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
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.
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,
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.
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.