The New Republic | June 23, 1997
SONYA McIntyre-Handy, a Unitarian, felt hounded by Christians at work. Her colleagues at a Virginia state social-service agency conducted a prayer session around her desk, complete with raised hands and speaking in tongues; they left a "letter from Jesus" on her desk. Her supervisors, she claimed, asked her to take part in Christmas activities, told her that if she had been saved she would not be getting a divorce, and said that they feared she would go to hell. "That was highly offensive to her and she told them so, and they went right on," says her lawyer, Deborah Waters. "It went on for almost two years." According to McIntyre-Handy, her objections brought grumbling from her bosses about her negativity and troublemaking--and, she said, critical performance reviews, which she regarded as retaliatory (though her employer denied this). Finally, after filing many grievances and asking to have a third party present at her meetings with supervisors, she was discharged. She sued, and in March a federal jury awarded her $30,250 plus attorney's fees, finding that persistent proselytizing had created a "hostile environment" based on religion--a violation of Title VII of the 1964 Civil Rights Act.
Plainly, McIntyre-Handy's coworkers and supervisors behaved unprofessionally and obnoxiously. But illegally? How much office proselytizing, then, is too much? I asked Waters, and she said, "I think it means that, once an employee objects, co-employees and supervisors should back off. I think it means they need to stop the discussions." Altogether? Anything about religion? "If an employer wants to be on the safe side, I would argue yes."
In most walks of life, of course, talking about your religion is what First Amendment lawyers call core protected speech. So is displaying art (if it's not obscene), expressing sexist opinions and telling ethnic jokes. But quietly, gradually, the workplace has become an exception. What the government cannot do directly, it now requires employers to do in its stead: police "discriminatory" speech.
In 1995, the city of Murfreesboro, Tennessee, exhibited works by Maxine Henderson, a local artist, in the city hall rotunda. One painting--impressionistic, not remotely scatological--showed a partially clad female whose left nipple was partly exposed. An assistant school superintendent filed a workplace-harassment complaint, saying she had the right not to have "thrust in my face on my way into a meeting with my superiors, most of whom are men," art that she found "very offensive and degrading to me as a woman." The city attorney took the painting down and stashed it in his closet. "You really can't be too cautious, " he told reporters. "A sexual harassment judgment usually has six zeros behind it." (Henderson recently won a First Amendment case challenging the removal, but only because the court decided that the city hall rotunda was not actually a workplace.)
The country's most notorious sexual harassment case is that of Paula Jones against President Clinton, which the Supreme Court has unanimously ruled may proceed to trial. Most of the attention directed to Jones's case has, understandably, concerned itself with questions of effect on the Clinton presidency and on the presidency in general. But the case is also noteworthy as another milestone in the expansion of what constitutes a tortious sexual offense. As Jeffrey Rosen wrote in this magazine, assuming Jones's account of the facts is accurate, Clinton "made a pass at her, took no for an answer and reassured her that he meant her no harm." In the court of public opinion, Jones's case has already elevated an admittedly gross (alleged) sexual overture into a federal civil rights violation, and it may do this in a court of law as well. The case, Rosen notes, "shows how dramatically our increasingly amorphous conception of sexual harassment has expanded in the past decade." Indeed, in practice, virtually any sex-related expression involving employees and bosses of opposite sexes has become legally hazardous. President Clinton is merely the latest to discover that boorishness has become actionable under law.
SOME of the cases of workplace behavior defined as sexual harassment are so ludicrous that they have become mildly famous. At the University of Nebraska at Lincoln, a harassment complaint was filed because a graduate student kept on his desk a snapshot of his wife in a bikini; the university ordered the photo removed. Penn State removed a painting by Goya from a classroom after a professor complained that it constituted sexual harassment. When a Minnesota public-library worker posted, in his own work area, a New Yorker cartoon making wry reference to the Bobbitt case (one fully dressed man says to another, "What's the big deal? I lopped off my own damn penis years ago"), coworkers lodged a harassment complaint, and supervisors ordered the cartoon removed.
