Freedom of Speech vs. Workplace Harassment

E-mail debates of newsworthy topics.
Sept. 17 1997 3:30 AM

Freedom of Speech vs. Workplace Harassment

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Dear Eugene:

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There you go again, sounding the alarm that racial and sexual harassment law is infringing on the free speech rights of innocent jokesters. But you and I both know that you're only telling half the story.

Your essay is a classic example of the one-sided nature of the public debate. You focus on the Equal Employment Opportunity Commission's recently filed suit against Freddie Mac, and describe it as a case about the government forbidding workers from telling "ebonics" jokes. Sounds like a federal agency run amok.

But what about the other allegations in this case, none of which appear in your essay?

  • When workers needed to use the men's restroom or had to work in the freight elevator, they were confronted with threats painted in graffiti, reading "niggers die," and "niggers go home."

  • A manager received company mail stamped with a swastika and stating "mine your biz, bitch."

  • Employees were called "stupid nigger" and received interoffice mail saying, "You don't belong here, nigger."

  • One manager commented to an employee, "I want you to know that I am not racist because my breeder is black."

  • A human resources manager wore a "Buckwheat" T-shirt to work (a reference to a TV character that was a black stereotype).

  • Race-based derogatory e-mail messages were sent through the company's e-mail system. One of them made fun of ebonics, defining words like "FORECLOSE: If I pay alimony this month, I'll have no money for clothes."

And all of this was happening at a company where only three of 70 senior managers are African-American. Saying that this case is about the EEOC "getting away with" censoring an e-mail about ebonics is like saying the conflict in the Middle East is about different tastes in headgear.

You also neglect to note that in many of the other instances that you cite as disconcerting examples of censorship, the harasser won in court. Included in your list of situations that the courts have "categorized as harassment" are:

The case where a woman challenged use of the terms "draftsman" and "foreman," instead of "draftsperson" and "foreperson." Not only did the woman lose her case, but the court specifically noted that "the use of gender-based language and terminology shown in this record does not constitute a [legal] violation." (The case is Tunis vs. Corning Glass Works, 747 F. Supp. 951--I invite readers to look it up.)

The case about "[d]erogatory pictures of the Ayatollah Khomeini and American flags burning in Iran" (Pakizegi vs. First National Bank of Boston): But that wasn't a harassment case at all--it was an illegal-firing suit. And again, the employee who brought the suit lost.

When you decide to share only the least serious aspects of a hostile environment and imply that frivolous suits are winning in court when they're actually losing, you deprive readers of the opportunity to understand that these cases are about a conflict of fundamental rights. The First Amendment is crashing head-on into the 14th--free speech vs. equality. The depth of this conflict is obvious when you look at what's really going on in the workplace. In a typical case, supervisors and co-workers refuse to call a woman employee by her name, but instead call her "bitch," "cunt," "whore," "bimbo," or "dumb-ass woman" day after day, while referring to her male colleagues as "Bob," or "Mr. Smith."

Presenting a distorted picture of the cases may increase the persuasiveness of the free speech defense. But it also trivializes a crucial social debate by isolating it from the reality of the speech/equality conflict. I hope that we can have a more honest and nuanced discussion in these pages. I look forward to hearing from you.

Best,
Deborah

is a visiting associate professor at Georgetown University Law Center, where she is the assistant director of the Sex Discrimination Clinic.

is an acting professor of law at UCLA.

This dialogue grows out of Volokh's article "A National Speech Code From the EEOC," which is available on his Web site.

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