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

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One reason why the open/hidden distinction is superior to the directed/non-directed distinction is that the former is more in keeping with the purposes of hostile environment liability. Recall that an individual employee’s comment or expression may not by itself constitute a hostile environment, but many different acts taken together can. This makes sense because, from the perspective of the female or black employee, the hostility of environment is experienced as a whole, not in isolated bits. It is the environment as a whole—and the felt sense that women or minorities are poorly regarded or unwelcome in the workplace—that preserves or maintains sexual or racial stratification. Thus, the open/hidden distinction imagines the cumulative effect of expression from the perspective of the victim of the hostile environment, who experiences it as a gestalt. By contrast, the directed/non-directed distinction looks at the issue of hostile environment from the perspective of the individual perpetrator, who may well not understand how his or her non-directed expression contributes to an overall feeling of unwelcomeness or second-class citizenship.

Although commentators have made much of the distinction between directed and non-directed speech, this distinction will probably matter little to employees in practice, because of collateral censorship. Employers may well decide that pornography should be kept out of the workplace entirely, whether or not it is thrust in the face of unwilling co-workers; they may collaterally censor their employees from non-directed as well as directed speech as an extra precaution. But, as argued before, this collateral censorship is not unconstitutional.

There is thus a certain irony in advocating the directed/non-directed distinction and raising a collateral censorship objection, as critics of hostile environment liability sometimes do. If collateral censorship is really a constitutional problem, as the critics insist it is, it will not be eliminated by restricting liability to directed expression.

Indeed, I would go even further and argue that many employers may not even respect the open/hidden distinction fully in their policies. For example, it is entirely possible that many employers will choose to prohibit the private possession of pornography at work, even if it is kept hidden at all times. On the other hand, employers are much more likely to respect the open/hidden distinction in other ways: Employers might well decide that what employees say after hours or out of earshot of unwilling listeners on their lunch break is their own concern.

The final constitutional objection to hostile environment law is that its judge-made doctrines are content- and viewpoint-based. Once again, this proves too much: The same charge could be leveled against defamation, fraud, and most other communications torts. Juries in defamation cases are required to make content-based judgments about what kinds of statements would hold people up to shame or ridicule in the community and to assess damages based on the degree of injury to reputation. Moreover, liability for defamation clearly depends on viewpoint. If a defendant falsely says “Smith is a crook,” she may be subject to liability, but not if she falsely says “Smith is an honest man.”

If status-based harms are to be protected at all, some content-based and even viewpoint-based distinctions are inevitable. As we have seen, Title VII appropriately protects workers from a limited class of status-based harms because protecting workers from these harms is essential to guaranteeing equality in the workplace. Thus, it makes perfect sense that a sign saying “Sarah is Employee of the Month” should not give rise to liability, while a sign reading “Sarah is a dumb-ass woman”66 could form part of a hostile environment case. These content-based distinctions are adapted to the very reason why status-based or dignitary harms may be protected in the first place.67

III. The Deeper Issue: Employer Control

Critics of sexual harassment law have offered many horror stories about employer censorship. Most of these involve employer decisions that are overzealous, reflect traditional or puritanical sexual mores at odds with Title VII’s promise of sexual equality, are products of mindless bureaucracy, or are plain idiotic.68 They have not been required either by the actual doctrines of Title VII or by prudent compliance policies. Nor is this surprising. By and large federal judges have been quite careful to limit liability for hostile environments to situations of severe or pervasive worker abuse. Indeed, feminist legal scholars have criticized judges for construing the law too narrowly.69

There is some irony in libertarian complaints about employees’ freedom of speech. In America the state has generally offered very little protection for employee speech. The traditional common law rule has been that employees can be fired at will absent a contractual provision to the contrary; in other words, unless employees have sufficient bargaining power to demand “just cause” or other security provisions in their contract, the employer can sanction or fire them for virtually any reason,70 including displeasure with their speech, even their political speech. The common law regime is still the default rule today, and it provides employers with one of their most potent weapons for shaping the culture of the workplace and the behavior of their employees. American law is in marked contrast with that of many other countries. In Europe, for example, employees often enjoy more substantial rights against arbitrary discharge.71

Thus, sexual harassment doctrines do not pose a simple conflict between some employees’ liberty and other employees’ equality. The question is not whether employees will have freedom of speech, but how employers will control employee speech—whether they will do so in response to the incentives produced by Title VII or for their own purposes.