But workplace-harassment law reaches much further and covers much more than isolated examples of silliness about sex, an area that particularly lends itself to overreaction. In one case, which was settled "for undisclosed monetary terms and other commitments" before trial, the Equal Employment Opportunity Commission (EEOC) charged a company with harassing a Japanese-American worker by using images of samurai, kabuki and sumo wrestling to depict its Japanese competitors in an ad campaign, as well as by referring to competitors (but not employees) as "Japs" and "slant-eyed" in internal reports. A federal court has held that an employee's display, in her own cubicle, of pictures of the Ayatollah Khomeini and a burning American flag was "national-origin harassment" of an Iranian employee who saw the pictures. In 1992, the Office of Federal Contract Compliance Programs characterized anti-veteran postings by faculty members as workplace harassment based on Vietnam-era veteran status.
Surely, if any area of speech is constitutionally protected, it is the right to discuss religion and to proselytize. Yet a Pennsylvania court held that an employer's printing Bible verses on paychecks, and religious articles in the company newsletter, constituted religious harassment of non-Christian workers. In Oregon, a state agency found that a plaintiff was religiously harassed because a Seventh-Day Adventist talked constantly about religion with everyone in the office. Seventh-Day Adventism's "pessimistic doomsday outlook," the agency noted, depressed the plaintiff.
No one denies that people sometimes say ugly things to each other at work, and that campaigns of vilification against women, blacks or other minorities (or non-minorities) sometimes happen. But in the workplace, where we spend more time than anywhere but our homes, the law has come to accept a doctrine that some minority activists have tried, but failed, to embody in college speech codes and First Amendment law outside the workplace: that purportedly bigoted or offensive speech is itself a form of illegal discrimination. So, to get rid of discrimination, you have to get rid of discriminatory speech--a project which is now under way. Walter K. Olson, in his new book The Excuse Factory, notes that just between 1989 and 1993 the number of harassment charges filed with the eeoc more than doubled, from 5,600 to 11,900. Only about 5 percent of the claims involved demands for sexual favors or the like; the rest alleged "hostile environments." Slippery slopes may be more common in rhetoric than in reality, but plainly the law is now on one.
Recently a few legal scholars, such as UCLA's Eugene Volokh (to whom I am indebted), have begun asking hard questions about discrimination law and free speech, and how to contain the corrosive effects of the one upon the other. But the hostile-environment rule is like an acid that eats through any container you put it into. A better idea is to repudiate it, since it is now the country's most virulent threat to free speech.
THE most peculiar thing about workplace-harassment law is not that it has turned the First Amendment on its head, but that it has done so without even trying. Generations of would-be censors--opponents of pornography, sedition, evolutionism, hate-speech, flag-burning, Klan rallies--have charged the First Amendment head-on and broken their necks. But opponents of discriminatory speech, who never paid much attention to the First Amendment, have sleepwalked right past it. At no point, right up to the present, did the courts and government agencies step back and weigh the free-speech implications of what they were doing. They just went step by step.
They started from a sound intuition. If laws against job discrimination are a good thing, what about workplaces where racists or sexists use their mouths to drive minorities or women away? Employers should, of their own accord, demand civility on the job. Most of them do. But some don't. For instance, in a 1985 case, Snell v. Suffolk County, white corrections officers used demeaning epithets against their minority colleagues, posted vicious cartoons and images ("Official Runnin' Nigger Target"), mimicked minority stereotypes, and so on. When a Hispanic officer complained, his car was vandalized, he received vicious phone calls at home at all hours, and white officers were so slow reacting to his distress calls that he was assaulted.
Now, the first thing to notice here is that, as in most cases of pervasive harassment, speech was commingled with punishable conduct: threats (which are not constitutionally protected), discriminatory treatment, misfeasance, vandalism, and so on. But speech was unquestionably part of the problem; plainly, the place was full of racists. It seemed natural, then, for the judge to go further than, say, demanding a halt to discriminatory practices, or granting compensation to the abused officers. He imposed a speech code. The employer, he decreed, must forbid corrections officers from using racial epithets on county property, posting or distributing "derogatory bulletins, cartoons, and other written material," to mimic minority stereotypes, and using "any racial, ethnic, or religious slurs, whether in the form of jokes, ' jests,' or otherwise." Even a single "joke, jest, or otherwise" would require "prompt and severe discipline."
But wait a minute. The Snell injunction traduces more or less every known principle of First Amendment law. It bars speech that is not libelous, obscene, threatening or otherwise outside First Amendment bounds. It uses prior restraints to do so. It engages in viewpoint discrimination, barring only speech deemed to bear a discriminatory message. Its terms are extremely vague ("other written material," "or otherwise"). It creates unbounded peril, so that even one private critical remark is hazardous. It doesn't even require that punishable jokes actually bother anybody.
