark you are considering to your mother, sister, or daughter?  If the answer is `no,´ your remark is best left unsaid.").  If taken seriously, such a focus on mothers, sisters, and daughters -- those most desexualized of women -- would mean a prohibition on any sort of sexually suggestive workplace speech, even fairly innocent joking.  I thank Cathy Young for alerting me to this point.  See Cathy Young, The New Madonna/Whore Syndrome: Feminism, Sexuality, and Sexual Harassment, 38 N.Y.L. Sch. L. Rev. 257, 278 (1993).

    81.    Practicing Law Institute, Sample Sexual Harassment Policies, in Sexual Harrassment Litigation 431 (PLI Litig. & Admin. Practice Course Handbook Series No. H4-5222, 1995) (available on WESTLAW).

    82.    Id. at 433-34, 438, 445-46, 454.  All four policies also prohibit a good deal of other conduct, from physical abuse to one-on-one insults, which I agree can and should be prohibited.  I mention here the prohibitions that strike me as the most troubling.

              Consider also the following "Sample E-mail Policy Outline and Content":

The Corporation's e-mail system may not contain messages having language or images that may be reasonably considered offensive, demeaning, or disruptive to any employee, or creates [sic] a discriminatorily hostile or abusive work environment.  Such e-mail message content would include, but would not be limited to: sexually-explicit comments or images, gender-specific comments, racial epithets and slurs, or any comments or images that would offend someone based on their race, color, sex, religion, national origin, age, physical or mental disability, status as a veteran, or sexual orientation.
E-Mail Maledicta, in Computing & Communications: Law & Protection Report (Assets Protection Publishing 1995).  The policy is aimed at avoiding liability for defamation, discrimination, invasion of privacy, and negligence as well as harassment, but this particular portion seems to be justified precisely by a concern about harassment liability.  See also Parry Aftab, A Carefully Planned E-Mail Policy Is the Best Defense in a Litigation, N.Y. L.J., July 2, 1996, at 5 (noting that because "an employer could be held liable for . . . improper uses of E-mail[,]" an e-mail policy "should set out the rules . . . and the `do nots': no offensive material, racial or ethnic slurs, off-taste comments, nothing illegal, etc."); cf. Reader's Corner, Corp. Legal Times, Dec. 1995, at 47 (describing E-Mail Maledicta).

    83.    See also Ralph H. Baxter, Jr. & Lynne C. Hermle, Sexual Harrassment in the Workplace: Guide to the Law, app. F, at 185-89 (1994) (proposing two similarly broad sexual harassment policies); id. at 96 (section entitled "Educating Supervisors and Employees":  "We strongly recommend that employers educate supervisors regarding sexual harassment issues.  The training will allow supervisors to be alert to inappropriate workplace action (including the posting of offensive posters or pictures, and the telling of offensive jokes or stories) and to take swift preventive measures.").

    84.    EEOC, Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors pt. V.C.1.a (following footnote reference 58) (June 18, 1999) (emphasis added).  Note that, despite the name of the document, this advice applies to potentially harassing speech by anyone, not just by supervisors; in the paragraph before the line that I quote, the guideline says that "An employer's policy should make clear that it will not tolerate harassment based on [the prohibited bases.] This prohibition should cover harassment by anyone in the workplace -- supervisors, co-workers, or non-employees" (emphasis in original). n               See also EEOC, Questions & Answers for Small Employers on Employer Liability for Harassment by Supervisors ¶ 13 ("if there is graffiti in the workplace containing racial or sexual epithets, management should not wait for a complaint before erasing it").

    85.    Consider the City of Tacoma Personnel Management Policy on Harrassment Guidelines (1996):

Definition of Sexual Harassment
. . . .
Examples of prohibited sexual conduct (but not necessarily limited to):
    The city's policy on harassment is zero tolerance.
Id. (bold in original); see also Mark Wiebe, City Considers More Specific Policy on Sexual Harassment, K.C. Star, Dec. 18, 1997, at 1 ("Prohibited sexual harassment includes unsolicited and unwelcome contact that has sexual overtones . . . [including] [o]ffensive comments, jokes, and other sexually oriented statements," not limited by any severity or pervasiveness requirement); see also Barbara Clements, Harassment Policies Revamped, News Trib., Mar. 22, 1996, at A12; Rosalind Rossi, Sexual Harassment Ban Spelled Out, Chi. Sun-Times, June 23, 1994, at 20; Trial Court Issues Policy on Sexual Harassment, Mass. Law. Wkly., Feb. 26, 1996, at 29.

