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EUGENE VOLOKH* The first step in evaluating a speech restriction is figuring out exactly what it restricts. The debate about the constitutionality of "hostile work environment" harassment law is in large part a debate about this. If harassment law bans only hard-core pornography, personal slurs, and repeated indecent propositions, people might have one view about it. If, on the other hand, it restricts political and religious statements, prints of Francisco de Goya paintings, sexually themed (perhaps not even misogynistic) jokes, and the like, people's views might be quite different. Some might condemn the law in either event, and some might approve of it in either event, but for quite a few people the decision may be influenced by the law's scope. I'm deeply flattered that Professor Epstein chose to respond to my article on freedom of speech and workplace harassment.1 We disagree on many points, but I very much respect her contribution to the literature. With her article and some of the others that have recently been written on this subject, the various First Amendment doctrinal arguments have finally been fully aired.2 Likewise, the harms that harassing speech can cause have been amply discussed. I doubt that it would be useful for me to go over all this ground again here.3 Instead, I want to focus briefly on the one area to which (perhaps surprisingly) a little less attention has been paid: Exactly what speech does "hostile work environment" harassment law restrict? I. POLITICAL, ARTISTIC, RELIGIOUS, AND SOCIALLY THEMED SPEECH QUALIFIES The first place to look for an answer, of course, is the 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." 5 Under the definition, it is eminently possible for political, religious, or social commentary, or "legitimate" art, to be punished. 6 "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. 7 This would be even more true of bigoted or insensitive remarks about minority or female political candidates. 8 Many reasonable people might view strident denunciations of Catholicism, whether political or religious, as creating a hostile environment for devout Catholics. 9 A reasonable person who believes that pinups "encourag[e] men to view [women] as sex objects"10 might say something like the following, even about classical paintings: 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."14 Likewise, one court has said that coworkers' use of job titles such as "foreman" and "draftsman" may constitute sexual harassment,15 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."16 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.17 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:
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. 19 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."20 The court ultimately held that "every incident reported by [plaintiff]"--the jokes as well as the other conduct--"involves sexual harassment."21 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.22 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 Professor Epstein 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.23 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.24 "Severe," "pervasive," "hostile," and "abusive" are mushy terms. 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."
When we judge a rule, we can't judge it simply by how we would apply it ourselves. We must judge it by how we might expect it to be applied 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. STEERING WIDE OF THE UNLAWFUL ZONE
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/veteran status/sexual orientation/marital status]. 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.25 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.26 The rational response is suppression, even if the lawyer personally believes that the speech probably doesn't reach the severe-or-pervasive threshold.27 If one takes at all seriously what the Supreme Court has said, this 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."28 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.29 In fact, consider Professor Epstein's own suggestion to employers. 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": 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 on31--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"?32 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,"33 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.34 III.THE LAW'S EFFECT ON INDIVIDUAL STATEMENTS
We see, then, that the "severe or pervasive" requirement is too vague to provide much protection for speech, and even Professor Epstein's own proposed policy 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,35 one which prohibits any statement that, when aggregated with other statements, may lead to a hostile environment. This is what many employment experts in fact advise. One writes, in an article entitled Avoid Costly Lawsuits for Sexual Harassment: 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."37 An Employee Relations Law Journal article on religious harassment asserts:
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:
Confused about harassment?
Well, then follow [the game creator's] advice.
Likewise, consider the four policies proposed in the Practicing Law Institute's Sample Sexual Harassment Policies.40 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:
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 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.42
Employers are in fact enacting such broad policies,43 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."44 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.45 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:
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"49--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."50 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."51
Another court barred any "sexually suggestive, sexually demeaning, or pornographic"52 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.53 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."54 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.55
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.56 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.57
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,58 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."59 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.60
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;61 any such liability will deter people from engaging in the protected speech as well as the unprotected conduct.62
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:63
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.
