A Practitioner's Guide to the First Amendment Defense in Hostile Environment Harassment Cases
By Eugene Volokh and Ann Swartzberg Wexler*
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Your client has come to you for advice. One of his employees has complained about several incidents that she claims are sexually harassing. First, she overheard a male employee say to his co-workers at lunch that "the world was better off when women stayed home with their kids." Some other lunch conversations have at times expressed similarly sexist political views. Second, for weeks on end, she's been overhearing jokes around the copier about Bill Clinton and Monica Lewinsky, including comments such as "they should rename it the `oral' office" and "that's why they call him `head' of state." The sales staff, male and female, loves these bad puns, and though she's said that she finds the puns offensive, they tell her "If you don't like them, don't listen to them."(1) Finally, she is especially offended by a print of Manet's Le Déjeuner sur l'herbe, which depicts a nude woman picnicking with two clothed men, hanging on a coworker's office door.(2) Your client doubts that the employee would sue while she's still at work, but he's afraid that she might quit--as she's threatened to--and then sue. Also, the business is quite volatile, and the client might have to lay off the employee (as well as several others); he knows that such terminations often lead to lawsuits that allege, among other things, harassment. What should I do, he asks you? Given the First Amendment, may I really be punished for tolerating my employees' speech? You may be surprised to learn that your client's instincts are correct, and that a First Amendment argument should be a big part of his defense. Courts are beginning to recognize that, under workplace harassment law, the government is seriously restricting speech in private workplaces. Consider the Fifth Circuit's opinion in DeAngelis v. El Paso Mun. Police Officers' Ass'n:(3) Where pure expression is involved, Title VII steers into the territory of the First Amendment. It is no use to deny or minimize this problem because, when Title VII is applied to sexual harassment claims founded solely on verbal insults, pictorial, or literary matter, the statute imposes content-based, viewpoint-discriminatory restrictions on speech. Management lawyers need to know how to raise a First Amendment defense in harassment claims that are, even in part, based on speech; and plaintiffs' lawyers need to anticipate this argument. I. Workplace Harassment Defined Courts have interpreted antidiscrimination laws, such as Title VII, the ADA, and various state laws,(4) as prohibiting two types of harassment. The first, "quid pro quo" harassment--a supervisor threatening an employee who refuses his sexual advances--is as constitutionally unprotected as any other form of threat or extortion.(5) Clearly, our hypothetical client's employees haven't crossed this line, and this type of harassment isn't the subject of this article. Our concern is the second type of 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, disability, or veteran status (and in some jurisdictions, sexual orientation, political affiliation, citizenship status, marital status, or personal appearance), for the plaintiff and for a reasonable person.(6) II. The Workplace Harassment Definition Interpreted(7) What does "severe or pervasive enough to create a hostile, abusive, or offensive environment" mean? Much depends on the particular judge or jury you draw; but it can certainly include political, religious, social, and artistic-themed speech:
And because the law is so indefinite, many employers err on the side of caution; vagueness predictably requires people "to `steer far wider of the unlawful zone' than if the boundaries of the forbidden areas were clearly marked."(15) Furthermore, the "severe or pervasive" threshold provides little comfort to an employer deciding what speech may be tolerated and what must be suppressed (even though it does help employers defending against a lawsuit that's actually filed(16)). No employer can tell its employees: "Each of you may tell sexual jokes or express offensive political views so long as the aggregate of what you and your coworkers say isn't so `severe or pervasive' that it creates a `hostile, abusive, or offensive work environment.'" The only way the employer can prevent potential liability is by forbidding even individual instances of speech that, when aggregated, would create a hostile environment. We see this in many court orders, which, like employer policies, are aimed at preventing (rather than just punishing) hostile environments. Thus, one court 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,"(17) without mentioning a severity or pervasiveness requirement. Another injunction prohibited "derogatory bulletins, cartoons, and other written material" and "any racial, ethnic, or religious slurs whether in the form of `jokes,' `jests,' or otherwise."(18) 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."(19) Likewise, we see this in advice given by government agencies and employment experts:
