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Free Speech and Hostile Environment "Harassment"

Free Speech & Election Law Practice Group Newsletter - Volume 1, Issue 2, Spring 1997
By Hans Bader
July 01, 1997

Harassment claims are often based primarily on speech, such as allegedly racist or sexist comments, jokes, or pictures - that can result in costly damage awards. Yet management-side employment lawyers have almost always failed to raise First Amendment defenses in harassment cases, even though a number of courts have recognized that banning offensive speech to prevent a hostile environment is in sharp tension with the First Amendment. Management lawyers can profitably use the First Amendment both to force appellate courts to conduct a searching review of the evidence underlying harassment verdicts against their clients, and to challenge hostile-environment harassment law itself as unconstitutional.

The Supreme Court has twice held that Title VII prohibits a hostile work environment on the basis of sex, race, or religion. Meritor Sav. Bank v. Vinson, 477 U.S. 57 (1986); Harris v. Forklift Systems, 114 S.Ct. 367 (1993). In neither case did the Court address the First Amendment implications of banning speech that produces a hostile environment, even though Harris involved a claim based largely on insulting speech. The lower courts have just begun to grapple with the free speech implications of harassment law, although they have blocked campus speech codes designed to prevent a hostile environment.

The lower courts have generally, but not always, upheld workplace restrictions on speech that create a hostile environment. The two most cited examples are Robinson v. Jacksonville Shipyards, 795 F. Supp. 1486 (M.D.Fla. 1991) and Jenson v. Eveleth Taconite Mining Co., 824 F. Supp. 847 (D. Minn. 1993), in which overwhelmingly-male workforces targeted female co-workers with insults, vandalism, and sexual graffiti or pornography. Robinson concluded that sexual harassment law is a constitutional time, place, and manner restriction on speech. Jenson held simply that sexist speech may be "incidentally swept up" within Title VII's ban on workplace discrimination.

The most recent case to uphold harassment rules against a First Amendment challenge is Aguilar v. Avis Rent-A-Car System, 53 Cal.Rptr.2d 599 (Cal. App. 1996). The defendants, a car rental company and its employee, appealed an injunction in a harassment case barring the employee from using any racial epithet. A divided court of appeal upheld the injunction, holding that racist speech can be banned to prevent a hostile work environment under the "secondary effects" rule, which allows porno shops to be banned from certain parts of town to prevent "secondary effects" such as crime and urban blight. The presiding judge dissented, arguing that the injunction was an unconstitutional content-based speech restriction because "secondary effects" do not include listeners' reactions to speech, such as perceptions of a hostile work environment. The case has been appealed to the California Supreme Court.

By contrast, the Oregon Supreme Court sustained a religious-freedom challenge to the application of a workplace harassment rule by a company owner who repeatedly asked his subordinate to go to church with him and called him a sinner. Meltebeke v. Bureau of Labor and Indus., 903 P.2d 351 (Or. 1995). Oregon's civil rights agency fined the owner for unintentionally creating a religiously-hostile work environment. The state appeals court threw out the fine, holding that hostile-environment rules are too broad to accommodate freedom of religion, since the purpose of freedom of religion guarantees is to protect those whose religious beliefs may be offensive to co-workers. The civil rights agency appealed to Oregon's Supreme Court, which held that while the harassment rule wasn't invalid on its face, it had to exempt expression that the speaker doesn't know will create a hostile environment in order to avoid chilling the free exercise of religion.

The Fifth Circuit questioned the constitutionality of workplace harassment rules in DeAngelis v. El Paso Municipal Police Officers' Ass'n, 51 F.3d 591 (5th Cir. 1995). A female police sergeant won a harassment verdict against a police union that repeatedly allowed a columnist for its newsletter to make fun of female police officers. The Fifth Circuit reversed the verdict as based on conduct insufficient to create a hostile environment, and then noted in dictum that "hostile environment" law is content-based and viewpoint-discriminatory when applied to speech.

Unlike management employment lawyers, who have been reluctant to raise First Amendment defenses, students and faculty have repeatedly brought successful First Amendment challenges to hostile-environment harassment rules in the context of campus speech codes. Cohen v. San Bernardino Valley College, 92 F.3d 968 (9th Cir. 1996)(sexual harassment policy too vague as applied to professor); Dambrot v. Central Michigan Univ., 55 F.3d 1177 (6th Cir. 1995) (voiding ban on speech that has "negative [racial] connotations" and creates hostile learning or work environment); Silva v. Univ. of N.H., 888 F. Supp. 293 (D. N.H. 1994) (sexual harassment policy too broad as applied to professor); UWM Post, Inc. v. Board of Regents of Univ. of Wisconsin, 774 F. Supp. 1163 (E.D. Wis. 1991) (voiding race/sex harassment code that restricted only speech that deliberately created a hostile environment); Doe v. Univ. of Michigan, 721 F. Supp. 852 (E.D. Mich. 1989) (voiding race and sex harassment policies after they were applied to offensive viewpoints, but hinting that speech in non-academic workplaces can be restricted); see also Iota Xi Chapter v. George Mason Univ., 993 F.2d 386 (4th Cir. 1993); Pyle v. S. Hadley Sch. Comm., 861 F. Supp. 157 (D. Mass. 1994). Few of the court rulings striking down speech codes have discussed whether or why the government can apparently restrict speech less at state universities than in private workplaces. But cf. UWM Post, 774 F. Supp. at 1177 ("Since Title VII is only a statute, it cannot supersede the requirements of the First Amendment.")