IV. THE SPEECH THAT HARASSMENT LAW RESTRICTS
The scope of harassment law is thus molded by three facts:
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, veteran status or, in some jurisdictions, sexual orientation, marital status, political affiliation, citizenship status, 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 herself--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.65
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"66--impose in trying to avoid liability?67 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;68 but there should be no denying that the burden exists. |
* Acting Professor, UCLA Law School (volokh@law.ucla.edu). Many thanks to David Binder, Evan Caminker, Kenneth Karst, Daniel Lowenstein, Elaine Mandel, David Sklansky, Jonathan Varat, and especially the reference staff at the UCLA Law Library for their help. This article is dedicated to the memory of my teacher and colleague Julian Eule.
1. 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 (1996) (responding to Kingsley R. Browne, Title VII as Censorship: Hostile-Environment Harassment and the First Amendment, 52 Ohio St. L.J. 481 (1991) [hereinafter Browne, Title VII as Censorship] and Eugene Volokh, Comment, Freedom of Speech and Workplace Harassment, 39 UCLA L. REV. 1791 (1992). I understand that Professor Epstein is writing a rejoinder to this reply. I have not had an opportunity to see it, so readers should not interpret my failure to respond to her points as a casual dismissal of them (or as acquiescence in them).
2. See, e.g., Browne, Title VII as Censorship, supra note 1; Kingsley R. Browne, Workplace Censorship: A Response to Professor Sangree, 47 RUTGERS L. REV. 579 (1995); Cynthia Estlund, Freedom of Speech in the Workplace and the Problem of Discriminatory Harassment, 75 TEX. L. REV. (forthcoming 1997); Richard H. Fallon, Jr., Sexual Harassment, Content Neutrality, and the First Amendment Dog That Didn't Bark, 1994 SUP. CT. REV. 1; Suzanne Sangree, Title VII Prohibitions Against Hostile Environment Sexual Harassment and the First Amendment: No Collision in Sight, 47 RUTGERS L. REV. 461 (1995); Suzanne Sangree, A Reply to Professors Volokh and Browne, 47 RUTGERS L. REV. 595 (1995); Nadine Strossen, Regulating Workplace Sexual Harassment and Upholding the First Amendment--Avoiding a Collision, 37 VILL. L. REV. 757 (1992); Volokh, Freedom of Speech and Workplace Harassment, supra note 1; Eugene Volokh, How Harassment Law Restricts Free Speech, 47 RUTGERS L. REV. 563 (1995); Eugene Volokh, Thinking Ahead About Freedom of Speech and Hostile Work Environment Harassment, 17 BERKELEY J. EMP. & LABOR L. 305 (1996); cf. Eugene Volokh, Freedom of Speech and Appellate Review in Workplace Harassment Cases, 90 NW. U. L. REV. 1009 (1996) (discussing procedural requirements mandated by the Free Speech Clause in appeals of harassment cases).
3. For my views on the doctrinal questions, see generally Volokh, Freedom of Speech and Workplace Harassment, supra note 1 (arguing that some kinds of harassing speech may constitutionally be punished, though other kinds must remain constitutionally protected); Volokh, How Harassment Law Restricts Free Speech, supra note 2; Volokh, Thinking Ahead About Freedom of Speech and Hostile Work Environment Harassment, supra note 2. The latter two pieces are detailed doctrinal responses to other articles defending the constitutionality of harassment law--a genre that I think I should give a rest for now.
For my discussion of the harm that harassing speech can inflict, which I readily acknowledge can often be quite severe, see Volokh, Freedom of Speech and Workplace Harassment, supra note 1, at 1807-09, 1863-67.
4. 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).
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.
5. 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").
6. 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. I'm puzzled by Professor Epstein's assertion that "Professor Volokh[] . . . fundamental[ly] fail[s] to understand that the regulatory reach of hostile environment harassment law is generally limited to speech that occurs in the workplace." Epstein, supra note 1, at 421. She says she has "not been able to locate a single post-[Meritor Savings Bank v.] Vinson case in which extraworkplace speech was relied on to support a hostile environment claim," and she "do[es] not believe that any exist." Id. at 421 & n.128. The interested reader is referred to 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). 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. I found the cases by searching in WESTLAW for "((hostile abusive) /5 environment) & `called her at home'"; more thorough searches may find additional cases. See, e.g., 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.