With harassment law, the government pressures employers to suppress even individual incidents of offensive speech. III. How to Use the First Amendment Defense. Under black-letter First Amendment doctrine, the government is generally not allowed to punish religious proselytizing, sexual jokes, suggestive pictures, or racist or sexist statements, even when this speech is offensive.(24) Though the Supreme Court has not yet squarely confronted the conflict between the First Amendment and harassment law, some courts have begun to recognize that the law poses serious constitutional problems. Furthermore, as we explain below, there are considerable procedural advantages to raising a First Amendment defense, even if the court concludes that harassment law is substantively constitutional. A. What Courts Have Said Courts have begun to pay serious attention to the tension between First Amendment and harassment law. In Weller v. Citation & Gas Corp.,(25) for example, the Fifth Circuit echoed the sentiment it had voiced earlier in DeAngelis: In DeAngelis, we noted the yet unresolved dilemma facing courts adjudicating claims at the intersection of Title VII and the First Amendment. . . . Supreme Court precedent in this area provides little guidance concerning whether conduct targeted for its expressive content . . . may be regulated under Title VII. We cite other such cases in the endnote.(26) In California, the Supreme Court has agreed to rehear Aguilar v. Avis Rent-a-Car System, Inc., in which the California Court of Appeal upheld an injunction banning racial epithets by an employee. (In a bitter dissent, one judge considered this an unconstitutional prior restraint.(27)) Though other decisions, largely from federal district courts, have rejected a free speech defense, they have usually done so without discussion.(28) The Supreme Court has not decided this question; the Court's harassment cases haven't dealt with the First Amendment argument.(29) In R.A.V. v. City of St. Paul, the Court did say, in dictum, that: [A] particular content-based subcategory of a proscribable class of speech can be swept up incidentally within the reach of a statute directed at conduct rather than speech. Sexually derogatory "fighting words," among other words, may produce a violation of Title VII's general prohibition against sexual discrimination in employment practices. Where the government does not target conduct on the basis of its expressive content, acts are not shielded from regulation merely because they express a discriminatory idea or philosophy. [Emphases added.](30) But, as the Fifth Circuit noted, this tells us very little: Whether . . . applications of title VII [to protected speech rather than to proscribable speech] are necessarily unconstitutional has not yet been fully explored. The Supreme court's offhand pronouncements are unilluminating. (Footnote: The Court's [R.A.V. decision] does not that mean that Title VII trumps First Amendment speech rights.)(31) R.A.V.'s limitation to proscribable classes of speech leaves unresolved the question of liability for speech--such as political statements, religious proselytizing, jokes, and art--that is constitutionally protected. B. State Action Harassment law is a government-imposed restriction on people's speech: The government is enjoining certain kinds of speech, or awarding substantial compensatory and punitive damages based on speech.(32) This is true even though the employer may be a private entity: By imposing liability on the employer, the government pressures it to restrict its employees' speech. Instead of the government restricting people's speech directly, the government coerces private employers to do the job.(33) In the absence of government action, of course, private employers may restrict employees' speech with no First Amendment difficulties, and even fire employees for speech that's otherwise protected against government censorship, such as profanity or political speech. Likewise, private newspaper publishers may restrict what their columnists write, private commercial landlords may restrict the signs their lessees put up or the books the lessees sell, and private householders may restrict what their guests say at the dinner table.(34) But this doesn't mean than the government can, through threat of liability, pressure publishers, landlords, householders or employers to restrict people's speech. Employers may resist such pressure by raising employees' First Amendment rights as defense to a harassment suit.(35) C. Harassing Speech Doesn't Fit in the Existing Free Speech Exceptions(36) 1. Workplace Speech There is no exception to the First Amendment for government restrictions on the speech of private workers. NLRB v. Gissel Packing Co. made clear that workplace speech is generally protected from government restriction by the Free Speech Clause, so long as the speech doesn't contain a "threat of reprisal or promise of benefit" by the employer or a union.