Freedom of Speech vs. Workplace Harassment

E-mail debates of newsworthy topics.
Sept. 23 1997 3:30 AM

Freedom of Speech vs. Workplace Harassment

VIEW ALL ENTRIES

Ebonics jokes and "Buckwheat" T-shirts are constitutionally protected speech. Death threats and (more controversially) one-to-one insults aren't.

The EEOC and Professor Epstein refuse to draw this elementary distinction. To them, threats and political statements are all potentially "harassment." If speech creates a "hostile or offensive" environment (whatever that means), it's illegal. Could be political statements, could be threats. Doesn't matter.

I do draw the distinction. As I said in my article, "The ebonics case ... also involved some threats, which are constitutionally unprotected, and some one-to-one insults, which might also be properly punishable. If the EEOC had just sued over this conduct, there would be little constitutional difficulty. But the EEOC has no business claiming that toleration of e-mailed political opinion is 'an unlawful employment practice.' "

Punish the threats and one-to-one slurs. But leave constitutionally protected speech alone.

Advertisement

On my Web site, I document case after case where courts and agencies say that political speech, social commentary, and religious proselytizing can be illegal "harassment." And when courts and agencies talk, employers listen.

Say you're a smart, cautious employer. You read about:

  • The EEOC calling ebonics jokes "racial harassment."

  • A court enjoining--on pain of criminal punishment for contempt--all "derogatory bulletins, cartoons, and other written material," and "any racial, ethnic, or religious slurs whether in the form of 'jokes,' 'jests,' or otherwise."

  • A court calling workers' use of "gender-based" words such as "draftsman" a "discriminatory ... practice," but finding no harassment liability because the employer took "prompt corrective action."

  • A discrimination case saying that "derogatory pictures of the Ayatollah Khomeini and American flags burning in Iran" would have been "harassment" had the employer not taken "immediate ... corrective action."

What do you do?

You order your employees to avoid any speech that might get you sued, that's what. You follow the advice of the Maryland Commission on Human Relations: "Because the legal boundaries are so poorly marked, the best course of action is to avoid all sexually offensive conduct in the workplace." Or you listen to an Employee Relations Law Journal article: "To avoid liability, the prudent employer will proscribe all speech and conduct that may constitute [religious] harassment. The possibility of creating a 'chilling effect' ... is outweighed by the risk of significant liability."

All sexually offensive conduct (including speech), all speech that may constitute religious harassment--chilled by harassment law.

"The First Amendment," Professor Epstein says, "is crashing head-on into the 14th Amendment here." Not at all. The Constitution doesn't crash into itself. The 14th Amendment bans discrimination by the government. The First Amendment protects speech by private individuals against government suppression. No crash.

The First Amendment is crashing into the government's desire to suppress opinions it considers evil and harmful. It's a familiar conflict. And under our Constitution, whether the speech is flag-burning or Communist advocacy or Ice-T's "Cop Killer" or "Buckwheat" T-shirts or ebonics jokes, free speech must win.

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.

TODAY IN SLATE

Medical Examiner

Here’s Where We Stand With Ebola

Even experienced international disaster responders are shocked at how bad it’s gotten.

It’s Legal for Obama to Bomb Syria Because He Says It Is

Divestment Is Fine but Mostly Symbolic. There’s a Better Way for Universities to Fight Climate Change.

I Stand With Emma Watson on Women’s Rights

Even though I know I’m going to get flak for it.

It Is Very Stupid to Compare Hope Solo to Ray Rice

Building a Better Workplace

In Defense of HR

Startups and small businesses shouldn’t skip over a human resources department.

Why Is This Mother in Prison for Helping Her Daughter Get an Abortion?

How Ted Cruz and Scott Brown Misunderstand What It Means to Be an American Citizen

  News & Politics
Politics
Sept. 23 2014 12:43 PM Occupy Wall Street How can Hillary Clinton be both a limousine liberal and a Saul Alinsky radical?
  Business
Moneybox
Sept. 23 2014 2:08 PM Home Depot’s Former Head of Security Had a Legacy of Sabotage
  Life
Outward
Sept. 23 2014 1:57 PM Would A Second Sarkozy Presidency End Marriage Equality in France?
  Double X
The XX Factor
Sept. 23 2014 2:32 PM Politico Asks: Why Is Gabby Giffords So “Ruthless” on Gun Control?
  Slate Plus
Political Gabfest
Sept. 23 2014 3:04 PM Chicago Gabfest How to get your tickets before anyone else.
  Arts
Brow Beat
Sept. 23 2014 2:31 PM 3 Simpsons Showrunners Reflect on New Fans and the “Classic Era” Myth
  Technology
Future Tense
Sept. 23 2014 1:50 PM Oh, the Futility! Frogs Try to Catch Worms off of an iPhone Video.
  Health & Science
Science
Sept. 23 2014 1:38 PM Why Is Fall Red in America but Yellow in Europe? A possible explanation, 35 million years in the making.
  Sports
Sports Nut
Sept. 18 2014 11:42 AM Grandmaster Clash One of the most amazing feats in chess history just happened, and no one noticed.