7. Cf. 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.
8. 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 sources cited in Volokh, Freedom of Speech and Workplace Harassment, supra note 1, at 1802-03 n.54.
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.
10. Epstein, supra note 1, at 405.
11. 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.
12. Brown Transp. Corp. v. Commonwealth, 578 A.2d 555, 562 (Pa. Commw. Ct. 1990).
13. 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").
14. 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); see Volokh, Freedom of Speech and Workplace Harassment, supra note 1, at 1804 (describing the case in more detail); see also Peck v. Sony Music Corp., 68 Fair Empl. Prac. Cas. (BNA) 1025, 1995 WL 505653 (S.D.N.Y. Aug. 25, 1995) (concluding that a reasonable jury could find religious harassment in a pattern of religiously themed comments, which mostly consisted of statements that a person was a sinner and had to repent, and didn't include any religious slurs); 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 (giving "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"); 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).
15. 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.
16. 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.
17. 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.").
Likewise, in Ozawa v. Hyster Co., the EEOC concluded that Hyster 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." EEOC Letter of Determination, Charge No. 380863519, at 1-4. 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 comparably offensive. See, e.g., 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 . . . ."). The case was finally settled "for undisclosed monetary terms and other commitments." Hyster, EEOC Settle Lawsuit, UPI, July 5, 1990, available in LEXIS, Nexis Library, Upstat File.
18. 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.
19. 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).
21. Id. at *61. For details on more such incidents, see Volokh, Freedom of Speech and Appellate Review in Workplace Harassment Cases, supra note 2, at 1014 n.23; 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).
Consider also the pamphlet distributed by the Seattle Human Rights Department describing its functions; it 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; presumably the Seattle Human Rights Department believes the second is equally clear. 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.
22. 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.
23. Epstein, supra note 1, at 417-18. 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.
24. 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.
25. Cf. 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.
26. 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.
27. Consider the following recommendation, from 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.
Mark I. Schickman, Sexual Harassment: The Employer's Role in Prevention, COMPLEAT LAW., 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 Kandel, supra note 17, 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.").
28. Baggett v. Bullitt, 377 U.S. 360, 372 (1964) (citation omitted).
29. Cf., e.g., id. 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'").
30. Epstein, supra note 1, at 419-20.
31. I assume this because otherwise the policy wouldn't do much good in protecting the employer.
32. 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. See Volokh, Freedom of Speech and Workplace Harassment, supra note 1, at 1816-18 (discussing relevant precedents); Epstein, supra note 1, at 400 n.5 (agreeing on this point).
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.
33. Epstein, supra note 1, at 418.
34. 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 note 1, at 419? Surely not.
35. CITY of TACOMA PERSONNEL MANAGEMENT POLICY on HARRASSMENT GUIDELINES (1996) [hereinafter TACOMA GUIDELINES], quoted in full infra note 43 ("The city's policy on harassment is zero tolerance." (bold in original)); Karen Colleen Buck, Sense and Sensibilities: Where Are the Boundaries of Sexual Harassment? Recent Decisions and Methods of Preventing Liability for Claims of Sexual Harassment, METROPOLITAN CORP. COUNS., Dec. 1996, at 20 ("The three primary components of an effective prevention program to create a working environment free from sexual harassment are: 1) a clear antiharassment policy of zero tolerance . . . ."); Ways to Avoid Litigation, CREDIT WORLD, Mar.-Apr. 1996, at 17-18 ("[E]mployers should adopt a policy of `zero tolerance' for any form of discrimination, harassment or retaliation."); LEGAL INTELLIGENCER, Nov. 8, 1995, at 2 ("[A bar association] will offer a Continuing Legal Education course, "Recent Huge Jury Verdicts in Sexual Harassment Cases" . . . . Faculty will explain the changing expectations of both employees and jurors about behavior in the workplace. They will review recent case law and trends in sexual harassment cases. Discussions will focus on zero tolerance programs and other liability avoidance strategies."); see also Annette Delavallade, Confusion About Harassment Is Not Seen as a Legal Excuse, CAP. DISTRICT BUS. REV., Oct. 14, 1996 ("Managers in the '90s protect themselves and the organization for which they work by . . . requiring mandatory training for all managers and employees, to ensure zero tolerance for sexual harassment."); Stephanie D. Esters, Sex-Harassment Policies Seen Needed in Hospitals, NAT'L UNDERWRITER PROP. & CASUALTY-RISK & BENEFIT MGMT., Sept. 30, 1996 (likewise urging zero-tolerance policy); Michael Coit, Las Virgenes Water Agency Settles Bias Suit, L.A. DAILY NEWS, July 26, 1996 (mentioning agency's zero-tolerance policy); Rick Moon, Foley & Lardner Combats Sexual Harassment, 2 LAW FIRM PARTNERSHIP & BENEFIT REP. 9 (1996) (praising law firm's zero-tolerance policy).
