In Defense of Title VII: Why Workplace Harassment Law is Constitutional

I recently stumbled upon an interesting dialogue at Slate titled "Free Speech vs. Workplace Harassment," in which Professors Eugene Volokh and Deborah Epstein debate whether harassment law, specifically Title VII of the Civil Rights Act of 1964, violates the First Amendment. With relatively sparse case law in this area, Epstein and Volokh both accuse the other of misrepresenting the facts of cases to suit her or his needs. On the whole, however, I tend to agree more with Epstein's "governmentalism" than Volokh's sometimes callous liberatarianism, even though he makes a very interesting argument. While I think that Epstein successfully proves that workplace harassment survives First Amendment strict scrutiny in this Georgetown Law Journal article (84 Geo. L.J. 399), I'll focus on Volokh's arguments in this post.

Volokh (and pretty much everyone else, for that matter) agrees that "quid pro quo" harassment (e.g. mandating sexual favors for continued employment) and "one-to-one" harassment (e.g. calling someone a racial slur directly) should remain prosecutable offenses under harassment law; he calls these "directed speech" (Comment: Freedom of Speech and Workplace Harassment, 39 UCLA L. Rev. 1791). It is with "undirected speech" that Volokh takes issue. This type of speech can contribute to a "hostile environment" if it is "severe or pervasive" enough.

If you pretend Jesus, Mo, and Ganesh are all at work, this comic would be a good example of the kind of undirected speech Volokh thinks should be protected (I know, I should cite a case, but there are plenty to be found on Volokh's site, and it turns out Professor Helle loves web comics).



Volokh wants to decriminalize what he calls "one-to-many" speech, and prevent the creation of a new exception to the First Amendment for harassing speech, for several reasons. To keep this post brief, I'll try to focus on what I consider his main points to be, but if you have the time, you should peruse his very extensive analysis of this issue.

Volokh argues that harassment law can restrict "political statements, religious proselytizing, legitimate art, sexually themed (perhaps not even misogynistic) jokes, and other kinds of speech that are generally seen as being entirely constitutionally protected."

He adds in the Slate dialogue that, because we spend a third of our lives at work, we need to be able to freely express ourselves while on the job. I would argue that because the state has an interest in keeping its residents employed, it has an interest in maintaining an environment in which workers don't feel uncomfortable or threatened. Even if we cast empathy aside, we must recognize that lower morale will eventually lead to lower productivity, as Deborah Epstein points out in her response (85 Geo. L.J. 649) to one of Volokh's law review articles.

Volokh also argues that employers will tend to err on the side of extreme caution when framing their harassment policies. He gives several examples of "zero-tolerance policies" that prevent all types of speech, regardless of whether it is severe or pervasive, for fear that an accumulation of individual expression will accrue to legally become harassment. But I'm not sure that this is acceptable evidence of a chilling effect on speech, and neither does Epstein, who asserts that zero-tolerance policies result from, among other things, poor legal advice. The burden of having to accomodate a law is not the greatest argument against that laws existence. Employers, she argues, have several options:

by educating workers about the scope of hostile work environment harassment law, training them to improve interpersonal communication, and creating grievance procedures that allow effective evaluation of and response to harassment complaints, an employer can protect itself from liability while allowing workers breathing room for expression.

Another argument against the constitutionality of workplace harassment law has to do with employer liability. Volokh gives the impression that an employer is liable for any and all hostile environment harassment that takes place on company grounds. But in the Berkeley Journal of Employment and Labor Law (17 Berkeley J. Emp. & Lab. L. 321), Oppenheimer cites Klessens v. United States Postal Service, where the employer was found not liable for a worker being subjected to continued sexual harassment due to lack of notification; even though Klessens filed complaints with her supervisor and, when met with further degradation from him, his supervisor. Still, the court found that the U.S.P.S. was not properly notified.

It seems to me that Volokh is exaggerating the dangers and free speech restrictions, especially when cases like Klessens's are so difficult to prove—which brings me to my final point. There is a societal need for harassment law, and any restrictions on free speech are the price we pay for striving toward an equitable society. In her law review article, Epstein points out that issues of power prevent women from being able to confront their harassers without access to the judicial system. In fact, even with that access, many do not come forward for fear of reprisal: "Their concern is well-founded; one study reveals that twenty-four percent of victims surveyed were fired because they complained about sexual harassment." (Epstein).

Our legislators, representing their constituents, decided that equality was a worthwhile goal with the Civil Rights Act of 1964. If we truly value making every workplace equally accessible to all, then hostile environment workplace harassment should be regulated by the government.