In our Sexual Harassment Awareness training courses your employees will learn and apply the important skills of handling sexual harassment issues and complaints. This hands on course thoroughly addresses the elements of how to prevent unacceptable behavior. The course includes a detailed overview of what sexual harassment is, explains legal definitions, discusses sexual harassment prevention, and shows how to handle sexual harassment complaints and maintain a positive work environment.

For more information about individual sexual harassment training courses please complete this form.  Once the form is received one of our consultants will provide you with a confidential proposal that will include a detailed description of the training course and the costs for conducting it. 

Sexual Harassment Training: What Speech Does "Hostile Work Environment" Harassment Law Restrict?

 The first step in evaluating a speech restriction is figuring out exactly what it restricts. The debate about the constitutionality of "hostile work environment" harassment law is in large part a debate about this.

If harassment law bans only hard-core pornography, personal slurs, and repeated indecent propositions, people might have one view about it. If, on the other hand, it restricts political and religious statements, prints of Francisco de Goya paintings, sexually themed (perhaps not even misogynistic) jokes, and the like, people's views might be quite different. 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. With her article and some of the others that have recently been written on this subject, the various First Amendment doctrinal arguments have finally been fully aired.2 Likewise, the harms that harassing speech can cause have been amply discussed. I doubt that it would be useful for me to go over all this ground again here.3

Instead, I want to focus briefly on the one area to which (perhaps surprisingly) a little less attention has been paid: Exactly what speech does "hostile work environment" harassment law restrict?

I. POLITICAL, ARTISTIC, RELIGIOUS, AND SOCIALLY THEMED SPEECH QUALIFIES

The first place to look for an answer, of course, is the definition of harassment. Speech can be punished as workplace harassment if it's "severe or pervasive" enough to create a "hostile or abusive work environment" based on race, religion, sex, national origin, age, disability, veteran status, or, in some jurisdictions, sexual orientation, political affiliation, citizenship status, marital status, or personal appearance, for the plaintiff and for a reasonable person. 4

Note what the definition does not require. It does not require that the speech consist of obscenity or fighting words or threats or other constitutionally unprotected statements. It does not require that the speech be profanity or pornography, which some have considered "low value." 5 Under the definition, it is eminently possible for political, religious, or social commentary, or "legitimate" art, to be punished. 6

"David Duke for President" posters, after all, might well be quite offensive to many reasonable people based on their race, religion, or national origin, and may create a hostile environment. 7 This would be even more true of bigoted or insensitive remarks about minority or female political candidates. 8 Many reasonable people might view strident denunciations of Catholicism, whether political or religious, as creating a hostile environment for devout Catholics. 9 A reasonable person who believes that pinups "encourag[e] men to view [women] as sex objects"10 might say something like the following, even about classical paintings:

I personally find "art" in any form whether it be a painting, a Greek statue or a picture out of Playboy which displays genitals, buttocks, and/or nipples of the human body, to be pornographic and, in this instance, very offensive and degrading to me as a woman.

Even if I wanted to personally take time to appreciate this kind of "art," I reserve the right for that to be my choice and to not have it thrust in my face on my way into a meeting with my superiors, most of whom are men.11And if some complainants say this, some fact-finders may well agree. A state court has in fact found that it was religious harassment for an employer to put religious articles in its employee newsletter and Christian-themed verses on its paychecks.12 The EEOC likewise found that a claim that an employer "permitted the daily broadcast of prayers over the public address system" over the span of a year was "sufficient to allege the existence of a hostile working environment predicated on religious discrimination."13

A state administrative agency has found that an employee was religiously harassed by a Seventh Day Adventist coworker who often talked about religion to everyone. There was no allegation that the coworker used any religious slurs, though he did "[make] negative comments to [plaintiff] about her Lutheran faith," did "criticize[] (and tr[y] to change) [plaintiff's] personal life style," and did "depress[] [plaintiff] a great deal" with what plaintiff saw as "Seventh Day Adventism's `pessimistic doomsday' outlook."14

