Prof. Eugene Volokh, UCLA Law School
Washington Post, Aug. 22, 1997, at A23; reprinted as
Bureaucrats Trying to Halt Free Speech at Workplace
Door, Rocky Mountain News (Denver), Aug. 31, at 4B; and as
A National Speech Code Courtesy of the EEOC, Chicago
Tribune, Sept. 14, 1997, at 21.
Telling "ebonics" jokes, the federal government says, is unlawful. Yes, that's right. You may burn the American flag, advocate violent revolution, post indecent material on the Internet, but "disseminating derogatory electronic messages regarding `ebonics´" to your co-workers is against the law.
So says the Equal Employment Opportunity Commission, in a lawsuit filed in federal court late last month. The EEOC is now trying to force the Federal Home Loan Mortgage Corp. to "take prompt and effective remedial action to eradicate" such speech by its workers.
Remarkably, the EEOC, aided by some courts and by state civil rights agencies, thinks it can get away with this, and so far it has. Without much fanfare, the law of "workplace harassment" has turned into a nationwide speech code.
Under this speech code, it's illegal to say things that are "severe or pervasive" enough to create a "hostile or offensive work environment" -- whatever that is -- based on race, religion, sex, national origin, veteran status and an ever-widening list of other attributes.
Here is a brief catalogue of some of what's been described by various agencies and courts as "harassment":
Co-workers' use of "draftsman" and "foreman" (instead of "draftsperson" and "foreperson"). "Men Working" signs. Sexually suggestive jokes, even ones that aren't misogynistic. Derogatory pictures of the Ayatollah Khomeini and American flags burning in Iran. In the words of one court's injunction: remarks "contrary to your fellow employees' religious beliefs." "Offensive speech implicating considerations of race."
What could the government possibly be thinking about here? The Supreme Court has never suggested that the workplace is somehow a First Amendment-free zone. Many of us talk to more people at work than we do anywhere else. The workplace is where we often discuss the questions of the day, whether they be the Oakland School Board's ebonics policy or affirmative action or religion.
Private employers, like private newspaper publishers or private homeowners, are not bound by the First Amendment and may thus restrict what is said on their property. But the United States government, which is under a constitutional obligation not to abridge "the freedom of speech," can't go to court to insist on the "eradication" of political speech that it thinks is reprehensible.
Of course, many harassment cases involve more than just impolitic jokes. The ebonics case, for instance, also involved some threats, which are constitutionally unprotected, and some one-to-one insults, which might also be properly punishable. If the EEOC had just sued over this conduct, there would be little constitutional difficulty. But the EEOC has no business claiming that toleration of e-mailed political opinion is "an unlawful employment practice."
Why have the free-speech implications here been so widely ignored? Hard to say. Maybe everyone was misled by the law's mushiness. It's always easier to build consensus behind vague terms such as "hostile or offensive work environment," which can mean all things to all people. I like to think that if the EEOC proposed a regulation that explicitly barred ebonics jokes, someone would have made a fuss.
But the breadth of harassment
law has now become pretty clear. The federal government
seems to think it's entitled to control what we say in our
workplaces so long as a "reasonable person" would find that our
speech makes the environment "hostile or offensive." Pretty
remarkable how far we've let things come.