    86.   

City commissioners . . . will enact a "zero-tolerance" policy on sexual humor . . . [following] a report [which] detailed a "pervasive problem atmosphere of sexual humor and innuendo" among City Hall employees.
. . . .
   [A] lawyer with the firm [hired to investigate the situation] told commissioners the frequent sexual jokes and innuendos among employees make for a hostile work environment.
   "From my opinion, was there sexual harassment?" [the lawyer] asked.  "Yes."
   His firm's investigation also detailed the sexual humor.  Among the instances, the report said [the city manager] wore a necktie to work depicting a sexual interlude between a man and woman.
   [The city clerk] uses sexual terms and words such as "b--" and "f--," the report said. . . .

Leanora Minai, St. Pete Beach Cracks Down on Harassment, Sexual Humor, St. Petersburg Times, Feb. 8, 1997, at 4B (expurgation in original).

    87.    Leavenworth, Kansas personnel policy No. III-6 ("Sexual Harassment Policy") (1997).  See also Houston Fire Department Policy on Equal Opportunity Employment ("You are entitled to a workplace free of discrimination.  Discrimination, in any form, is against the law and will not be tolerated by the City of Houston.  You cannot be discriminated against because of:  Race[,] Color[,] National Origin[,] Age[,] Religion[,] Disability[,] Retaliation[,] Veteran Status[,] Sexual Harassment[,] Sex AND, the use of racial, ethnic and gender slurs and jokes is expressly forbidden on the job site.").

    88.    Cheryl Johnson, The Latest in Offensive Workplace Items? A New Yorker Cartoon, Minn. Star. Trib., Jan. 18, 1994, at 3B.

    89.    Nat Hentoff, Sexual Harassment by Francisco Goya, Wash. Post, Dec. 27, 1991, at A21.  The administrators specifically cited Robinson v. Jacksonville Shipyards, Inc., 760 F. Supp. 1486 (M.D. Fla. 1991), a case that imposed liability for workplace pornography.  Nat Hentoff, Trivializing Sexual Harassment, Wash. Post, Jan. 11, 1992, at A19.  See Vogel, Kelly, Knutson, Weir, Bye & Hunke, Ltd. [a law firm], Political Correctness Gone Too Far or Serious Concern for Employers?, North Dakota Emp. Law Letter, Nov. 1997 ("the Goya incident illustrates that workplace conduct -- and, yes, even paintings -- that once may have been considered acceptable may no longer be"; this is said in an article aimed at "provid[ing] a basic definition of sexual harassment and outlin[ing] steps employers can take to prevent harassment in the workplace and avoid liability if harassment occurs"); Madison, Wisc.,, Municipal Code § 3.23(2)(ff) (defining "sexual harassment" to include "display of sexually graphic materials which is not necessary for business purposes").

    90.    Jennifer Goode, It's Art vs. Sexual Harassment, Tennessean, Mar. 1, 1996, at 1A.  The woman has one breast (including nipple) showing. Click to see.

    91.    Deborah Epstein, Can a "Dumb Ass Woman" Achieve Equality in the Workplace? Running the Gauntlet of Hostile Environment Harassing Speech, 84 Geo. L.J. 399, 405 (1996).

    92.    Catherine Trevison, Court to Decide if Nude is Naughty, Tennessean, Feb. 13, 1997, at 1B.

    93.    2 People for the American Way, Artistic Freedom Under Attack 29, 50, 92, 156, 214, 221 (1994); see also id. at 111, 208 (describing two more incidents, in which the complaints didn't specifically refer to harassment but city officials nonetheless concluded that the work might be harassing).