Likewise, one court has said that coworkers' use of job titles such as "foreman" and "draftsman" may constitute sexual harassment,15 and a Kentucky human rights agency has gotten a company to change its "Men Working" signs (at a cost of over $35,000) on the theory that the signs "perpetuat[e] a discriminatory work environment and could be deemed unlawful under the Kentucky Civil Rights Act."16 Another court has characterized an employee's hanging "pictures of the Ayatollah Khome[i]ni and a burning American flag in Iran in her own cubicle" as "national-origin harassment" of an Iranian employee who saw the pictures.17 Similarly, the Office of Federal Contract Compliance Programs (OFCCP) characterized anti-veteran postings at Ohio State University as harassment based on Vietnam-era veteran status:

OFCCP's onsite review revealed that the University had not maintained a working environment free of harassment, intimidation and coercion based upon covered veteran status for special disabled veterans and veterans of the Vietnam Era. 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. But a Vietnam era veteran was required to remove a poster considered offensive by members of a non-protected group.

During the most recent military action of Operation Desert Storm, the negative attitude toward Vietnam era veterans became vocal. Complaints regarding the offensive postings and verbal harassment were brought to the attention of University Executives. . . . However, no action was taken to effect change prior to OFCCP's review. [This constitutes a violation of 41 CFR 60-250.4(a) [ban on discrimination against veterans] and 41 CFR 60-250.6(a). 18

Another court has found a hostile environment based largely (though not entirely) on "caricatures of naked men and women, animals with human genitalia, . . . 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. 19 Though "[m]any of the sexual cartoons and jokes . . . depicted both men and women," the court concluded that "widespread verbal and visual sexual humor--particularly vulgar and degrading jokes and cartoons . . . 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.S. 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. 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"? After all, nothing in the rule they were told to apply says that religious proselytizing, political commentary, or off-color jokes are insulated from liability. Perhaps you or I can say that a reasonable person ought not find Bible verses or the phrase "Men Working" or jokes about sexually graphic road signs to be "severe" or "pervasive" enough to create a hostile environment; but obviously other people, who probably thought themselves to be quite reasonable, have disagreed.24

"Severe," "pervasive," "hostile," and "abusive" are mushy terms. I'm not completely sure what it means to say that people have "bizarre[ly] misappli[ed]" such terms. They might just have had a different notion of how offensive something must be to be "severe," or how frequent it must be to be "pervasive."

When we judge a rule, we can't judge it simply by how we would apply it ourselves. We must judge it by how we might expect it to be applied by the variety of fact-finders in our judicial system. And I imagine that in that system, quite a few fact-finders will conclude that various religious statements, political posters, "vulgar and degrading" jokes, and "indecent" art can indeed be "severe" or "pervasive" enough to create a hostile environment. Perhaps one can argue that this is acceptable; but one can't deny that this will happen.

II. STEERING WIDE OF THE UNLAWFUL ZONE

So we see that, on its face, harassment law can suppress core protected speech. Whatever shelter there is for such speech must come from the "severe or pervasive" requirement. 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.

Let's consider, though, how this would work out in practice. Imagine you're an employment lawyer, and an employer comes to you and says: "Help me out. One of my employees is complaining that her coworkers' political posters and lunchroom conversations have created a hostile environment based on her [race/religion/sex/ national origin/age/disability/veteran status/sexual orientation/marital status]. The speech sounds to me like normal political argument, and I don't want to suppress it. But I also don't want to be stuck with a big lawsuit."

What can you say in response? 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?"

Your answer would probably have to be "We won't know until it gets to court." With vague words like "severe," "pervasive," "hostile," and "abusive," that's generally all you can say.25 And because of this, the safe advice would be: "Shut the employees up." After all, the typical employer doesn't profit from its employees' political discussions; it can only lose because of them.26 The rational response is suppression, even if the lawyer personally believes that the speech probably doesn't reach the severe-or-pervasive threshold.27

If one takes at all seriously what the Supreme Court has said, this is precisely the effect that vague laws have. Vagueness leads people "to `steer far wider of the unlawful zone,' than if the boundaries of the forbidden areas were clearly marked. Those . . . sensitive to the perils posed by . . . indefinite language, avoid the risk . . . 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. Contrary to the position I've just outlined, she argues that "an employer can easily create a narrow, speech-protective antiharassment policy that minimizes any chilling effect":

One strategy is to explain to workers that they may make gender-specific or sexual comments until they receive an indication from a particular employee that such statements are unwelcome. . . . 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.30

Employees 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. At that point, they must either shut up or schedule a meeting with a "designated EEO officer" before speaking further.