(37) And this must be so: If, for instance, Congress tried to bar private employees from criticizing the war effort, or from saying things critical of returning soldiers, surely the law would be unconstitutional even if applied only to workplace speech. Likewise for speech that expresses offensive views on religious, racial, or sexual issues. The government acting as employer does of course have broad power to restrict its own employees' speech, but this rule is completely inapplicable to government restrictions on speech in private workplaces. The government employee speech doctrine is based on the theory that "the State has interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general."(38) Harassment law is imposed by the government acting as sovereign, not by the government acting as employer; the rules for the two contexts are radically different.(39) 2. Time, Place, and Manner Restrictions Harassment law can't be justified under the "time, place, and manner" doctrine. Time, place, and manner regulations are permissible only if they are content-neutral;(40) harassment law is content-based, suppressing some kinds of speech (say, bigoted political statements) and not others.(41) Nor can harassment law fit into the "time, place, and manner" doctrine on the theory that it focuses on the "secondary effects" of speech, and is thus "justified without reference to the content of the regulated speech."(42) The Court has many times held that the "direct impact that speech has on its listeners [-] the emotive impact of speech on its audience [-] is not a `secondary effect.'"(43) Harassment law, which is justified by the desire to prevent offensive work environments for the targets of harassment, is therefore content-based. 3. Fighting Words; Public Fora; Speech as Evidence; Conduct Harassment law can't be defended under the fighting words doctrine, which applies only to face-to-face insults that are likely to arouse an immediate violent response;(44) under the public forum doctrine,(45) which apply only when the government is the employer or the landlord; or under the "speech as evidence" doctrine, since harassment law doesn't use the speech as evidence of some other action or intention, but rather makes the speech itself punishable or enjoinable.(46) Similarly, it can't be defended by arguing that harassment law restricts the "conduct" of harassment rather than speech,(47) any more than one can defend overbroad libel laws or sedition laws by arguing that they restrict "libel, not speech," or "sedition, not speech": The law is restricting speech, even when it calls it harassment--the First Amendment clearly applies, and the question is whether this restriction falls within one of the First Amendment exceptions. 4. Captive Audience Doctrine Employees in the workplace are in a sense "captive"--unable to easily escape the offensive speech--but the Court has never held that the presence of a captive audience generally justifies speech restrictions.(48) People often can't avoid offensive speech, even at work, but this doesn't strip the speech of constitutional protection. For example, strikebreakers are captive to picketers who march around with signs saying "Scab"; they see the offensive speech every morning and evening, and even more often if they have to come and go during the day, or if their desks face the street. Likewise, people who actually work in the streets--traffic cops or pushcart vendors--are "captive" to street demonstrations; and yet this doesn't justify nullifying the demonstrators' right to speak, or even to speak offensively. Furthermore, the Court has rejected content-based speech restrictions, even when aimed at shielding captive audiences in the home.(49) Content-based captive audience restrictions have only been allowed in the special areas of profanity in broadcasting, government-owned non-public forum property and (possibly) mailings into the house.(50) Even in Pacifica, where a content-based ban was upheld, the court stressed the need for viewpoint neutrality:(51) the fact that society may find speech offensive is not a sufficient reason for suppressing it . . . . For it is a central tenet of the First Amendment that the government must remain neutral in the marketplace of ideas. If there were any reason to believe that the Commission's characterization of the Carlin monologue as offensive could be traced to its political content . . . First Amendment protection might be required. Harassment law often punishes speech precisely because of its political content--in our hypothetical, for example, the coworker's comments on working mothers would have been acceptable if he had instead praised the advances made by women. 5. Mixture of Protected Speech and Unprotected Speech (or Conduct) The First Amendment prohibits imposing liability based even in part on protected speech--for instance, based on a combination of offensive political statements and unprotected physical conduct, or, as we discuss below, one-to-one insults.