Sexual Harassment Training Courses
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
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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
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