Reprinted from 99 Columbia L. Rev. (1999). Copyright Jack M. Balkin 1999. All rights reserved



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Why would employers acquiesce in sexual harassment by their male employees even if employers had no particular bias against women? In theory, employers could save money by staffing jobs with less well-paid women rather than with men, but this move might produce enormous labor disruptions, even with non-unionized workers. Under these conditions, acquiescence in labor segregation and reduction of employment opportunities to women is a second-best solution to maximizing profits. Employers will accept a sex-segregated workforce with only a few token women in “male” positions (enforced by many different forms of sex discrimination, including employee harassment) as a compromise with existing male employees who want to maintain higher wages and workplace status.35

In short, the different incentives of employers and employees may push them toward a common strategy. Together the employer and the employees create an undifferentiated “product”—a workplace culture that distributes job opportunities by sex and enforces this result through subtle and not-so-subtle forms of discrimination and harassment. Together the employer and employees construct the opportunity that women have in the workplace, creating a single, undifferentiated harm to workplace opportunity.

Congress has a right to prevent this result. Title VII gives women and minorities an equal right to pursue work and an equal right to workplace opportunities. Through Title VII, Congress and the courts have imposed on all employers an obligation to guarantee their employees a workplace free from sexual discrimination and harassment, whether caused by managers or by co-workers—just as OSHA regulations require employers to guarantee a workplace free from defective health and safety conditions caused by management or by co-workers. Employers must take steps to achieve nondiscriminatory workplaces, and this includes restricting employee speech and behavior that contribute to a hostile working environment. In effect, Congress has required employers to produce a certain kind of business culture in the workplace. The Supreme Court’s recent decisions in Ellerth and Faragher confirm this: Employers are strongly encouraged to create anti-harassment policies and complaint procedures as methods of monitoring their workers.36 The speech and behavior of individual employees is integral to the production of that culture, and the employer is in the best position to manage that culture, just as the employers have always managed business culture before the application of antidiscrimination laws.

In short, the problem of collateral censorship is really a question of the justifications for vicarious liability for speech acts. Because there are abundant good reasons to hold employers liable for employees’ creation of a hostile environment, the collateral censorship produced by Title VII does not offend the First Amendment.

II. Captive Audiences: The Hostile Environment as a Mechanism of Job Segregation

Even though hostile environment law does not involve unconstitutional collateral censorship, critics have raised other, more radical First Amendment objections. These fall into three basic categories. First, the courts’ standard of abusive conduct is unduly vague. Second, sexual harassment doctrines are overbroad because they prohibit speech that would clearly be protected outside the workplace. Third, sexual harassment doctrines make distinctions on the basis of content and viewpoint. On closer inspection, however, none of these objections prove fatal.

The vagueness argument proves entirely too much: It applies equally to most judge-made communications torts. For example, speech is defamatory “if it tends . . . to lower [an individual] in the estimation of the community or to deter third persons from associating or dealing with him.”37 Intentional infliction of emotional distress requires words or conduct “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community . . . [where] recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, ‘Outrageous!’”38 A judicial standard that requires severe or pervasive intimidation, ridicule, insult, and abuse does not seem unduly vague in comparison with these torts. In fact, much of the objection to the vagueness of hostile environment doctrine seems directed at the worry that employers will collaterally censor employees. Collateral censorship will certainly occur, but it does not make hostile environment law unconstitutional, any more than it makes defamation or securities fraud law unconstitutional.

The second argument—that harassing speech would be protected outside of the workplace—is more promising. But it, too, proves unavailing. Often speech that would be protected in the public square becomes unprotected when it occurs in special social situations involving special social roles. If a White House intern sleeps with the President and falsely denies it at a press conference, her false statement is protected. However, if she repeats the same denial in an affidavit or on the witness stand, she can be prosecuted for perjury. The same words inserted into a new social context create different responsibilities and different degrees of First Amendment protection.

Sexually harassing speech that would be protected outside of the workplace becomes unprotected within it because it occurs in a particular relationship of economic and social dependence—the employment relation—and because it involves a form of sex discrimination that (1) materially alters the terms and conditions of employment for women, (2) reinforces the lower status of women in employment relationships, and (3) preserves gender stratification in employment markets. In short, like perjurious statements, speech used to create a hostile working environment is unprotected not because of its content, but because in the social context in which it occurs, it is used as a method of employment discrimination. To understand why this is so, we must consider the purposes of employment discrimination law in more detail.