(52) If the plaintiff wants to sue based on the unprotected material, he may, but the court should instruct the jury to consider only that material. D. A New Exception for Workplace Harassment? Plaintiffs' lawyers should, of course, argue that the courts should simply create a new exception. Workplace speech isn't that important, the argument would go, and we can easily live with a little governmental speech suppression for the sake of a less discriminatory society. The response is that people spend more of their waking hours at work than anywhere else except (possibly) their homes. Most Americans don't go to public demonstrations, or burn flags, or get much media time, but they do talk about current affairs with their coworkers. Some of these opinions might offend members of one of the growing number of protected groups, but the government has no business censoring this speech. Moreover, a workplace exception would be remarkably broad, since every place is someone's workplace: Universities, public buildings, libraries, parks, and bookstores all contain employees. If a legitimate artwork can be banned in a city hall, why can't it be banned in a restaurant, where it might offend the waiter? Or for that matter, a museum, where offended janitors might be confronted with it every night? If offensive reading material can be banned from a firehouse, why not from a bookstore or a library? Why couldn't religiously or racially offensive speech be barred from a park or a street, where custodians or street vendors might be exposed to it?(53) Consider also that harassment law requires employers to shield their workers from offensive speech and conduct by patrons as well as by co-workers. This means that--as employment experts have already pointed out to employers--harassment law can silence us even when we're telling religious jokes to our friends in a restaurant,(54) or looking at possibly offensive material at a library computer.(55) The First Amendment seems to prohibit such broad, content- and viewpoint-based governmental speech restrictions. IV. Harassing Speech That Isn't Protected by the First Amendment A new exception for workplace harassment actually isn't necessary in many cases. The classic "quid pro quo" harassment that originally defined the field--that is, a supervisor threatening to retaliate against an employee who refuses his or her sexual advances--is already unprotected, as is any other type of threat or extortion.(56) Race- and sex-based threats by co-workers, and other traditionally unprotected categories of speech, such as fighting words and slander, are similarly unprotected Likewise, we do think it's proper to create one new, limited exception to First Amendment protection--epithets or similar insults said to a single unwilling listener shouldn't be protected. This sort of one-to-one unwanted speech is likely only to annoy and offend, not persuade or edify; and, most importantly, the law can restrict it without suppressing speech that reaches other, potentially willing listeners.(57) Allowing such a limited new exception to the First Amendment wouldn't threaten core free speech values: It won't give the offended listener a heckler's veto over one-to-many communications--such as lunchroom conversations, posters on office doors, department-wide e-mail, or articles in a company newsletter--that reach other coworkers who might well want to hear. This distinction between one-to-one and one-to-many speech is supported by existing First Amendment exceptions. Face-to-face, one-to-one insults that are likely to cause a fight can generally be banned, even though similar words communicated to the world at large on a jacket cannot be.(58) A householder has veto power over the mail he gets, but this power doesn't prevent the mailer from sending messages to others.(59) Likewise, this distinction between one-to-one speech and other speech may justify the prohibitions on unwanted telephone calls, which have been largely upheld by lower courts.(60) V. Procedural Advantages of a First Amendment Defense(61) We think these arguments for First Amendment protection are doctrinally strong, and some courts have taken them seriously. Though some other courts have rejected them, a defendant has much to gain and little to lose from making them to a judge, on a motion for summary judgment or a motion in limine to exclude evidence. But even if a court ultimately rejects our arguments and concludes that harassing speech is substantively unprotected, raising the First Amendment will still yield significant procedural advantages. 1. Most clearly, even if a court holds that harassment law is substantively constitutional, a defendant is entitled to de novo appellate review.(62) Instead of giving the usual deference to the lower court's finding that the speech was "severe or pervasive" enough to create a "hostile or offensive" work environment, the appellate court would have to decide the matter for itself, thus giving the defendant a second chance. This is the standard rule applied for all speech restrictions, even one that are substantively valid, such as libel laws, obscenity laws, and so on. 2. The Free Speech Clause also generally bans strict liability based on speech, because such liability would unduly chill speakers--this is black-letter law for other speech restrictions, including libel, obscenity, and even child pornography. The defendant may argue that such a rule must apply to harassment cases in which state laws impose strict liability where the hostile environment is created by a supervisor.