Gone is any requirement that the speech be "severe or pervasive," or that it create a hostile or abusive environment, or that it even be offensive to a reasonable person. The policy Professor Epstein suggests would bar any "gender-specific or sexual" speech so long as there's any objection, at least until one gets clearance from above. This is "a narrow, speech-protective antiharassment policy that minimizes any chilling effect"?32

Of course, harassment law, like many other laws, is underenforced as well as overenforced. 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. 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.

But other employers pay attention to the risk and consequently suppress any speech that might possibly be seen as harassment, even if you and I would agree that it's not severe or pervasive enough that a reasonable person would conclude that it creates a hostile environment. Likewise, some fact-finders are imposing fairly low thresholds of severity or pervasiveness, even as other fact-finders are imposing higher ones. In those cases, the law may pose First Amendment problems regardless of whether it's under enforced in other situations.34

III.THE LAW'S EFFECT ON INDIVIDUAL STATEMENTS

We see, then, that the "severe or pervasive" requirement is too vague to provide much protection for speech, and even Professor Epstein's own proposed policy essentially eliminates this requirement. This, though, isn't some slight drafting flaw that can be corrected with a bit of tinkering: harassment law by its nature restricts individual statements, even when they're clearly not severe or pervasive enough to generate a hostile environment.

Recall that a hostile environment can be created by many different employees, each making only one or a few offensive statements. Individually, the statements might not be "severe or pervasive" enough to create liability, but in the aggregate they may be actionable.

An employer can't just announce to its employees: "Say whatever you like, so long as the aggregate of all your statements and all the other employees' statements isn't so severe or pervasive that it creates a hostile environment." Most employees have no idea what their coworkers may have said days, weeks, or months ago. If the employer wants to protect itself, it must tell each employee what speech that employee must avoid.

The employer's only reliable protection is a zero-tolerance policy,35 one which prohibits any statement that, when aggregated with other statements, may lead to a hostile environment. This is what many employment experts in fact advise. One writes, in an article entitled Avoid Costly Lawsuits for Sexual Harassment:

Suggestive joking of any kind simply must not be tolerated . . . At the very least, you must insist that supervisors never engage in sexual joking or innuendo[; t]hat also goes for employees who hope to be promoted into supervisory positions. . . . Nip These Activities in the Bud . . . Don't let your employees [p]ost pin-up photographs on the walls[, or t]ell sexual jokes or make innuendos.36
Another writes, in a piece called Not Sure What Constitutes Sexual Harassment? Take a Look: "If you think there's any chance that what you are doing is unwelcome or offensive, knock it off."37 An Employee Relations Law Journal article on religious harassment asserts:

[A]n employer's incentive to prohibit conduct and speech that might constitute harassment has increased based on the Civil Rights Act of 1991, which subjects employers to liability for emotional distress and punitive damages. To avoid liability, the prudent employer will proscribe all speech and conduct that may constitute harassment. The possibility of creating a "chilling effect" from prohibiting speech and conduct that may constitute harassment is outweighed by the risk of significant liability.38

The Sexual Harassment Prevention Game, a board game that is intended for use in employee training programs and that has been endorsed by the National Public Employees and Labor Relations Association, suggests the following:

A female janitor, offended by posters of partially clad female bodybuilders taped on the locker room wall, complains of sexual harassment. The pictures were hung by another female janitor using them as inspiration for pumping iron.
What should be done? [Answer:] Remove the posters that are found offensive. . . .
Confused about harassment?