In none of those respects was the Snell judgment unique. Another injunction, for instance, required an employer to forbid "any and all offensive conduct and speech implicating considerations of race." One court ordered an employer and its workers to "refrain from any racial, religious, ethnic, or other remarks or slurs contrary to their fellow employees' religious beliefs." Another required a company to stop its employees from even bringing to work " materials that are in any way sexually revealing, sexually suggestive, sexually demeaning, or pornographic"--on pain of "suspension or discharge upon the second proven offense." That language is so broad as to prohibit, for instance, a book containing Renaissance nudes--though, come to think of it, Renaissance nudes could be used for offensive purposes. Outside the workplace, such injunctions would be unthinkable. Inside the workplace, they are applied literally without a second thought.
AS it turns out, Title VII of the 1964 Civil Rights Act says nothing about speech. It forbids employers "to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." Much like affirmative action, hostile-environment law grew obliquely from a series of decisions by courts and administrative agencies in the 1970s and 1980s, each building on the last but none stepping back to view the bigger picture. As it has evolved, the standard holds employers accountable for preventing speech that is:
"severe or pervasive" enough
to create a "hostile or abusive work environment"
based on minority status (race, sex, national origin, religion, age, disability, and so on)
for the plaintiff and for a reasonable person.
From a common-sense point of view, that seems a fairly unalarming definition. Admittedly, "hostile or abusive" is vague, and "for the plaintiff and for a reasonable person" puts the listener and the public authorities in a position to veto speech that they don't like. But "severe or pervasive" seems comforting. Plainly, the definition isn't aimed at the odd racist joke, or the desktop picture of a bikini-clad spouse, or an impressionistic painting hanging in city hall. So why are courts banning any and all " derogatory written material," pervasive or not? Why was Maxine Henderson's painting removed from the Murfreesboro city hall?
Here we encounter a nasty surprise. What looks like a clear limiting principle isn't. "Severe or pervasive" gives defendants a fighting chance in court. But it doesn't do something that is, in the real world, more important: tell them how to stay out of court.
Imagine that a stranger showed you a ticking box labeled "bomb" and said it might or might not be a clock. Do you open it? Now suppose your lawyer told you that your employees' speech might or might not embroil you in a potentially debilitating lawsuit. "Employers are not interested in winning lawsuits," says Michael J. Lotito, an employment lawyer with the firm of Jackson Lewis in San Francisco. "They are interested in making sure that lawsuits are never filed." The only way to do that is to stay on the right side of the law's bright lines. But, in hostile-environment law, there are no bright lines. Sensitivity trainers and diversity consultants often encourage workers to be thin-skinned, and plaintiffs build their lawsuits from particular instances of "harassing" speech, each of which they can cite to establish a "hostile environment." And employers know it. As Volokh points out, employers can't tell workers, "Say nothing such that the cumulative effect of your and all other workers' comments rise to a level that is severe or pervasive." They have to tell the employees to say nothing that might look to a jury like a "hostile environment." And judges can't say, "From now on, forestall the first incremental Holocaust joke that creates a hostile environment for a reasonable Jew." They have to say: no more religious jokes. The policy is driven by its logic to say: when in doubt, shut up.
Which, as Volokh notes, is exactly what employment experts advise. " Suggestive joking of any kind simply must not be tolerated," writes one. Another writes, "To avoid liability, the prudent employer will proscribe all speech and conduct that may constitute harassment. The possibility of creating a chilling effect' from prohibiting speech and conduct that may constitute harassment is outweighed by the risk of significant liability." The relevant authorities agree. In a pamphlet called "Preventing Sexual Harassment--A Fact Sheet for Employees," the Maryland Commission on Human Relations notes that a "sexually hostile work environment" can be created by discussing sexual activities, telling off-color jokes, using "demeaning or inappropriate terms" (whatever those are), or using crude and offensive language (whatever that is). And then, with admirable if creepy candor, it advises, "Because the legal boundaries are so poorly marked, the best course of action is to avoid all sexually offensive conduct in the workplace." Note that "conduct" has been stretched to cover pure speech of the sort that, outside the workplace, would enjoy unquestioned First Amendment protection.
So, when the Murfreesboro city attorney summarily took down Maxine Henderson's painting, he wasn't indulging paranoid fantasies or bluenose obsessions. He was doing the prudent thing. Dozens, maybe hundreds, of city workers walked past Henderson's semi-nude in the course of doing their jobs. Wasn't that "pervasive"?