(63) 3. Liability in libel cases and civil obscenity cases must be proven by clear and convincing evidence rather than by a preponderance of the evidence, to decrease the likelihood that protected speech will be erroneously restricted.(64) Again, you can also make this argument for harassing speech, even if a court concludes that harassing speech (like libel and obscenity) is substantively unprotected. 4. Punitive damages aren't allowed in libel cases--even if compensatory damages are--unless there's a showing that defendant actually knew that the speech was false, or at least acted recklessly.(65) The same rule, which is justified by the concern that allowing punitives will cause the law to overreach and chill even protected speech, may apply in perhaps invasion of privacy and negligent publication cases.(66) The defendant can argue that it should likewise apply to harassment cases. 5. Even if a court decides that harassing workplace speech is not protected by the First Amendment, the prior restraint doctrine would limit the court's ability to punish and enjoin speech that doesn't actually amount to harassment. The court could not preliminarily enjoin isolated bigoted statements, since such statements by themselves aren't severe or pervasive enough to create a hostile work environment; under prior restraint doctrine, such overly broad injunctions that sweep protected speech together with unprotected speech are unconstitutional. Even if harassing speech is unprotected, any judicial injunctions against harassment must be limited to speech that actually creates a hostile environment, not to isolated statements that may not be harassment at all.(67) In fact, some state constitutions, such as the California Constitution, are even more hostile to prior restraints than the U.S. Constitution;(68) under them, any speech-restricting injunction in harassment cases may be invalid. VI. Conclusion Your client, like many employers over the last decade, is being pressured by the law to impose a government-dictated employee speech code. The government can't avoid First Amendment scrutiny by drafting private parties to implement speech restrictions; the employer may assert the rights of his workers as a defense against liability. And the vagueness and breadth of most harassment law makes it ripe for constitutional attack. The law has begun to suppress speech that is protected in almost all other arenas--political speech, religious comments, legitimate art, and just about any reference to sex. Courts are beginning to recognize this suppression as problematic under the First Amendment, and lawyers on both sides of the issue need to be aware of the constitutional arguments which may be central to many workplace harassment cases.
*Eugene Volokh teaches constitutional law at UCLA Law School, and has written five law review articles and several op-eds on the freedom of speech and workplace harassment law; his work on the subject is collected at http://www.law.ucla.edu/faculty/volokh/harass. Ann Swarzburg Wexler is a student at UCLA Law School. 1. See, e.g., Dernovich v. City of Great Falls, Mont. Hum. Rts. Comm'n No.
9401006004 (Nov. 28, 1995) (imposing harassment liability based entirely on sexually
themed humor that wasn't directed at the plaintiff but was just overheard by her);
http://www.law.ucla.edu/faculty/volokh/breadth.htm#JOKES (collecting many other
incidents); Eugene Volokh, What Speech Does "Hostile Work Environment" Harassment
Law Restrict?, 85 Geo. L.J. 627, 633 (1997) (likewise).
See Nat Hentoff, Sexual Harassment by Francisco Goya, Wash. Post, Dec. 27,
1991, at A21 (college administrators remove Goya's Naked Maja from a classroom after a
professor complained that it constituted harassment). See also Robinson v. Jacksonville
Shipyards, Inc., 760 F. Supp. 1486, 1542 (M.D. Fla. 1991) (enjoining all pictures in which
the model "is posed for the obvious purpose of displaying . . . private portions of his or her
body"); http://www.law.ucla.edu/faculty/volokh/harass/breadth.htm#ART (collecting many
such incidents); Eugene Volokh, Freedom of Speech and Workplace Harassment, 39 UCLA
L. Rev. 1791, 1859-61 (1992).
3. 51 F.3d 591, 596-97 & nn.6-7 (5th Cir. 1995).
4. 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. 5. See Gissel Packing v. NLRB, 395 U.S. 575 (1969).
8. Tunis v. Corning Glass Works, 747 F. Supp. 951, 959 (S.D.N.Y.
1990), 9. Kentucky Comm'n on Human Rights, Human Rights Report, Spring
1994, at 2.
10. Pakizegi v. First Nat'l Bank, 831 F. Supp. 901, 908 (D. Mass.
1993) (dictum) (also describing this as "discriminatory, anti-Iranian
conduct"), 11. Brown Transp. Corp. v. Commonwealth, 578 A.2d 555, 562 (Pa.
Commw. Ct. 1990).
12. Dernovich v. City of Great Falls, Mont. Hum. Rts. Comm'n No.
9401006004 (Nov. 28, 1995).