Employment discrimination law protects multiple interests. It prevents harms to material or economic interests like salary and working conditions. But it is also concerned with the social status of groups; it attempts to dismantle unjust forms of social stratification in the workplace that are visited upon individual people. These two concerns are intimately connected. Social stratification both within and outside of the workplace is often reflected in workplace arrangements that give some people greater material advantages and economic opportunities than others. In addition, stratification within the workplace helps reproduce the social status and material disadvantages of groups in the larger society: The structure of the workplace helps reinforce the social meanings of superiority and inferiority that attach to being white or black, male or female.39

Title VII’s prohibition against sexual harassment is a prohibition of a particular mechanism of sex discrimination. It must be read in light of Title VII’s larger purposes. It would be a great mistake to understand hostile environment doctrine simply as a set of rules designed to preserve civility, to protect individual dignity, or to prevent offense. Sexual harassment is prohibited because it is a status-enforcing mechanism—it employs offense, insult, and indignity to maintain the inferior status of women. Prohibitions on the use of this mechanism are designed to dismantle social subordination and to achieve civil equality, both within the workplace and, through their effects on the structure of work, in society as a whole.

Title VII protects against both material- and status-based harm because material and status elements are inextricably intertwined in the workplace, and cannot easily be separated. This should not be surprising: Common sense tells us that people with large corner offices do not receive lower salaries and reduced authority as a tradeoff, and people in cubicles don’t get juicier work assignments as compensation. Rather, people with high status and esteem usually also enjoy better salaries and working conditions. Conversely, people lower in the hierarchy of the workplace usually enjoy less-pleasant working conditions and lower compensation.

Because material benefits and social status are so deeply interconnected in the workplace, status-based harms that significantly alter people’s working conditions for the worse constitute employment discrimination under Title VII. That is why there is nothing particularly unusual or special about hostile environment liability. Hostile environment situations are just a special case of ordinary disparate treatment discrimination: They are harms to employees’ group status—imposed on account of their membership in the group—that materially alter their working conditions as individuals and, in the process, also reinforce the social status of the group.40

People also reproduce group status distinctions outside the workplace; for example, they engage in racist or misogynist speech or other speech that perpetuates racial or gender stereotypes. But the First Amendment generally does not permit recovery for these harms to group status.41 The First Amendment does permit recovery for defamation, but largely for injury to individual reputation rather than harm to group status.42

In the workplace, however, the First Amendment does allow people to recover for harms to group status when (and only when) such harms so materially alter workplace conditions that they constitute employment discrimination under Title VII. The test of material alteration is the test of Harris v. Forklift Systems, Inc. and Meritor Savings Bank v. Vinson: The plaintiff must face a workplace “permeated with ‘discriminatory intimidation, ridicule, and insult’ that is ‘sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment’” as judged by a reasonable person.43 The harms that a plaintiff suffers in these situations are harms of group subordination and employment discrimination; producing these harms is how subordination and discrimination are performed. Just as false speech before a jury is punishable not merely because it is false but because false speech in this setting is perjury, status-based harms in the workplace are sanctionable not merely because they are offensive or affronts to one’s dignity but because harms in this setting are mechanisms of employment discrimination. They are forms of disparate treatment that help sustain job segregation in the workplace.

The method of employment discrimination we are concerned with here operates by surrounding the worker in a hostile or abusive environment that he or she cannot easily escape; hence the term “hostile environment” liability. Recognizing how employment discrimination works through the creation of a hostile environment helps us understand the connection between the underlying purposes of Title VII—combating stratification and status reinforcement in the workplace—and the doctrines of the First Amendment, which permit content-based regulation to protect “captive audiences.” Simply put, a person trapped in a hostile work environment is a “captive audience” for First Amendment purposes with respect to the speech and conduct that produce the discrimination. Put another way, hostile environments do the work of job segregation by making workers captive audiences. Although courts created the captive audience doctrine for other situations, it actually makes better sense in the context of the workplace.44 Indeed, I shall now argue that this doctrine is best understood through the lens of Title VII’s purposes.