Blaming employee censorship on Title VII diverts our attention from a larger issue: Employers exercise considerable and sometimes tyrannical control over the speech and behavior of their employees. Throughout history American employers often have been deeply interested in control over their workers and in the culture of the workplace. They are no less interested than the government in inculcating social norms of appropriate speech and behavior. Often they go even further, imposing elaborate dress codes and rules of social etiquette. They seek to inculcate norms they believe will increase or sustain productivity. Employers tend to like employees who are “team players” and work for the good of the enterprise. They will even tolerate employee behavior that is racist, sexist, unjust, or anti-social, as long as it promotes workplace cohesion and morale and is not bad for business.

In fact, the most important counterweights to the employer’s power to shape workplace culture through hiring and firing decisions are antidiscrimination laws. Without the incentives created by sexual harassment law, employees are simply remitted to the economic and social control of employers. In other words, First Amendment challenges to sexual harassment law are a defense of employer prerogatives presented in the guise of worker liberties.

In the long run, employers will not necessarily lose much control over the workplace because of sexual harassment law. To the contrary, compliance with government regulation is often not a danger but an opportunity. Employers will use sexual harassment law as a new device for controlling their subordinates, by combining legal compliance with other bureaucratic and economic goals. Many tales of unjust compliance practices can be understood in precisely this way. The excuse of sexual harassment liability allows employers to impose ever new controls on employee behavior during an age when employees are spending more and more time at work and tend to rely more and more on the workplace to meet their partners.

When First Amendment challenges are raised to sexual harassment law, civil libertarians should not be diverted from the deeper issues of employer control and employee freedom. We can protect the First Amendment best by following the law as it is written—by awarding damages only in cases where severe or pervasive abuse materially alters employment conditions. But we should also not forget to protect employees—all employees—by working for greater speech rights against their employers than American law has seen fit to give them. For many employees, those are the speech rights that really count.

1 * Knight Professor of Constitutional Law and the First Amendment, Yale Law School. My thanks to Bruce Ackerman, Akhil Amar, Ian Ayres, Dan Kahan, Sandy Levinson, Vicki Schultz, Reva Siegel, and Eugene Volokh for their comments on previous drafts.

2.See, e.g., Kingsley R. Browne, Title VII as Censorship: Hostile-Environment Harassment and the First Amendment, 52 Ohio St. L.J. 481, 548 (1991) [hereinafter Browne, Title VII as Censorship]; Kingsley R. Browne, Workplace Censorship: A Response to Professor Sangree, 47 Rutgers L. Rev. 579, 580–85 (1995); Jules B. Gerard, The First Amendment in a Hostile Environment: A Primer on Free Speech and Sexual Harassment, 68 Notre Dame L. Rev. 1003, 1033–34 (1993); Eugene Volokh, Freedom of Speech and Workplace Harassment, 39 UCLA L. Rev. 1791, 1846 (1992) [hereinafter Volokh, Freedom of Speech]; Eugene Volokh, How Harassment Law Restricts Free Speech, 47 Rutgers L. Rev. 563, 567 (1995) [hereinafter Volokh, How Harassment]; Eugene Volokh, What Speech Does “Hostile Work Environment” Harassment Law Restrict?, 85 Geo. L.J. 627, 647 (1997) [hereinafter Volokh, What Speech].

3.See, e.g., Nadine Strossen, The Tensions Between Regulating Workplace Harassment and the First Amendment: No Trump, 71 Chi.-Kent L. Rev. 701, 704 (1995) (“Even the most diehard free speech absolutist recognizes that the speech involved in quid pro quo harassment is tantamount to threats or extortion.”); Volokh, Freedom of Speech, supra note 1, at 1800 (quid pro quo harassment is no more protected than “any other form of threat or extortion”).