STILL, the doctrine includes what seems to be another sensible limit: it applies only to the "work environment." And maybe workplaces should be treated differently. After all, jobs are hard to come by, and most of us need to have one. Employees can't easily avoid colleagues' racist, sexist or otherwise offensive speech. In that respect, aren't workers a captive audience?
Maybe so. But if listeners are captive at work, then so are speakers, and they can hardly be asked to accept government gag orders by taking a job. Moreover, in the legal sense, which is narrower than the colloquial one, the workplace is not "captive" at all. The Supreme Court has consistently refused to extend the "captive audience" doctrine beyond the home, for the sound reason that life is full of places where we have little choice but to be, and full of speech we can't help but hear. Passersby can't avoid seeing "Fuck the Draft" written on a man's jacket, Times Square commuters can't avoid seeing a Calvin Klein underwear billboard, workers can't avoid hearing picketers every day calling them "scab" or "ugly bitch," and people with school-board business can't avoid hearing a speaker who uses the word "motherfucker" at a school-board meeting. But all of that speech, including "ugly bitch," is protected. In fact, even where the listener really is captive (at home), the Supreme Court still won't allow speech restrictions that favor one viewpoint over another, as restrictions on "discriminatory" speech clearly do.
So the "captive audience" argument actually doesn't help much, at least not where the Supreme Court is concerned. Still, an intuition nags. Surely going to work five days a week, sitting or standing next to the same bigot every day, is at least somewhat different from passing a billboard or hearing a foulmouthed school-board harangue. So maybe the Supreme Court should make an exception for the workplace. Maybe the limiting principle should be: restrict offensive, discriminatory speech in the workplace, but only there. But here arises nasty surprise number two. Not only is the "workplace only" rule ineffective as a principle for limiting the hostile-environment doctrine, it's actually a principle for transmitting it, in concentric circles, all through American life.
After all, everywhere is somebody's workplace--restaurants, shops, churches, streets, parks, even many homes. In 1991, a waitress at a diner in Berkeley refused to serve a journalist who was reading Playboy, on the grounds that this was sexual harassment. Better not laugh at her. Suppose a restaurant's regular patron customarily wears a cap with a Confederate flag on it, and a black waitress objects. Or suppose he likes to declaim, both to and around the waitresses, about the stupidity of women, or the waitress's beautiful breasts, or whatever. That's a "hostile environment." What do you do if you're the restaurant owner? "You may not think it's a big deal, but it's a big deal to the employee," says Scott W. Kezman, an employment lawyer with Kaufman & Canoles in Norfolk, Virginia. "The safest thing you can do as an employer is to take some type of action." This may mean asking the customer not to wear the cap, or not to make sexist remarks. If all else fails, advise Kezman and two coauthors in a December article in a human-relations trade publication, "managers need to learn what they can do to stop offenders-- remove them or permanently bar them from the premises."
This is not idle advice. A Las Vegas dealer filed a sexual harassment suit against her casino for failing to take action against customers who, she alleged, stared at her and yelled about her "great tits." Federal Express was sued by a courier for failing to act against a customer on her route who repeatedly demanded dates, stared and said she would look better with her clothes off. Under this theory (and application) of the law, employers become the state's agents for policing the speech not only of their workers but of their customers.
What about universities? They're workplaces, too. Federal courts have been fairly diligent about rejecting speech codes at public universities, on the grounds that the typically vague and overbroad codes violate students' First Amendment rights. But lately a new wrinkle has arisen: proponents are arguing that workplace harassment law requires speech codes. When the Kansas Board of Regents asked for an opinion last year on its racial and sexual harassment policies, the state attorney general noted, reasonably, that the courts routinely uphold--indeed require--broad speech codes in the workplace, so they ought, in the name of consistency, to uphold them in educational settings as well. And he went further: if a student commits a racially motivated crime, requiring him to "undergo racial sensitivity training in addition to the provided penalty" may be a good way "to avoid ... liability under the hostile environment' formulation." So mandatory re-education for racists (meaning, of course, for individuals accused of racism), far from being constitutionally suspect, may be the best protection from a federal lawsuit!