    94.    Lynn Hulsey, Artist Removes Vandalized Nude, Dayton Daily News, at 3B.

    95.    L.A. Times, Oct. 31, 1986, § 1, at 2.

    96.    Art of Birth Raises Hackles, Vancouver Sun, May 25, 1992.  See also Mont. Hum. Rts. Comm'n, Model Equal Employment Opportunity Policy: A Guide for Employers (no date) ("Examples of prohibited sexual harassment include, but are not limited to: . . . .  Displays of magazines, books, or pictures with a sexual connotation").

    97.    Nat Hentoff, A `Pinup´ of His Wife, Wash. Post, June 5, 1993, at A21.  Note that harassment law's ban of sexually suggestive materials is not at all limited to nudity; see, e.g., In re Butler, 166 Vt. 423, 697 A.2d 659, 664 (1997) (concluding that "a poster of a woman in a skimpy bikini" could count as harassment, because "the posting or display of any sexually oriented materials in common areas that tend to denigrate or depict women as sexual objects may serve as evidence of a hostile environment").

    98.    For historical examples, click here.

    99.    Turner v. Barr, 806 F. Supp. 1025, 1029 (D.D.C. 1992).

    100.    Snell v. Suffolk County, 611 F. Supp. 521, 531-32 (E.D.N.Y. 1985).

    101.    Harris v. International Paper Co., 765 F. Supp. 1509, 1527 (D. Me. 1991); see also Sones Morgan v. Hertz Corp., 542 F. Supp. 123, 128 (W.D. Tenn. 1981) (condemning "sexually indecent comments" made by Hertz employees and stating "that an injunction should issue against Hertz [and its employees] restraining them from these kinds of comments.  By this the Court means remarks such as `Did you get any over the weekend?´"), aff'd, 725 F.2d 1070, 1072 (6th Cir. 1984) (noting that the record didn't indicate that an injunction was actually issued); Cody v. Runyon, Appeal No. 01950574, 1996 WL 528597, at *11 (E.E.O.C. Sept. 5, 1996) ("The agency also shall monitor the workplace environment for a 6-month period to ensure that the workplace remains free of racially derogatory comments."); Aguilar v. Avis Rent-A-Car Sys., Inc., 53 Cal. Rptr. 2d 599 (Ct. App.), petition for review granted, 94 P.2d 602 (Cal. 1996).

    102.    Sharpe v. Robert S. Biscan & Co., No. 3:94-0567, slip op. at 17 (M.D. Tenn. Dec. 1, 1995) (enjoining employer and all employees "from making sexually explicit remarks, jokes, language and engaging in such conduct [i.e., sexually harassing conduct] toward female employees").

              Cf. Torres v. Union Market, No. 94-SEM-0066 (Mass. Comm'n Against Disc. Dec. 7, 1998), which compels speech instead of prohibiting it:  After a finding of national origin harassment and discrimination, the Commissioner ordered a small market to "sponsor an event celebrating the Latino history and culture, drawing upon the resources of leaders and civic organizations servicing the Springfield Latino community, including, but not limited to, the offices of the mayor of Springfield and State legislative representatives").

    103.    Robinson v. Jacksonville Shipyards, Inc., 760 F. Supp. 1486, 1542 (M.D. Fla. 1991).

    104.    E.g., 2 People for the American Way, Artistic Freedom under Attack 29, 50, 92, 156, 214, 221 (1994); see also id. at 111, 208 (describing two more incidents, in which the complaints didn't specifically refer to harassment but city officials nonetheless concluded that the work might be harassing); Michael Dougan, Mill Valley Balks at Nude Exhibit, S.F. Examiner, Jan. 9, 1996, at A3 (describing county officials' cancellation, which according to one official was partly influenced by concerns about sexual harassment suits, of a previously commissioned exhibit); The State, L.A. Times, Oct. 31, 1986, § 1, at 2 (describing county officials' order that a sculpture of a naked man displayed in the County Hall of Justice and Records be covered because it "might interfere with programs on sexual harassment"); Bill Leukhardt, Complaints Prompt Removal of Artwork; New Britain May Alter Screening Policy, Hartford Courant, Feb. 4, 1997, at B1; Don Noel, Who Speaks for Artists if Some Find Their Work Offensive?, Hartford Courant, Nov. 29, 1996, at A23; Vermont Censors Painting, Newsday, May 31, 1992, at 14.