Well, then follow [the game creator's] advice.
Don't say or do anything around an employee or co-worker that you wouldn't do around your spouse, your child, or dear old mom.39

Likewise, consider the four policies proposed in the Practicing Law Institute's Sample Sexual Harassment Policies.40 All begin by paraphrasing the EEOC sexual harassment guidelines, which say that harassment includes "verbal . . . acts" that "create[] an intimidating, hostile or offensive working environment" (no mention of severity or pervasiveness here). Then they get down to details:

[From the first policy:] Prohibited Conduct . . . Examples of conduct which could be considered sexual harassment include: . . . sexually suggestive jokes . . . directed toward another . . . ; the open display of sexually oriented pictures, posters, or other material offensive to others . . .
[From the second:] Examples of sexual harassment include, but are not limited to . . . repeated sexual jokes . . . and display in the work place of sexually suggestive objects or pictures.
[From the third:] What Is Sexual Harassment? . . . Gender Harassment: Generalized gender-based remarks and behavior. . . .
[From the fourth:] [T]he following is a partial list of conduct which may be considered unwelcome and which will not be tolerated . . . . Any sexually-oriented . . . remarks[] or jokes . . . made in the presence of any employee who indicates . . . that such conduct in his or her presence is unwelcome; . . . Any displays [of] materials that are in any way sexually revealing, sexually suggestive, sexually demeaning or pornographic.41

There's no proviso that an occasional sexually themed joke or "sexually oriented picture" is permissible, so long as it's neither severe nor pervasive. The policies--just like Professor Epstein's proposed policy--on their face condemn every such incident; and, of course, what else could they do? These are not hysterical overreactions of the misinformed. They are exactly what one should expect from reasonable, prudent lawyers giving advice on how to avoid liability in the real world.42

Employers are in fact enacting such broad policies,43 and are indeed suppressing individual incidents of offensive speech. When a Florida city found that "frequent sexual jokes and innuendos among employees [created] a hostile work environment," the city announced "a `zero-tolerance' policy on sexual humor."44 When a professor at Penn State complained that a print of Goya's Naked Maja hanging in a classroom constituted sexual harassment, the school administration removed the painting, citing as one reason the risk of harassment liability.45 When an employee at Murfreesboro (Tenn.) City Hall complained about a painting depicting a partly naked woman, the City Attorney had it taken down, saying:

I feel more comfortable siding with protecting the rights under the Title VII sexual harassment statutes than . . . under the First Amendment. . . . We wouldn't permit that type of drawing or picture to hang in the fire hall. As far as I'm concerned, a naked woman is a naked woman.46

In both of the last two cases, the paintings probably couldn't have created a hostile environment by themselves, even in the view of jurors who most dislike nudes or who are most convinced that "nude or seminude photographs of women . . . harm[] women by encouraging men to view them as sex objects."47 But surely the employers couldn't say to their employees: "Well, a nude here or there is fine, but if any of you puts up a picture that causes the aggregate to go over the severe-or-pervasive threshold, you'll be disciplined." To prevent liability, the employer has to suppress each individual picture.48

This is also why many injunctions in harassment cases ban isolated statements. One court, for instance, has ordered an employer and its employees to "refrain from any racial, religious, ethnic, or other remarks or slurs contrary to their fellow employees' religious beliefs"49--no severe-or-pervasive threshold there. Another injunction prohibited, among other things, "derogatory bulletins, cartoons, and other written material" and "any racial, ethnic, or religious slurs whether in the form of `jokes,' `jests,' or otherwise."50 A third ordered the employer and employees to "cease and desist from . . . racial harassment in the workplace including, but not limited to, any and all offensive conduct and speech implicating considerations of race."51

Another court barred any "sexually suggestive, sexually demeaning, or pornographic"52 materials from the workplace, again without regard to whether they were severe or pervasive enough to create a hostile environment--a single Gauguin reproduction would have been a contempt of court.53 An amicus brief in the appeal of that case, signed by seventy-nine law professors (including, among others, Anthony Amsterdam, Erwin Chemerinsky, and Susan Estrich), explained that such a broad injunction against these "discrete acts" was necessary because "the court is both authorized and obligated to insure that the illegal activity will not recur."54 The courts and the professors realize that you can't simply enjoin everyone from "acting in a way that's so severe or pervasive as to create a hostile environment": if you want to make an injunction stick, you have to ban each individual statement.55

