Freedom of Speech vs. Workplace Harassment
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.
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.