How Hostile Environment Law Is Spreading Beyond Traditional Workplaces


by Prof. Eugene Volokh, UCLA School of Law




Many people don’t much mind workplace harassment law because they see it as confined to traditional workplaces — shipyards, clerical offices, and the like.  As I argue elsewhere, speech in those workplaces still deserves protection from government censorship, but many people just can’t get excited about it.


But in any case, harassment law is not so neatly limited:  It potentially restricts speech in universities, public buildings, parks, restaurants, and even online service providers such as America Online.  The slippery slope is not just a hypothetical danger here — harassment law is already leading to speech restrictions in places where speech has always been assumed to be free.


1.                  Every Place is a Workplace


To begin with, every place is someone’s workplace: universities, public buildings, libraries, parks, and bookstores all have employees working there.  Harassment law restricts speech in these workplaces, too.  Click here for a more detailed discussion.


2.                  Harassment Law Restricts Speech by Patrons as Well as Employees, in Libraries, Restaurants, and Other Places


It’s well-established that harassment law requires employers to shield their workers from offensive speech by patrons as well as by coworkers.  This means that harassment law can silence us even when we’re saying religious jokes to our friends in a restaurant, or looking at possibly offensive material at a computer in a library.  Various public libraries have already begun to restrict Internet access by patrons based partly on concerns about harassment liability.  Click here for a more detailed discussion.


3.                  Harassment Law Can Restrict the Distribution of Speech


If employees can be harassed by their employers’ offensive speech, or their coworkers’ offensive speech, they can also be harassed by the speech that their employers — bookstores, convenience stores, print shops — publish and distribute. Click here for a more detailed discussion.


4.                  Harassment Law Is Being Used to Justify University Student Speech Codes


Workplace harassment law is already being extended by analogy to restrict speech by university students.  The new batch of university speech codes is being copied from harassment law, and their defenders are explicitly using workplace harassment law as an analogy.  The U.S. Department of Education Office for Civil Rights has explicitly taken the view that the First Amendment may be trumped by civil rights laws, consciously citing workplace harassment law as a precedent.  Click here for a more detailed discussion.


5.                  Hostile Public Accommodations Environment Law Threatens to Silence Us Wherever We Go


Finally, the logic of workplace harassment law is being extended to all places of public accommodation — restaurants, stores, and even online services such as America Online.  If bigoted speech by coworkers in the workplace can equal employment discrimination and thus be illegal, then bigoted speech by fellow patrons in places of public accommodation can also equal discrimination and thus be illegal.  Courts are already using this logic.  Click here for a more detailed discussion.


6.                  Conclusion


The concept of a “slippery slope” may seem hackneyed, but it reflects a basic truth about our legal system.  New exceptions to constitutional protection become precedent for still more exceptions.  Thanks to many people’s unreflective acceptance of harassment law, we’ve already slipped a good distance down the slippery slope, and we’re risking slipping further.  (Click here for a more detailed discussion.)


It’s time we recognized how broad a restriction harassment law is, and confronted the very serious free speech problems that it poses.