FORGET, then, about limiting the hostile-environment doctrine "only" to the workplace. Yet common sense still tugs at our coat-sleeves. Isn't there some way to punish foulmouthed bigots in the office without giving a speech-veto to the most sensitive pair of ears on the premises? Instead of looking for firm limits where none exists--well, how about just reasonableness? But here is the third and biggest nasty surprise. However benign it looks on the outside, the hostile-environment doctrine contains a savage seed, one that undercuts the very legitimacy of the First Amendment.
In the 1980s, a variety of left-leaning academics began talking about " words that wound." Racist, sexist, anti-Semitic or homophobic speech was inherently hurtful to the listener, no less wounding than knives or fists. " To me," said one law professor, "racial epithets are not speech. They are bullets." Another wrote: "we are not safe when these violent words are among us." Other voices pointed out that a campus, or for that matter a country, tainted by discriminatory words can hardly be free of discrimination. "All racist speech constructs the social reality that constrains the liberty of nonwhites because of their race," wrote Charles R. Lawrence III, now a law professor at Georgetown University.
The trouble was that "words that wound" turned out to be whatever words an offended interest group could convince an administrator to punish. In an infamous incident at the University of Pennsylvania, several students were able to initiate racial harassment proceedings against a student who called them "water buffalo" late one night when they stamped and bellowed under his window. At the University of Michigan, a student was disciplined for saying, in a classroom discussion, that homosexuality is a disease treatable with therapy. And there was a conceptual problem, as well: quite deliberately, the equation of discriminatory words with discrimination, of racist talk with racist action, erased the line between speech and conduct. Admittedly, the line is sometimes hard to find. But erase it in principle, and all words are indeed bullets, and First Amendment protections are positively immoral.
Consider, in that context, the hostile-environment doctrine. Plainly, mere words, even mere ideas, can create a "hostile environment." In fact, it happens all the time. Under the hostile-environment doctrine, much as under the "words that wound" doctrine, bad words are bad deeds: discriminatory talk is just another form of discrimination. And the government is obliged by law to eliminate discrimination wherever it can.
It was presumably this logic which, in 1988, led the 6th U.S. Circuit Court of Appeals to declare in Davis v. Monsanto Chemical Company: "While Title VII does not require an employer to fire all Archie Bunkers' in its employ, the law does require that an employer take prompt action to prevent such bigots from expressing their opinions in a way that abuses or offends their coworkers. By informing people that the expression of racist or sexist attitudes in public is unacceptable, people may eventually learn that such views are undesirable in private, as well. Thus Title VII may advance the goal of eliminating prejudices and biases in our society."
This is an astonishing, profoundly radical, statement. It says that it is the proper work of the state to stamp out "unacceptable" attitudes privately held by citizens, and that workplace law is a wonderful tool for accomplishing this. It makes explicit what the hostile-environment doctrine implies: that silencing obnoxious racists and sexists and so on is not just a by-product of antidiscrimination policy, but a goal. There is just no way to square any such goal with the central premise of free speech, which is that the only legitimate way in which the state may seek to eliminate biases in society is to allow an environment where biases are pitted freely against each other.
The 1988 decision was not merely loose talk by one misguided court. It was an expression of a doctrine that is now being widely applied. In 1994, the Kentucky Commission on Human Rights wrote to South Central Bell, explaining that the company's "Men Working" signs were discriminatory. The company replied that the signs would be replaced as they were retired. No, retorted the commission's managing attorney--the law requires prompt remedial action. Not later--now. "I feel confident," she said, "that if your signs included any other protected class, such as Whites Working' or Women Working,' they would be immediately removed and not utilized or replaced. Since we have been unable to resolve this problem through informal means, I am recommending that a Commissioner-initiated complaint be filed." The company, understandably, caved.
Now, no one, neither workers nor passersby, had complained about the company's "sexist" signs. A Bell South Kentucky spokeswoman says that if anyone had complained, the company would have begun phasing out the signs of its own accord. "It's important to us that our employees feel comfortable at work, and that our customers not feel offended," she says. Replacing hundreds of signs immediately, under threat of legal action, cost upwards of $36,000.