Generally speaking, people are captive audiences for First Amendment purposes when they are unavoidably and unfairly coerced into listening. According to the Supreme Court, the paradigmatic case of a captive audience involves assaultive speech directed at the home.45 The Court’s other major example has been people riding on public buses who cannot avoid looking at political advertisements.46

Without further theorization, captive audience doctrine can be a troublesome idea. A broad reading of the captive audience doctrine “would effectively empower a majority to silence dissidents simply as a matter of personal predilections.”47 One could regulate offensive speech based on rather vague notions of captivity. Thus, it is not surprising that First Amendment scholars have tried to recast captive audience doctrine as really a doctrine limited to speech aimed at the home, where courts view privacy concerns as at their highest.48 So understood, the “captive audience” doctrine is not about captive audiences at all, but about the special nature of particular places like the home.49

I believe that the articulation of the captive audience doctrine by both courts and commentators has been mistaken. It is both over- and underinclusive. There is nothing talismanic about the home for purposes of captivity. So-called captive audiences in the home can throw away junk mailings, change the dial, activate v-chips, operate the channel blocking capabilities of cable boxes, install filtering software, or, if all else fails, disconnect the cable service, turn off the television, and stop subscribing to an Internet service provider.

Nor is the home an unalloyed example of “privacy.” In the Information Age, we increasingly receive information in our homes rather than in public spaces. New technologies like the Internet redraw and even collapse the boundaries between public and private spaces. One can participate in public discourse and public deliberation while sitting at the keyboard dressed in one’s underwear. This was already true with respect to television; it is even more true in the case of interactive media like the Internet. In most cases the protection of children and parental control over children are much better justifications for regulation of content than captive audience doctrine.50

Conversely, limiting captive audience situations to the home misses the point of the metaphor of captivity—that a person must listen to speech because he or she is practically unable to leave. Children may be subject to discipline in the home, but for most adults, the place they are most subject to the discipline of others and least free to leave is at work. Economic coercion leaves many workers unable to avoid exposure to harassing speech. Employees are a much better example of a captive audience than the so-called paradigm case of people sitting in their homes.

Captivity in this sense is a matter of practicality rather than necessity. It is about the right not to have to flee rather than the inability to flee. The Supreme Court has suggested that people riding in buses subjected to political advertisements were a captive audience; but surely these people could have chosen other forms of transportation albeit at greater expense and inconvenience. Even people in their homes are not physically prevented from leaving them. The point of captive audience doctrine, however, is that they should not have to be put to such a choice. The coercion brought upon them is unfair. In like fashion, minimum wage workers may have to move from job to job to avoid harassment. But the question is not whether there is another equally low-paying job available. The question is whether they should have to leave a job to avoid being sexually harassed.51 It would undermine the central purpose of Title VII to argue that it gave workers no right to stay in a job free from sexual harassment. Moreover, as noted before, the kind of employment discrimination at issue here promotes gender segregation in job opportunities precisely by surrounding the plaintiff in a hostile environment of speech and conduct. If the plaintiff’s only remedy is to leave, the mechanisms of job segregation will simply proceed unabated.

Captive audience doctrine should not focus on particular spaces like the home. Rather, it should regulate particular situations where people are particularly subject to unjust and intolerable harassment and coercion. Captive audience doctrine, like the doctrines of Fourth Amendment privacy, should protect people in coercive situations, not places.52 “The workplace” is not a place; it is a set of social relations of power and privilege, which may or may not have a distinct geographical nexus. If a male supervisor makes an obscene phone call from his home to a female subordinate in a hotel room, this unwelcome behavior can and should contribute to a hostile work environment, even though both supervisor and subordinate are miles away from the office. Geographical proximity may be relevant to our judgments of the unreasonableness of a practice and the discomfort produced by it, but it is hardly necessary to achieve sex discrimination. As the workplace becomes more and more mediated by e-mail and the Internet, the geographical conception of captive audience doctrine will become increasingly unwieldy. The telecommunications revolution we are currently undergoing should help us recognize that what is at stake are social relations of power and dependence which, for convenience, we identify with a geographical metaphor.53

The practical necessities of earning a living and the economic coercion inherent in the social relations of the workplace create captive audience situations; but this does not mean that the workplace itself should be treated as a First Amendment-free zone. In fact, the workplace should be an arena of special, not lessened, free speech protection. Precisely because people spend so much of their lives in the workplace, the workplace is an important site of public discourse.54 Much employee speech in the workplace is not, nor should it be considered, exclusively “managerial,” “instrumental,” or “private.” We may talk more about public matters, sports, gossip, politics, and the affairs of the day at our workplace than we do at home. The problem with existing employment law is that it gives employers too much power to control the speech of employees on every subject, not simply on matters of sex and sexuality.

One way of justifying sexual harassment liability in the workplace would be to make a categorical distinction between the world of public discourse and the world of the workplace. Thus, one might argue that “there are good reasons for the law to regard persons as autonomous within the context of political deliberation, but there are equally good reasons for the law to regard persons as dependent within the workplace.”55 However, because the workplace is also an important site of public discourse, the law cannot simply insist that workers are to be regarded as dependent in all their speech interactions in workplace settings. Otherwise, Congress could regulate virtually all workplace speech. Put in the language of captive audience doctrine, workers would be captive audiences for all purposes.

