Intimidating hostile or
Whatever shelter there is for such speech must come from the "severe or pervasive" requirement. Once a worker has indicated that the speech is unwelcome, the speaker should be directed to either stop or set up a meeting with a designated EEO officer for advice.30Employees can thus only say "gender-specific or sexual" things--and I assume this includes supposedly sexist political or social statements, sexually themed jokes, and so on31--until one listener objects. and display in the work place of sexually suggestive objects or pictures. Even the broadest libel laws would be vastly underenforced, and juries can exhibit unjustified hostility towards libel plaintiffs as well as unjustified sympathy.
The heart of a defense of harassment law, I take it, would be an assertion that this requirement--despite the examples I gave above--will shield all protected speech except the most obnoxious. only by restricting their conduct to that which is unquestionably safe."28 Unless the Court was talking through its hat when it said this, the risk of employers "steer[ing] far wider of the unlawful zone" because of the rule's vagueness has to be considered in determining the true magnitude of the speech restriction.29 In fact, consider Professor Epstein's own suggestion to employers. At that point, they must either shut up or schedule a meeting with a "designated EEO officer" before speaking further. To properly measure harassment law's impact on speech, we should ask: What restrictions would prudent, law-abiding employers--employers who heed the EEOC's statement that "Prevention is the best tool for the elimination of sexual harassment"66--impose in trying to avoid liability? 757 (1992); Volokh, Freedom of Speech and Workplace Harassment, supra note 1; Eugene Volokh, How Harassment Law Restricts Free Speech, 47 RUTGERS L. 563 (1995); Eugene Volokh, Thinking Ahead About Freedom of Speech and Hostile Work Environment Harassment, 17 BERKELEY J.
But I also don't want to be stuck with a big lawsuit." What can you say in response? Many employers, because of ignorance or bigotry or whatever else, ignore the risk of liability and don't suppress speech or conduct that should be restricted. This article is dedicated to the memory of my teacher and colleague Julian Eule. Deborah Epstein, Can a "Dumb Ass Woman" Achieve Equality in the Workplace?
Saying "Well, you're OK if the speech isn't severe or pervasive enough to create a hostile or abusive environment" obviously gets you nowhere: The employer will just ask you "Well, is it severe or pervasive enough or isn't it? And though I have no idea whether "in the vast majority of cases, the judiciary is not engaging in overbroad enforcement, but instead is failing to impose liability,"33 I'm sure this underenforcement happens in some cases, perhaps many cases. Running the Gauntlet of Hostile Environment Harassing Speech, 84 Geo.
During the most recent military action of Operation Desert Storm, the negative attitude toward Vietnam era veterans became vocal. [This constitutes a v]iolation of 41 CFR 60-250.4(a) [ban on discrimination against veterans] and 41 CFR 60-250.6(a). a cartoon entitled `Highway Signs You Should Know' [that showed] twelve drawings of sexually graphic `road signs' (entitled, for example, `merge,' `road open,' etc.)," and so on. depicted both men and women," the court concluded that "widespread verbal and visual sexual humor--particularly vulgar and degrading jokes and cartoons . And if the outcomes in the above cases were, as Professor Epstein suggests, "bizarre judicial misapplications," "exception[s] to the rule" that should be ignored in determining the rule's true scope, it could only be because the speech in those cases didn't meet the severity or pervasiveness thresholds.23 But how exactly can we condemn the fact-finders here of being guilty of "bizarre judicial misapplications"? On its face, harassment law draws no distinction among slurs, pornography, political, religious, or social commentary, jokes, art, and other forms of speech.
We must judge it by how we might expect it to be applied by the variety of fact-finders in our judicial system. Gender Harassment: Generalized gender-based remarks and behavior. The "regulatory reach" of harassment law is certainly not limited to the "most objectively extreme, persistent, and unwelcome" forms of conduct.65 Of course, the speech-restrictive potential of harassment law won't be realized in every situation. 1009 (1996) (discussing procedural requirements mandated by the Free Speech Clause in appeals of harassment cases). For my views on the doctrinal questions, see generally Volokh, Freedom of Speech and Workplace Harassment, supra note 1 (arguing that some kinds of harassing speech may constitutionally be punished, though other kinds must remain constitutionally protected); Volokh, How Harassment Law Restricts Free Speech, supra note 2; Volokh, Thinking Ahead About Freedom of Speech and Hostile Work Environment Harassment, supra note 2.
For example, in one of the departments Professors displayed inflammatory pictures and postings, offensive to Vietnam era veterans on their office windows facing the corridors. The restrictions barred even isolated incidents of grossly offensive speech, but, Professor Grey argued, this was necessary to prevent a hostile educational environment:63 [T]he injury of discriminatory denial of educational access through maintenance of a hostile environment can arise from single acts of discrimination on the part of many different individuals. § 4311 (1994) (barring discrimination against present or former armed service members); 41 C.
But a Vietnam era veteran was required to remove a poster considered offensive by members of a non-protected group. However, no action was taken to effect change prior to OFCCP's review. may tend to demean women."20 The court ultimately held that "every incident reported by [plaintiff]"--the jokes as well as the other conduct--"involves sexual harassment."21 An official U. Department of Labor pamphlet likewise defines harassment as including cases where "[s]omeone made sexual jokes or said sexual things that you didn't like," with no requirement that the jokes be insulting or even misogynistic.22 If there is anything about harassment law that prevents liability based on this sort of speech, it has to be the severity/pervasiveness component: The fact-finder--judge or jury--must conclude not only that the speech was offensive, based on race, religion, sex, or some other attribute, but also that it was either "severe" or "pervasive" enough to create a hostile or abusive environment for the plaintiff and for a reasonable person. To deal with a form of abuse that is repetitive to its victims, and hence constitutes the continuing injury of harassment to them, it is necessary to prohibit the individual actions that, when added up, amount to institutional discrimination.64 On this point, Professor Grey is absolutely right: To avoid the risk of a hostile environment, an institution can't, in practice, just restate the severity/pervasiveness test--it must "prohibit the individual actions [including speech] that, when added up, amount" to a hostile environment. THE SPEECH THAT HARASSMENT LAW RESTRICTS The scope of harassment law is thus molded by three facts: 1. 1994) (barring harassment based on age and disability, under the Age Discrimination in Employment Act and the Americans with Disabilities Act); 38 U.
Some might condemn the law in either event, and some might approve of it in either event, but for quite a few people the decision may be influenced by the law's scope.
I'm deeply flattered that Professor Epstein chose to respond to my article on freedom of speech and workplace harassment.1 We disagree on many points, but I very much respect her contribution to the literature. 50, 63-73 (1976) (plurality opinion) (same as to pornography).