Three main First Amendment-based arguments can be made against hostile-environment harassment policies: they are overly broad, restricting large amounts of traditionally-protected expression; they are very vague; and they censor speech on the basis of viewpoint.

Hostile-environment harassment law is overbroad. Hostile-environment law does not simply reach unprotected speech, such as fighting words or obscenity. Instead, it reaches speech that has been held protected, such as sexual speech, American Booksellers Ass'n v. Hudnut, 771 F.2d 323 (7th Cir. 1985) (pornography is protected), aff'd, 475 U.S. 1001 (1986), racist or sexist speech, R.A.V. v. St. Paul, 505 U.S. 377 (hate speech is protected), and religious proselytizing, Cantwell v. Connecticut, 310 U.S. 296 (1940). Speech that is presumptively protected by the First Amendment can nevertheless create a hostile environment. For example, in Brown Transp. Corp. v. Comm. of Pennsylvania, 578 A.2d 555 (Pa. Cmmw. 1990), a company that printed Bible verses on employees' paychecks and published religious articles in its newsletter was held liable for harassment to a Jewish employee.

Harassment law's overbreadth is not cured by the fact that it "sweeps up" speech within a general prohibition against discrimination, since speech is generally protected even when it has the same effect as unprotected conduct. Hustler v. Falwell, 485 U.S. 46 (1988) (although conduct that causes emotional distress is not protected by the First Amendment, speech that inflicts emotional distress on a public figure is protected); NAACP v. Claiborne Hardware Co., 458 U.S. 886, 915-17 (1982).

Nor is it saved from overbreadth by the fact that it serves the compelling interest in eradicating discrimination. Workplace harassment law is a content-based restriction on speech, since its penalties are triggered by the plaintiff's reaction to the "harassing" speech. Harris, 114 S.Ct. at 371 ("if the victim does not subjectively perceive the environment to be abusive...there is no Title VII violation"). "Listeners' reaction to speech is not a content-neutral basis for regulation." Forsyth County v. Nationalist Movement, 505 U.S. 123, 134 (1992). As a content-based restriction on speech, harassment law is subject to strict scrutiny, and is unconstitutional unless it is both necessary to serve a compelling interest and the "least restrictive means" for doing so. See, e.g., Sable Communications v. F.C.C., 492 U.S. 115 (1989); Boos v. Barry, 485 U.S. 312, 329 (1988).

It is highly unlikely that harassment law can satisfy this demanding standard. Most circuits require employers to take sweeping remedial measures to avoid harassment liability, such as entirely prohibiting racist and sexist speech from the workplace, since if they fail to do so, they will be held liable for any hostile environment that ultimately develops. This is because the courts group together the temporally diffuse utterances of unrelated employees in assessing whether a work environment is hostile, even if no one employee has said anything offensive on more than one occasion, see, e.g., Waltman v. Int'l Paper Co., 875 F.2d 468, 475 (5th Cir. 1989) (conspiracy among "harassers" not required), and even if no employee intended to offend the plaintiff, Ellison v. Brady, 924 F.2d 872, 880 (9th Cir. 1991) ("well-intentioned compliments . . .can form the basis of a sexual harassment cause of action"). This broad employer duty to suppress speech conflicts with the First Amendment rule that an entire class of speech cannot be prohibited simply because it may occasionally cause harm, since such a broad restriction is not narrowly tailored, and is like "burning the house to roast the pig." Sable Communications, 492 U.S. at 130-31.

The government cannot avoid responsibility for this censorship on the grounds that employers, rather than the government, are doing the censoring, since the government may not conscript private employers to do for it what the government may not do directly. See, e.g., Truax v. Raich, 239 U.S. 33, 38 (1916). Nor can the First Amendment be evaded by the fact that employees could theoretically bargain with their employer to limit speech restrictions designed to avoid the risk of a hostile environment, since free speech benefits "society as a whole" in a way that transcends the price put on it by employees themselves. Bose Corp. v. Consumers Union, 466 U.S. 485, 503 (1984).

Even if hostile-environment harassment law could be deemed content-neutral, and thus subject to lesser scrutiny, it would still be overbroad. Even content-neutral restrictions on speech must still "leave open ample alternative channels of communication," Frisby v. Schultz, 487 U.S. 474, 481 (1988), while harassment law leaves few alternative channels for discussion of work-related race or gender issues. Moreover, content-neutral regulations cannot prohibit an entire class of speech "unless each activity within the proscription's scope is an appropriately targeted evil," id. at 485, and even hate speech is not deemed an evil per se. R.A.V., supra.