13. Jennifer Goode, 14. Loudoun County Public Library, 15. Baggett v. Bullitt, 377 U.S. 360, 372 (1964) (citation omitted).
16. Courts sometimes assert that a few mild incidents won't rise to the
level of harassment, though much depends on the particular incident and
the particular court. 17. Turner v. Barr, 806 F. Supp. 1025, 1029 (D.D.C. 1992).
18. Snell v. Suffolk County, 611 F. Supp. 521, 531-32 (E.D.N.Y.
1985).
19. Harris v. International Paper Co., 765 F. Supp. 1509, 1527 (D.
Me. 1991).
20. Sue Morem, 21. Geanne P. Rosenberg, 22. U.S. Dep't of Labor, 23. Maryland Commission on Human Relations, 25. 84 F.3d 191, 194 n.6 (5th Cir. 1996).
27. 50 Cal. App. 4th 28, 53 Cal. Rptr. 2d 599, 29. Cases are not, of course, precedents for issues they haven't
considered. Waters v. Churchill, 511 U.S. 661, 678 (1994) (plurality);
30. 505 U.S. 377, 389-90 (1992).
32. It's black-letter First Amendment law that even civil lawsuits based
on speech implicate the First Amendment. 33. The Court has recognized the distinction between what a private
employer can do to the employee and what the government can force the
employer to do. 34. Hudgens v. NLRB, 424 U.S. 507, 513 (1976).
38. Pickering v. Board of Educ., 391 U.S. 563, 568 (1968).
40. See, among very many cases, Pacific Gas & Elec. Co. v. Public
Util. Comm'n, 475 U.S. 1,20 (1986) ("[f]or a time, place, or manner
regulation to be valid, it must be neutral as to the content of the speech");
Consolidated Edison Co. v. Public Serv. Comm'n, 447 U.S. 530, 536
(1980) ("a constitutionally permissible time, place, or manner restriction
may not be based upon either the content or subject matter of speech").
42. City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 48 (1986)
(emphasis and internal quotation marks omitted).
43. Boos v. Barry, 485 U.S. 312, 321 (1988); 49. Carey v. Brown, 447 U.S. 455, 470-71 (1980).
52. This issue was decided in But the Court reversed. Violence, it held, was indeed constitutionally unprotected;
but much of the other behavior--including threats of social ostracism--was constitutionally
protected speech. And because the "nonviolent elements . . . are entitled to the protection
of the First Amendment," they did not lose this protection just because of the presence of
unprotected behavior. While the plaintiffs were entitled to sue based only on the
unprotected behavior, they couldn't sue based on a combination of the unprotected behavior
and the protected speech. See also Street v. New York, 394 U.S. 576, 590 (1969);
http://www.law.ucla.edu/faculty/volokh/harass/proc.htm#PART (discussing this in detail).
See supra text accompanying notes 13 and 14;
http://www.law.ucla.edu/faculty/volokh/harass/substanc.htm#EVERYPLACE.
See http://www.law.ucla.edu/faculty/volokh/harass/substanc.htm#PATRON.
See supra text accompanying note 14.
56. NLRB v. Gissel Packing Co., 395 U.S. 575, 618 (1969), made
clear that workplace speech is generally protected by the Free Speech
clause so long as the speech doesn't contain a "threat of reprisal or
promise of benefit" by the employer or a union.
57. Rowan v. Post Office Dept, 397 U.S. 728, 738 (1970) ("no one has
a right to press even `good' ideas on an unwilling recipient").
59. Rowan v. Post Office Dep't, 397 U.S. 728 (1970).
62. Under 64. Rosenbloom v. Metromedia Inc., 403 U.S. 29, 51-52 (1971);
People v. Mitchell Bros.' Santa Ana Theater, 180 Cal. Rptr. 728 (Cal. Ct.
App. 1982).
65. Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974). 66. Braun v. Soldier of Fortune Magazine, Inc., 814 F.2d 1017, 1021
(5th Cir. 1987); Yakubowicz v. Paramount Pictures Corp., 536 N.E.2d
1067, 1071 (Mass. 1989); |