COST, of course, is the least of the issues here. The bigger problem is that the law has given up any pretense of viewpoint neutrality. Instead it is openly, indeed eagerly, suppressing incorrect thinking, not in confined quarters but in a public street. What a mess this makes of traditional free- speech protections. The First Amendment is supposed to require the government to tolerate the expression of all sorts of beliefs without coercively favoring one over another. The new approach to workplace harassment turns the state's role precisely upside down. Wherever people work--which is practically everywhere--the "hostile environment" rule places the state squarely in the role of judging and enforcing which beliefs or prejudices or even conventions of language are acceptable and which are not, and which may be uttered and which may not. No one even bothers to pretend that hostile- environment law is meant to give racists or sexists a fair shake. "Dozens of reported cases involve liability claims based on antifeminist statements that are frequently not at all obscene but often highly political and analytic in content," writes Olson; "an exhaustive search fails to uncover a single case in which feminist assertions have been ruled to contribute to a hostile environment." One court has said that workers' use of job titles like " foreman" and "draftsman" may constitute harassment. This is not about stopping "harassment," in any traditional sense; it is about suppressing speech to impose an egalitarian orthodoxy. In 1994, a jury slapped a $500,000 judgment on a Washington, D.C., television station because, as one juror told The Washington Post, managers "seemed to feel it was partly okay to make jokes about women" (for example, a production manager complained that "Nazi feminists" wouldn't let him smoke a cigar). A few years ago, when The Los Angeles Times proposed an internal speech code barring use of "offensive" terms such as "gyp" and "Dutch treat," the idea was hooted down in a barrage of ridicule. But when discrimination law does the same thing, no one laughs; increasingly, no one even notices.
For that matter, if the goal is to stamp out "hostile environments," why just the workplace? After all, a hostile educational environment is illegal under federal law; in 1994, the Education Department's civil-rights office concluded that some sexist remarks posted on a college-run electronic bulletin board created a "hostile environment on the basis of sex" (even though the complainants had not actually read them). The law also forbids discrimination in public accommodations. Are hotels creating "hostile public accommodations" for Muslims by putting Gideon Bibles in their drawers? Are public museums harassing women by displaying nudes? Nadine Strossen, president of the American Civil Liberties Union, points out that artwork has been removed from classrooms, city halls and public galleries on sex- harassment grounds--including art by female artists and with feminist themes. A Wisconsin state agency decided that an overheard, though loud, restaurant conversation using the word "nigger" created an illegal hostile public accommodation for black customers. Even the Internet may be a kind of public accommodation. Why not bar discriminatory speech there? Equating discriminatory speech with discrimination obliterates the very concept of an expressive zone where prosecutors, plaintiffs and equal-opportunity agencies can't try to censor whatever they regard as bigotry or sexism.
THERE aren't a lot of alternatives. One, of course, is to declare that ending discrimination is more important than the First Amendment, so there should be no right to expression deemed racist or sexist. That would end freedom of speech as we know it.
Another is to confess--as, for instance, the ACLU's Strossen does--that the First Amendment and the hostile-environment doctrine are in conflict with each other, but to say that nothing much can be done about this, so we'll just have to muddle ahead without any clear lines. "Protected expression can be distinguished from proscribable harassment only on a contextual basis, turning on the facts and circumstances of each particular case," writes Strossen. That, however, is exactly the current non-rule, and the whole problem is that employers, unsure what the judge or jury will decide, repress anything that looks dangerous if anybody complains.
A third alternative is more promising. The law should stipulate, argues UCLA's Volokh, that hostileenvironment "harassment" occurs only when discriminatory speech is targeted at an individual in one-on-one conversation, when the individual has given notice that she objects, and when the speech is repeated often enough to rise to the level of pervasiveness. Overheard comments, group conversations and cartoons posted for general viewing wouldn't count.
Make no mistake, Volokh's rule would be an improvement over current law. By bringing the law into line with what most people mean when they use the word " harassment"--targeted vilification--it puts some sensible bounds on the reach of the hostile-environment doctrine. But the notion of a listener's veto, even if limited to one-on-one conversation, remains deeply troubling. What about cases where two employees work together: Does one get to shut up the other? And how would you confine Volokh's principle to the workplace, since, as he himself points out, the workplace is everywhere? Although Volokh's idea limits the listener's veto to groups of two, it nonetheless cedes the principle that individuals have a legal right to censor speech they find disagreeable, as they define disagreeable. It also cedes that the government can pick and choose which opinions to suppress. Those are awfully big concessions.
So another possibility remains: extend First Amendment protection to workplace speech. Just say that if the First Amendment is good enough for everywhere else, it's good enough for the workplace. The hostile-environment doctrine would be effectively abolished.