36. 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).
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. (Consider Professor Epstein's article itself, which talks only about sexual harassment, even though the same First Amendment issues arise in the other contexts.) 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. Perry, supra note 8, 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 . . . .").
37. 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."); Geanne P. Rosenberg, Watch What You Say, or Be Ready to Pay, INVESTOR'S BUS. DAILY, Nov. 6, 1996, at A1 ("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."); see also Sue Morem, Telling Jokes in the Workplace Can Be Dangerous, MINNEAPOLIS STAR TRIB., Feb. 4, 1997, at 2D ("`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.") (discussing a sexual harassment complaint based on a sexually themed joke overheard by an offended employee).
38. Schaner & Erlemeier, supra note 14, at 7.
39. 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.
40. 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).
41. 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).
42. 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.").
43. Consider TACOMA GUIDELINES, supra note 35:
Definition of Sexual Harassment. . . .when the conduct has . . . created an intimidating, hostile or offensive work environment.Examples of prohibited sexual conduct (but not necessarily limited to):
Vulgar, inappropriate or sexual comments, jokes, stories or innuendoes;
. . . . Displaying or circulating sexually suggestive photographs, cartoons, graffiti and the like in the workplace;
. . . . The city's policy on harassment is zero tolerance.
Id. (bold in original); 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.
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.
Leanora Minai, St. Pete Beach Cracks Down on Harassment, Sexual Humor, ST. PETERSBURG TIMES, Feb. 8, 1997, at 4B (expurgation in original)
45. 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.
46. Goode, supra note 11, at 1A. The woman has one breast (including nipple) showing; for the curious, the painting is reproduced in Volokh, Thinking Ahead About Freedom of Speech and Hostile Work Environment Harassment, supra note 2, at 304.
47. Epstein, supra note 1, at 405.
48. Consider the views of the Murfreesboro City Attorney regarding 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.
Trevison, supra note 11, at 1B.
49. Turner v. Barr, 806 F. Supp. 1025, 1029 (D.D.C. 1992).
50. Snell v. Suffolk County, 611 F. Supp. 521, 531-32 (E.D.N.Y. 1985).
51. Harris v. International Paper Co., 765 F. Supp. 1509, 1527 (D. Me. 1991); see also 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"); 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).
52. Robinson v. Jacksonville Shipyards, Inc., 760 F. Supp. 1486, 1542 (M.D. Fla. 1991).
53. 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." Id. For more incidents where "legitimate" art has led to harassment claims, see, e.g., 2 PEOPLE FOR THE AMERICAN WAY, ARTISTIC FREEDOM UNDER ATTACK 29, 50, 92, 156, 214, 221 (1994); Volokh, Freedom of Speech and Appellate Review in Workplace Harassment Cases, supra note 2, at 1016 n.32; 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.
54. 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.
55. The omission of the "severe or pervasive" requirement is common in many contexts. For instance, Professor 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." Epstein, supra note 1, at 403 (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).
56. 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.
57. 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.
58. No. 91-108394-CZ (Mich. Ct. App. Apr. 10, 1995) (per curiam) (unpublished opinion).
59. Id. at 1; id. at 3 (Taylor, J., concurring in part and dissenting in part).
61. 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)).
62. 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.
63. 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).
64. 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).
65. Epstein, supra note 1, at 415 ("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.").
66. 29 C.F.R. § 1604.11(f) (1996) (the regulation covering sexual harassment).
67. 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).