    105.    Brief Amicus Curiae of 80 Individual Law Professors and Lawyers on Behalf of Plaintiff-Appellant and Cross-Appellee at 21, Robinson v. Jacksonville Shipyards, Inc. (No. 91-3655) (11th Cir. Apr. 27, 1992).  The case settled while on appeal.  The brief argued that the entire injunction was constitutional, except to the extent that it banned private possession (rather than display) of sexually suggestive material, an issue on which I don't focus in this article.

              Of the 80 signers, 78 were listed as professors, one as an adjunct professor, and one as a lawyer who is not a professor.  With apologies to the one lawyer, I'll focus on the 79 law professors, because their predominance among the signers makes the brief appear like an academic statement.

    106.    The omission of the "severe or pervasive" requirement is common in many contexts.  For instance, Professor Deborah Epstein mentions that "a survey of 2000 lawyers at twelve large law firms . . . showed that 91% of the women and 13% of the men had been subjected to unwelcome verbal harassment within the past year."  Deborah Epstein, Can a "Dumb Ass Woman" Achieve Equality in the Workplace? Running the Gauntlet of Hostile Environment Harassing Speech, 84 Geo. L.J. 399, 403 (1996) (citing Margot Slade, Law Firms Begin Reining in Sex-Harassing Partners, N.Y. Times, Feb. 25, 1994, at A19).  "The survey asked whether the lawyers had experienced unwelcome sexual advances . . . ; pressure for dates; letters, phone calls, cartoons, or other materials of a sexual nature; sexually suggestive looks or gestures; or pressure for sexual favors."  Id. at 403 n.24.

              But the survey asked whether respondents "had experienced any [of the above-listed conduct] within the last year."  Slade, supra, at A19 (emphasis added).  The survey did not ask whether the conduct was "severe or pervasive" (perhaps because "severe" and "pervasive" are such vague terms), and certainly not every "sexually suggestive look" or "cartoon[] of a sexual nature" is illegal.  When Professor Epstein is talking about "verbal harassment" here, she seems to be talking about speech that might be offensive based on sex even if it's not severe or pervasive enough to create a hostile environment.

              The same happens in other studies that purport to measure "harassment."  See, e.g., Mary Jordan, Sex Harassment Complaints Starting in Grade School, Wash. Post, June 2, 1993, at A1 (describing the American Association of University Women's Hostile Hallways report, which reported that 85% of all high school girls and 76% of all high school boys had been sexually harassed in high school; the report defined "harassment" to include, among other things, any unwanted "sexual comments, jokes, gestures, or looks," with no severity/pervasiveness requirement); Eugene Volokh, If Everything's Harassment, Then Nothing Is, Balt. Sun, Jan. 12, 1995, at 19A (describing similar definition in a study of supposed harassment on TV sitcoms).

    107.    Stroehmann Bakeries, Inc. v. Local 776, International Brotherhood of Teamsters, 969 F.2d 1436, 1442 (3d Cir. 1992) (employer has "obligation to prevent and sanction sexual harassment in the workplace"); Newsday, Inc. v. Long Island Typographical Union, 915 F.2d 840, 845 (2d Cir. 1990) (employer has "legal duty to eliminate sexual harassment in the workplace"); Munn v. City of Savannah, 906 F. Supp. 1577, 1584 (S.D. Ga. 1995) (employer has duty to prevent harassment); 29 C.F.R. § 1604.11(f) (1996) ("Prevention is the best tool for the elimination of sexual harassment.").  See also Chalmers v. Quaker Oats Co., 61 F.3d 1340 (7th Cir. 1995) (defending an employer's choice -- challenged in a breach of contract lawsuit by an employee who was disciplined for sexual harassment -- to have a harassment policy that barred even "single offense[s]"); the Chalmers court noted:

That Quaker interpreted its [sexual harassment] policy in a manner more stringent than Title VII makes sense in light of its purpose: to address incidents of sexual harassment before they evolve into more severe situations.  If Quaker's policy were consonant with federal law, Quaker would be hamstrung in its efforts to take measures to stop such conduct before it became so abusive and offensive that the company was vulnerable to a Title VII lawsuit.
Id. at 1346.

