Commentary

Workplace Is Becoming Speech-Free Zone

By Eugene Volokh
July 24, 1997
AGeorgia trucking company put Bible verses on its paychecks and articles with Christian themes in its newsletter. A non-Christian employee sued, claiming that such speech created a “hostile environment.”

What did the judges do?

A. They held that the First Amendment guarantees all of us the right to speak about our religious beliefs.

B. They concluded that it’s silly for the government to impose speech codes on every workplace in the nation.

C. They said the employer’s speech was illegal.

The answer, of course, is C. That’s C for censorship—censorship by civil rights laws creatively construed. With little fanfare, the law of workplace harassment has blown a hole through our First Amendment liberties.

When most people think of “harassment,” they think of sexual extortion, physical abuse, repeated unwanted sexual propositions or, perhaps, face-to-face slurs. But the law’s definition is much broader than that. Any sort of conduct or speech can be harassment if it involves such matters as race or sex and is “severe or pervasive” enough to create a “hostile or abusive” environment for the plaintiff and for a “reasonable person.”

That definition of harassment doesn’t require physical abuse or even personal insults. Several courts have found religious advocacy to be religious harassment. One court found that coworkers’ use of “draftsman” and “foreman” (instead of “draftsperson” and “foreperson”) might be sexual harassment. A Kentucky agency forced employers to take down “Men Working” signs—at a cost of over $35,000—because the signs “perpetuate a discriminatory work environment and could be deemed unlawful.”

Jokes with sexual themes, even ones that don’t insult either men or women, have been found to be illegal. Harassment complaints have been based on eminently legitimate art, such as a Francisco Goya painting. Cautious employers have wisely taken paintings down, a predictable “chilling effect” of the vague and broad law.

Here’s the theory behind the new speech codes, according to one federal court: Harassment law, the court said, is aimed at “informing people that the expression of racist or sexist attitudes in public is unacceptable,” so that “people may eventually learn that such views are undesirable in private, as well.” Apparently, citizens should be treated like children: If they express views that are offensive and undesirable, their teacher in Washington will punish them so they’ll eventually learn better.

I acknowledge that much harassing speech is rude and reprehensible. Even setting aside intentional insults, it’s usually reasonable to bend over backwards to avoid offending your coworkers. And I sympathize with employees who object to various offensive remarks. Many people don’t go to work to hear about politics; they just want to earn their day’s pay and go home.

Still, many of us spend more waking hours at work than anywhere else. That’s where we often talk about the questions of the day. The workplace can’t be a First Amendment-free zone.

And the First Amendment tells us that it’s not up to the government to censor unacceptable attitudes. We can punish such speech by social sanctions—by making it clear to rude people that we expect better from them. Private employers, who aren’t covered by the Constitution’s guarantees, can regulate what’s said in their offices. Employers and employees can create whatever contractual roles they can agree on.

The government, though, has to keep out of this; so says the Bill of Rights, in plain and unmistakable language. Those who are trying to purge free speech from the office really ought to reread the First Amendment every so often.

Eugene Volokh, a UCLA law professor, writes frequently for the Cato Institute.