Hostile environment law is unconstitutionally vague. Hostile-environment law typically requires employers to discipline employees for racial or sexual speech that offends the "reasonable person," and the failure to do so may subject them to liability for tolerating a hostile environment. This mandate is impermissibly vague, as it gives speakers (and employers) little notice of what speech is or isn't prohibited. See Harris, 114 S.Ct. at 372 (Scalia, J., concurring) ("today's holding lets virtually unguided juries" decide what is harassment); Spicer v. Comm. of Va., 44 F.3d 218, 225 (4th Cir. 1995), ("the boundary of what is actionable is unclear"), rev'd on other grounds, 66 F.3d 705 (1995). The definition of what is "racist" or "sexist," like the definition of what is "communist," is inherently vague and manipulable, and will vary from jury to jury. Cf. Elfbrandt v. Russell, 384 U.S. 11, 17 (1966) ("People often label as `communist' ideas which they oppose; and they often make up our juries"); Patterson v. McLean Credit Union, 491 U.S. 164 (1989) (hostile-environment standard is "amorphous and manipulable"). That harassment laws are civil rather than criminal is no reason to tolerate their vagueness, Bullfrog Films v. Wick, 847 F.2d 502, 513 (9th Cir. 1988) (overturning civil penalty on speech), given the chilling effect on speech resulting from a damage award.

Even when speech actually creates a hostile environment, the speaker will often be unaware of that fact. Ellison, 924 F.2d at 880 (Title VII "classifies conduct as unlawful sexual harassment even when harassers do not realize that their conduct creates a hostile working environment," including "well-intentioned compliments by co-workers"); Cohen, 92 F.3d at 970 (professor lacked notice that his speech violated harassment policy); Meltebeke, 903 P.2d at 363 (harassment rule must require scienter).

Hostile -environment harassment law impermissibly restricts speech based on viewpoint. Hostile environment harassment law is also suspect because it restricts speech on the basis of viewpoint, since it is "triggered" by the pervasive expression of racially or sexually offensive views, but not other views, no matter how offensive. See Turner Broadcasting v. FCC, 114 S.Ct. 2445, 2459, 2461 (1994). Even viewpoint-discriminatory speech restrictions that promote a compelling interest are generally invalid. For example, in the case of R.A.V. v. St. Paul, the Supreme Court struck down a city's ban on race-based fighting words, even though the court conceded that it promoted the state's compelling interest in "ensur[ing] the basic human rights of groups that have historically been subject to discrimination." This virtual per se rule against viewpoint-discrimination reflects the fact that viewpoint discrimination is an "egregious form of content discrimination." Rosenberger v. Rector & Visitors of Univ. of Virginia, 115 S.Ct. 2510, 2516 (1995).

Finally, even if a court holds that the First Amendment is not an absolute bar to imposing liability for speech that creates a hostile environment, it should still be raised, as it should force courts of appeal to scrutinize very closely trial court findings that the harassing speech was in fact severe or pervasive enough to create a hostile environment.

Today, most of the circuits review only for "clear error" a jury's conclusion that speech or conduct is "severe or pervasive" enough to create a hostile-environment, rather than reviewing it de novo. See Eugene Volokh, Freedom of Speech and Appellate Review in Workplace Harassment Cases, 90 Nw. U. L. Rev. 1009, 1010; but see DiCenso v. Cisneros, 96 F.3d 1004 (7th Cir. 1996) (reversing verdict under de novo review). But when confronted with a First Amendment defense - even in cases involving unprotected speech like obscenity - an appellate court can't use the "clearly erroneous" standard, but rather must exercise its own independent judgment about whether the speech actually falls into the unprotected category of speech. Bose v. Consumers Union, 466 U.S. 485 (1984). By appealing a harassment verdict on the grounds that because the speech was not severe enough to create a hostile environment, it was protected by the First Amendment, an employer can force the appellate court to conduct a "searching review" of the verdict, rather than simply upholding the finding as not "clearly erroneous." Volokh, 90 Nw. U. L. Rev. at 1023-24.

Additional resources:

Eugene Volokh, Freedom of Speech and Workplace Harassment, 39 U.C.L.A. L. Rev. 1791 (1992).

Kingsley R. Browne, Title VII as Censorship: Hostile-Environment Harassment and the First Amendment, 52 Ohio St. L.J. 481 (1991)

Jessica M. Karner, Political Speech, Sexual Harassment, and a Captive Workforce, 83 Cal. L. Rev. 637 (1995).

*Hans Bader is Associate Counsel for the Center for Individual Rights, a Washington, D.C.-based non-profit public interest law firm specializing in civil rights, freedom of speech and the free exercise of religion, and sexual harassment law.