And if that's the way for courts to undo existing hostile environments, then it's also the way employers must act to prevent liability in the first place. Employers, after all, are also "obligated to insure" that harassment won't happen.56 As the seventy-nine law professors point out, to prevent a hostile environment, even "discrete acts" must be banned, and this is as true for preventive policies as for remedial injunctions.57

The employers' need to restrict any statement that might contribute to a hostile environment--even when the statement doesn't create the environment by itself--also illustrates another important point: Court decisions that even partly rely on certain statements tend to suppress that sort of statement more generally. Consider, for instance, Makhayesh v. Great Lakes Steel,58 in which a Muslim employee of Syrian descent sued for national origin and religious harassment. Part of the alleged harassment was direct, personal insults, but part was coworkers generally referring to Muslim religious leaders as "toilet seat[s]" and suggesting, in the context of the Gulf War, that the United States "nuke Iraq and Syria" and "go back [to Libya] and wipe them off the face of the earth."59 The Michigan Court of Appeals reversed a grant of summary judgment for the employer, and held that the evidence was sufficient to let the harassment claims to go to trial.60

How should a cautious employer respond to a holding such as this? It can't just say to its employees "It's fine for you to make offensive political statements about Iraq, Syria, Libya, and Muslim religious leaders, unless some other people are also mistreating the offended worker in other ways (about which you, the employee, might not even know)." So long as courts say that certain speech can contribute to a hostile environment, the cautious employer would be wise to restrict it. This may be why the Supreme Court has repeatedly made clear that the First Amendment is implicated whenever liability is based even in part on protected speech;61 any such liability will deter people from engaging in the protected speech as well as the unprotected conduct.62

Finally, consider the view of Professor Thomas Grey, a thoughtful and moderate scholar who was the architect of the Stanford Law School harassment restrictions. 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. 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.

IV. THE SPEECH THAT HARASSMENT LAW RESTRICTS

The scope of harassment law is thus molded by three facts:

1. On its face, harassment law draws no distinction among slurs, pornography, political, religious, or social commentary, jokes, art, and other forms of speech. All can be punished, so long as they are "severe or pervasive" enough to create a "hostile environment."

2. The vagueness of the terms "severe" and "pervasive"--and the fact that the law is implemented by employers, who have an incentive to oversuppress--means that the law may practically restrict any speech that an employer concludes might be found by a fact-finder to be "severe or pervasive" enough.

3. Finally, because an employer is liable for the aggregate of all its employees' speech, wise employers will bar any sort of statement that might, if repeated by enough people, be "severe or pervasive" enough to create a hostile environment.

Putting all this together, harassment law potentially burdens any workplace speech that's offensive to at least one person in the workplace based on that person's race, religion, sex, national origin, age, disability, veteran status or, in some jurisdictions, sexual orientation, marital status, political affiliation, citizenship status, or personal appearance, even when the speech is political and even when it's not severe or pervasive enough to itself be actionable.

The evidence I have set out--the best guess as to how a cautious employer would behave, the policies recommended by employment lawyers, the policies actually implemented by some employers, the injunctions issued by courts, the logic of the seventy-nine law professors' brief, the justification provided in the educational context by Professor Grey, even the recommended policy given by Professor Epstein herself--all points towards this. 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. Many employers will live dangerously--from prejudice, ignorance, or even a commitment to free expression. Many offended employees won't complain. Many fact-finders will apply high thresholds of "severity" and "pervasiveness" rather than low ones.

But this is true of all speech restrictions. Sexually themed literature wasn't completely suppressed by pre-1960s restrictive obscenity laws. Sedition laws are notoriously ineffective at suppressing sedition. Even the broadest libel laws would be vastly underenforced, and juries can exhibit unjustified hostility towards libel plaintiffs as well as unjustified sympathy.

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?67 The answer appears to be what I outline above: a broad prohibition on a wide range of isolated statements.

It's a mistake to hide behind the supposed shield of the severity and pervasiveness requirements. Harassment law puts at risk speech--including religious proselytizing, bigoted political statements, sexually themed humor, and sexually suggestive art--whether or not it's severe or pervasive. Whether this burden is justified is a matter that's been extensively debated elsewhere;68 but there should be no denying that the burden exists.

Source: EUGENE VOLOKH link