    108.    I should stress that the Amicus Brief does recognize that harassment law raises some First Amendment issues, and that it speaks specifically about injunctions entered to remedy adjudicated violations.  But the reasoning the Brief gives to support the injunction -- that to "insure that the illegal activity will not recur," even "specific expressive acts" must be banned -- is equally applicable to proactive employer policies.

    109.    No. 91-108394-CZ (Mich. Ct. App. Apr. 10, 1995) (per curiam) (unpublished opinion).

    110.    Id. at 1; id. at 3 (Taylor, J., concurring in part and dissenting in part).

    111.    Id. at 2.

    112.    See, e.g., NAACP v. Claiborne Hardware, 458 U.S. 886, 915 (1982) (noting that where tort claim alleges combination of protected speech and unprotected violence and threats of violence, "the nonviolent elements . . . are entitled to the protection of the First Amendment"; reversing the judgment for the plaintiffs on the grounds that the judgment was partly based on protected speech); Street v. New York, 394 U.S. 576, 590 (1969) (reversing a conviction because "this record [is] insufficient to eliminate the possibility either that appellant's words were the sole basis of his conviction or that appellant was convicted for both his words and his deed" (emphasis added)).

    113.    Of course, if the environment would have been abusive even without the political statements, a court could certainly say:  "Setting aside the political statements, the other behavior -- say, physical abuse and one-on-one personal slurs -- was sufficiently severe or pervasive to constitute harassment."  This would give the employee the relief he deserves, without basing it at all on the protected speech.  The difficulties arise when the court makes clear that its decision was based on all the incidents, including the offensive political statements.

    114.    See, e.g., Doe v. Petaluma City Sch. Dist., 830 F. Supp. 1560, 1573-75 (N.D. Cal. 1993) (borrowing the hostile environment model from Title VII to recognize a hostile educational environment cause of action under Title IX); Patricia H. v. Berkeley Unified Sch. Dist., 830 F. Supp. 1288, 1290-93 (N.D. Cal. 1993) (same).

    115.    Thomas C. Grey, How to Write a Speech Code Without Really Trying: Reflections on the Stanford Experience, 29 U.C. Davis L. Rev. 891, 907 (1996); see id. at 902 & n.37 (acknowledging that each prohibited statement would not by itself create a hostile environment).

    116.    Deborah Epstein, Can a "Dumb Ass Woman" Achieve Equality in the Workplace? Running the Gauntlet of Hostile Environment Harassing Speech, 84 Geo. L.J. 399, 415 (1996) ("Taken together, [the elements of a harassment claim] create a concrete definition of illegal gender-specific abuse and gender-based sexual harassment, and they focus the law's regulatory reach on its most objectively extreme, persistent, and unwelcome forms.").

    117.    29 C.F.R. § 1604.11(f) (1996) (the regulation covering sexual harassment).

    118.    Cf. Baggett v. Bullitt, 377 U.S. 360, 372 (1964) (focusing on the likely reactions not of the reckless or oblivious, but of "[t]hose . . . sensitive to the perils posed by . . . indefinite language"); New York Times Co. v. Sullivan, 376 U.S. 254, 279 (1964) (focusing on the likely reaction of people who harbor "doubt whether [the truth of their statements] can be proved in court or fear of the expense of having to do so"); Keyishian v. Board of Regents, 385 U.S. 589, 604 (1967) (focusing on the likely reaction of those concerned with keeping their jobs); Lamont v. Postmaster Gen., 381 U.S. 301, 307 (1965) (focusing on the "likely . . . feel[ing of] some inhibition" on the part of subscribers who must specifically request material condemned by the government as Communist propaganda); Reno v. ACLU, 117 S. Ct. 2329, 2344-46 (1997) (stressing that the vagueness of a speech restriction increases the breadth of the material chilled by the restriction).  
 
 
 
 
 
 


 
 

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