At first glance, this seems to leave minorities high and dry when surrounded by bigots at work. But that isn't so. Discriminatory actions--in hiring, firing, pay, promotion and so on--would still be illegal. So would quid-pro-quo harassment, in which supervisors demand, say, sexual favors or religious obeisances from employees. So would threats, obscenity and slander, which the First Amendment doesn't protect. Remember, most cases of genuinely pervasive verbal harassment directed at minorities, like the Snell case described at the beginning of this article, involve patterns of behavior, not just speech. In fact, the more damaging objection to abolishing the hostile-environment doctrine is that doing so might not make enough of a difference. Since racist speech could still be used in court to establish discriminatory treatment, employers would still probably err on the side of squelching it. A boss who admires his assistant's legs would still need to worry about a jury's finding that he was trying to get sex from her.
Still, the principle would be established that the First Amendment does not crumble into dust at the office door. The courts would have to stop ordering speech codes. Employers could force judges and juries to weigh First Amendment concerns rather than just ignore them. Most important, the barrier between discriminatory speech and discriminatory action would be restored.
OKAY, but what about the problem that the whole story began with? What about workers who use their mouths to make women and minorities feel unwelcome or beset? It does happen. In one case, twelve Hispanic rental-car workers brought suit because their manager consistently used racial epithets and insults--what a court described as "a continual barrage of opprobrious racist invective"--in addressing them. The court issued an injunction against the manager, prohibiting him pre-emptively from "using any derogatory racial or ethnic epithets directed at, or descriptive of, Hispanic/Latino employees." What are we to do if this manager's speech, absent other discriminatory activity, is legally protected?
This is the hardest test case for my position, and I don't claim to have an easy answer. But my not-easy answer is this: here we face a decision about what sort of society we want. As this article has tried to show, there is no way to prevent workplace offense that does not also quickly lead to broad repression of speech. And I think minorities, like majorities, are better off in a country where their right to speak freely is inviolate, or as close to inviolate as possible. Recall that hostile-environment law tends to repress any and all speech around an offensive subject (such as conversation about religion in a workplace where proselytization has become a harassment issue). The end result is to chill, or cut off, frank discussion of race, sex or religion. "What we've become is a very, very sterile kind of environment in the workplace," says Lotito. "Everything has to be job-related. We have made people so afraid of basic human interaction." The New York Times reports that, after four hours of mandatory sensitivity training, New York sanitation workers concluded that "the only way to stay out of trouble was to avoid the women." Is a constipated workplace in minorities' interest? Or is it possible that, even at work, the frank exchange of views can bring understanding even, at times, to bigots?
The argument I'm making here isn't a comforting one, but it's the argument that has underpinned free-speech theory for centuries. In a free society, everyone, male or female, white or black, has a positive responsibility to be thick-skinned. Activists who insist that personal offense is a cause for public action are a menace to the freedom of conscience that protects minorities above all. So if you care about freedom of expression, then you will have to put up with hearing some deeply objectionable, even monstrous things, sometimes on a daily basis. No doubt minorities will get more than their share. Jews will have to hear Holocaust deniers. Blacks will have to hear racists. Women will have to hear their "hooters" praised. But the white heterosexual male population will come in for its share of insults, too; indeed, in many of today's diversified and minority-sensitive workplaces, white men may also get more than their share. And, anyway, it should not be illegal to be a jerk.
WHAT I'm proposing isn't radical. I'm only asking that legally designated minorities live under the same free-speech principles that other people live with right now: fat people, short people, ugly people, unpopular people. And I do know something about this. I am homosexual, and, in most jurisdictions, homosexuals are not a protected class. We have no legal recourse against " faggot" or "queer" or other, more insidious forms of disparagement on the job. Gay people deal with it as people always have: by combining humor, stoicism, courage and appeals to the better nature of those around us. That is not always good enough, but is the law better? Where "sexual orientation" is a protected category, a complaining heterosexual might claim she was being " harassed" by a gay colleague who openly discussed his homosexuality. If that sounds far-fetched, please note: it has happened! In 1990, a plaintiff alleged that her supervisor harassed her by "repeatedly speaking to her about his alleged homosexuality and trying to draw her into conversation on the topic of sexual preference." That particular claim ran aground on a side issue. But there will be more like it.
I personally have never been vilified at work on grounds of homosexuality, or any other grounds. So perhaps the case I make is easier for me than for others. But I do not think that joke police and state-imposed speech codes can be the answer.
