Most antidiscrimination laws — such as Title VII, the Americans with Disabilities Act, the Age Discrimination in Employment Act, and various state and local laws — do not explicitly discuss harassment (speech or nonspeech). Rather, they simply bar discrimination in the “terms, conditions, or privileges of employment.”
But courts — sometimes on their own and sometimes following the EEOC’s lead — have interpreted these definitions to bar not only discrimination as it’s traditionally understood, but also two forms of “harassment”:
1. Quid pro quo harassment, a supervisor threatening to fire or not promote an employee if she doesn’t have sex with him. The ban on quid pro quo harassment raises no interesting First Amendment problems — such behavior is as constitutionally unprotected as any other form of threat or extortion.
2. “Hostile work environment” harassment, speech or conduct that is
· “severe or pervasive” enough to
· create a “hostile or abusive work environment”
· based on race, religion, sex, national origin, age, disability, veteran status, or, in some jurisdictions, sexual orientation, political affiliation, citizenship status, marital status, or personal appearance,
· for the plaintiff and for a reasonable person.
Many hostile environment harassment claims have nothing to do with speech, for instance when a harassment claim is based only on offensive physical touching or vandalism or discriminatory job assignments (which have generally been seen as “harassment” rather than discrimination). These claims pose no First Amendment problems. The same is true, when a harassment claim is based on generally unprotected speech such as threats or fighting words or slander.
But hostile environment harassment findings based partly on political statements, or religious proselytizing, or social commentary, or art (click for examples), raise very serious free speech objections. It is these objections that I discuss on this site.
The standards for harassment under these laws (and under other antidiscrimination statutes, such as the Civil Rights Act of 1966, 42 U.S.C. § 1981, and 42 U.S.C. § 1983 claims against state and local government employers) are generally identical. See, e.g., Hamilton v. Rodgers, 791 F.2d 439, 442 (5th Cir. 1986) (§ 1981); Bennett v. Corroon and Black Corp., 517 So. 2d 1245, 1246 (La. App. 1987), writ denied, 520 So. 2d 425 (La. 1988) (Louisiana law); Continental Can Co. v. State, 297 N.W.2d 241, 246 (Minn. 1980) (Minnesota law); Scandinavian Health Spa v. Ohio Civ. Rights Comm’n, 64 Ohio App. Bd. 480, 581 N.E.2d 1169 (1990) (Ohio law); Holien v. Sears, Roebuck & Co., 298 Or. 76, 86‑90, 689 P.2d 1292, 1297‑99 (1984) (Oregon law); Rabidue v. Osceola Ref. Co., 805 F.2d 611, 617 (6th Cir. 1986) (Michigan law); Fair v. Guiding Eyes for the Blind, Inc., 742 F. Supp. 151, 157 (S.D.N.Y. 1990) (New York law).
42 U.S.C. §§ 2000e‑2(a)(1) (1988).
Courts dealing with sexual harassment cases have been influenced by the EEOC’s sexual harassment regulation, 29 C.F.R. § 1604.11 (1991); see also 29 C.F.R. § 1606.8 (1991) (national origin harassment). But these regulations are not binding on courts, see Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65 (1986), and some courts have gone beyond them, see Hall v. Gus Constr. Co., 842 F.2d 1010, 1014 (8th Cir. 1988) (holding that, even if the EEOC regulation covers only “conduct of a sexual nature,” harassment on the basis of sex should be actionable even when it is not of a sexual nature); see also Andrews v. City of Philadelphia, 895 F.2d 1469, 1485 (3d Cir. 1990) (same).
There are no EEOC racial harassment or religious harassment regulations. Courts recognized racial harassment as actionable before the EEOC sexual and national origin harassment regulations were promulgated. See Rogers v. EEOC, 454 F.2d 234, 238 (5th Cir. 1971), cert. denied, 406 U.S. 957 (1972).
See, e.g., Tomkins v. Public Serv. Elec. & Gas Co., 568 F.2d 1044, 1048‑49 (3d Cir. 1977). One could also imagine quid pro quo religious harassment, where a supervisor threatens to retaliate against a subordinate unless the subordinate converts to the supervisor’s religion.
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); 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); 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); infra text accompanying note 18 (describing veteran status harassment case); 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 “marital status, sexual orientation or alienage or citizenship status”); Seattle, Wash., Code § 14.04.040 (1986) (barring discrimination in “terms, conditions, . . . or privileges of employment” based on, among other things, “political ideology”); Leibert v. Transworld Sys., Inc., 39 Cal. Rptr. 2d 65, 67 (Ct. App. 1995) (barring harassment based on sexual orientation).