That is why it is important to understand that the basis of captive audience doctrine is social relations rather than geographical places. Sexual harassment is a form of sex discrimination that maintains sexual stratification and that occurs in the context of the economic dependency of work relations. Put another way, sexual harassment is a device through which sexual stratification of the workplace is achieved or maintained, using the economic dependency of workers as a powerful form of leverage. Thus, the law may regard workers as dependent and not autonomous with respect to speech that helps achieve or maintain such stratification, but not with respect to other speech.

Critics of hostile environment liability miss this point, I think, when they argue that “[h]arassment law, if viewed as an attempt to protect a captive audience, is . . . underinclusive” because it only applies to speech that “creates a hostile environment based on race, sex, religion or national origin.”56 The point is precisely that people are almost never captive audiences for every purpose, even in the workplace. They are only captive audiences in the workplace with respect to certain forms of unjust coercion that use the employee’s economic dependence as a springboard. Sex discrimination is one of those situations. Another is the use of economic coercion to prevent or hinder decisions about unionization, as illustrated in labor cases like NLRB v. Gissel Packing Co.57

In Gissel the Supreme Court upheld an NLRB order requiring an employer to bargain with a union that had lost an election. The election was held to be tainted by the employer’s truthful statements that election of a union could lead to closing of the employer’s plant or, if the union called a strike, to a transfer of operations. Professor Kingsley Browne, a critic of hostile environment liability, insists that “[t]he reasoning of Gissel does not support a general governmental right to regulate speech in the workplace.”58 I quite agree. Gissel holds only that when unfair employment practices make use of the coercion already inherent in the employment relationship—including practices involving truthful statements—the government may step in to regulate workplace speech in order to promote equality values. The same is true of captive audience doctrine as applied to the workplace. Captive audience doctrine is best understood as limited to employment situations where speech and conduct together will help perpetuate job segregation or other forms of employment discrimination that Congress has a right to prevent, just as in Gissel Congress had a right to prevent attempts to hinder employees from bargaining freely.59

In short, we should not confuse the economic dependence of employees with their ability to participate in public discourse about the things that matter to them. Precisely because workers are economically dependent within the workplace, but engage in public discourse there, Congress might want to make them more autonomous within the workplace by guaranteeing them certain speech rights against their employers. This means, for example, that political speech by employees should be exempted as a basis for hostile environment liability as a matter of statutory construction and that Congress might even want to take positive steps to protect such speech from retribution by employers.60

Clearly some political speech can help contribute to sexual stratification in the workplace, at least at the margins. But it is unlikely that in most cases it is the major contributor. Working through the facts of actual cases, one is more likely to find pranks, taunts, sexual suggestions, and personal invective than political agitation as the basic technology for creating hostile environments.61 Because political speech is valuable, and because it contributes only marginally to sexual stratification, courts should exempt it.62 Doing so may also ameliorate some of the effects of collateral censorship, because employers can be assured that they will not be held liable for explicit political rhetoric by their employees.63

Some commentators have tried to offer a distinction between directed and non-directed speech; that is, between speech specifically directed at a particular individual or a particular set of individuals (such as face-to-face insults), and speech that is not.64 Only the former can form the basis of hostile environment liability, while the latter is exempted. I think a better distinction is between “open” and “hidden” speech; that is, between speech that openly contributes to preserving sexual stratification—putting women in their place—and speech that is relegated to private consumption by willing participants or private conversation among willing listeners either at the workplace or away from it. Take the case of pornography, the classic example of non-directed speech. Employees who keep pornography in their desk drawers out of sight should be distinguished from employees who keep pornography prominently displayed around the workplace where co-workers are likely to see it. Male employees who tell each other dirty jokes not intended to be overheard by female co-workers should be treated differently than employees who do so openly in order to distress and offend their female counterparts. The point is that some speech is not intended for general consumption, particularly speech that occurs out of public view and away from other co-workers. Employees can avoid exposure to this speech with relatively little effort and the burden should be on them to do so. Thus, as a matter of statutory construction, and in order to avoid constitutional problems, courts should not consider “hidden” or “non-public” speech between willing participants as constituting a hostile environment, even if it is not overtly political in character. The same should apply to “after-hours” speech and gossip between willing participants that is not intended to be overheard by co-workers.65

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