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Freedom of Speech vs. Workplace Harassment

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from: Deborah Epstein
to: Eugene Volokh

Posted Wednesday, Oct. 1, 1997, at 3:30 AM ET

Dear Eugene:

I'm glad we agree that "one-on-one insults" on the job, once they permeate the work environment, can be restricted. Why? Because, as you and I both know, the First Amendment is not absolute, and the 14th explicitly empowers the government to prevent discrimination. In short ... constitutional crash. (Which is why, by the way, I'd have to vote "yes" on SLATE's ill-phrased question here.)

Our only disagreement is on how to resolve the conflict between these two parts of the Constitution. You would protect "political statements" on the job, while I don't believe this kind of line-drawing makes any sense.

It's virtually impossible to tell the difference between political speech and one-on-one slurs. Imagine things get tough at UCLA, and you decide to take a job as a human resources manager at Warner Bros. Your supervisor, a woman, makes daily pronouncements that "men aren't capable of doing this job" (under your definition, a political statement about gender-based ability). Your co-workers start making similar comments, and cover the office with anti-male "bulletins, cartoons, and other written material," undermining your confidence and effectiveness. Your female counterparts sail through their days without a problem. Shouldn't you have legal recourse? Should it matter that no one directed a personal, one-on-one insult at you, such as: "Eugene, as a man, you're not capable of doing this job"?

The distinction between these two types of statements hardly strikes me as "elementary." And it's not particularly principled, either, as the ACLU recognizes in its current policy on this topic. Where do we head as a society if First Amendment protections turn on such a trivial difference in a speaker's turn of phrase?

And the distinction has no basis in constitutional law. The First Amendment doesn't protect any kind of speech--political or otherwise--with no regard for the circumstances. Everyone knows you can't shout "Fire!" in a crowded theater.

Context matters with political statements as well. The Supreme Court has said over and over again that where a person listening to unwanted speech has no realistic way of avoiding it (where she's "captive"), her right to privacy trumps the speaker's right to express himself. On this principle, the court has upheld restrictions on political ads displayed in public buses, where some riders have no realistic transportation alternative; and anti-choice slogans shouted outside abortion clinics, where patients can't leave due to medical circumstance.

Workers on the job are even more "captive." If a woman's being harmed by her supervisor's harassing statements, her only alternative is to walk away--and risk being fired for insubordination. The Constitution doesn't, and shouldn't, force her to make that choice.

And free speech rights are at their weakest on the job. Most workers can be fired for any reason, including saying the wrong thing. Should this principle evaporate when an employee starts calling his women colleagues "bitch" or "whore," and tells them to spend more time in the office kitchen, where he can "see their nipples better"? (I invite readers who visit your Web site to go out and read the full opinions from the cases you mention there, so they can see for themselves how much more hostility and hatred is taking place than suggested by your often selective and sanitized notes.)

In contrast, the equality rights of women and minorities are at their strongest at work. If equal opportunity doesn't apply in the job market, it's a dead letter. There, it seems to me, the balance between speech and equality tips in favor of the latter.

You raise an interesting point about the potential chilling effect of harassment law on speech. The law does not require employers to overreach, however, and I'm happy to tell you why in my next e-mail. More later ...

Deborah

dialogues
entries
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from: Deborah Epstein
to: Eugene Volokh

Posted Wednesday, Oct. 1, 1997, at 3:30 AM ET
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Deborah Epstein is a visiting associate professor at Georgetown University Law Center, where she is the assistant director of the Sex Discrimination Clinic. Eugene Volokh 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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