Freedom of Speech vs. Workplace Harassment

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

Freedom of Speech vs. Workplace Harassment


Dear Eugene:


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.


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.



Don’t Worry, Obama Isn’t Sending U.S. Troops to Fight ISIS

But the next president might. 

The Extraordinary Amicus Brief That Attempts to Explain the Wu-Tang Clan to the Supreme Court Justices

Amazon Is Officially a Gadget Company. Here Are Its Six New Devices.

The Human Need to Find Connections in Everything

It’s the source of creativity and delusions. It can harm us more than it helps us.

How Much Should You Loathe NFL Commissioner Roger Goodell?

Here are the facts.

Altered State

The Plight of the Pre-Legalization Marijuana Offender

What should happen to weed users and dealers busted before the stuff was legal?

Surprise! The Women Hired to Fix the NFL Think the NFL Is Just Great.

You Shouldn’t Spank Anyone but Your Consensual Sex Partner

Sept. 17 2014 5:10 PM The Most Awkward Scenario in Which a Man Can Hold a Door for a Woman
  News & Politics
Altered State
Sept. 17 2014 11:51 PM The Plight of the Pre-Legalization Marijuana Offender What should happen to weed users and dealers busted before the stuff was legal?
Business Insider
Sept. 17 2014 1:36 PM Nate Silver Versus Princeton Professor: Who Has the Right Models?
Dear Prudence
Sept. 18 2014 6:00 AM All Shook Up My 11-year-old has been exploring herself with my “back massager.” Should I stop her?
  Double X
The XX Factor
Sept. 17 2014 6:14 PM Today in Gender Gaps: Biking
  Slate Plus
Slate Fare
Sept. 17 2014 9:37 AM Is Slate Too Liberal?  A members-only open thread.
Brow Beat
Sept. 17 2014 8:25 PM A New Song and Music Video From Angel Olsen, Indie’s Next Big Thing
Future Tense
Sept. 17 2014 9:00 PM Amazon Is Now a Gadget Company
  Health & Science
Bad Astronomy
Sept. 18 2014 7:30 AM Red and Green Ghosts Haunt the Stormy Night
Sports Nut
Sept. 17 2014 3:51 PM NFL Jerk Watch: Roger Goodell How much should you loathe the pro football commissioner?