4.In this Essay I shall primarily be concerned with sexual harassment, and, to a lesser extent, racial harassment. I do not discuss religious harassment. I think that accusations of religious harassment often raise distinctive problems. For example, some employees might object to proselytization by co-workers or provocative displays of religious paraphernalia. Although both of these can undoubtedly make workers feel uncomfortable, neither is the precise equivalent of racist and sexist speech designed to drive blacks and women from the workplace. The rules that govern these situations must be tailored to take these differences into account.

5.See, e.g., Browne, Title VII as Censorship, supra note 1, at 505, 510–13, 548; Volokh, Freedom of Speech, supra note 1, at 1809–14; Volokh, What Speech, supra note 1, at 635–37.

6.See, e.g., Browne, Title VII as Censorship, supra note 1, at 544–47. For related reasons, Eugene Volokh argues that hostile environment law should be limited to face-to-face verbal harassment directed at particular individuals. See Volokh, Freedom of Speech, supra note 1, at 1846. This implies that other forms of communicative harassment, even if they materially alter working conditions to the disadvantage of women and minorities, are protected speech and may not be limited on the basis of content, viewpoint, or subject matter. See id. at 1849.

7.Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (quoting Meritor Sav. Bank v. Vinson, 477 U.S. 57, 65, 67 (1986)).

8.See Harris, 510 U.S. at 21–23.

9.524 U.S. 742 (1998).

10.524 U.S. 775 (1998).

11.The Supreme Court’s current doctrine is that

[a]n employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee. When no tangible employment action is taken, a defending employer may raise an affirmative defense to liability or damages, subject to proof by a preponderance of the evidence. The defense comprises two necessary elements: (a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. While proof that an employer had promulgated an anti-harassment policy with complaint procedure is not necessary in every instance as a matter of law, the need for a stated policy suitable to the employment circumstances may appropriately be addressed in any case when litigating the first element of the defense. And while proof that an employee failed to fulfill the corresponding obligation of reasonable care to avoid harm is not limited to showing any unreasonable failure to use any complaint procedure provided by the employer, a demonstration of such failure will normally suffice to satisfy the employer’s burden under the second element of the defense. No affirmative defense is available, however, when the supervisor’s harassment culminates in a tangible employment action, such as discharge, demotion, or undesirable reassignment.

Burlington Indus., 524 U.S. at 765 (citation omitted).

12.See Faragher, 524 U.S. at 799 (collecting cases); see also Sexual Harassment, 29 C.F.R. § 1604.11(d) (1998) (EEOC Guidelines applying negligence standard).

13.Employers are not completely free to censor employee speech, of course; they are also constrained by wrongful discharge law, union rules, and civil service regulations.

14.See Browne, Title VII as Censorship, supra note 1, at 505, 510–13; Volokh, Freedom of Speech, supra note 1, at 1809–14; Volokh, What Speech, supra note 1, at 635–37.

15.I borrow this term from Michael I. Meyerson, Authors, Editors, and Uncommon Carriers: Identifying the “Speaker” Within the New Media, 71 Notre Dame L. Rev. 79, 116, 118 (1995).

16.See Browne, Title VII as Censorship, supra note 1, at 510–13 (arguing that state action requirement is satisfied when employers censor employees); Volokh, Freedom of Speech, supra note 1, at 1816–18 (arguing that state action exists when employers create anti-harassment policies out of fear of government liability, but not if they create the same policies for other reasons).

17.376 U.S. 254, 283 (1964) (holding that First Amendment requires proof of actual malice in libel actions brought by public officials against critics of their official conduct).

18.418 U.S. 323, 350 (1974) (extending New York Times rule to punitive damages sought by private figures).

19.419 U.S. 245, 253–54 (1974).

20.See id. Employers could argue for a stronger and additional privilege to void the libel laws on the grounds that fear of liability forces them to silence their employees more than they would silence themselves. For example, a newspaper might argue that defamatory statements against private figures should be held to an actual malice standard rather than the negligence standard permitted by Gertz, because newspapers will be likely to censor their employees much more severely than they would censor their own speech under the negligence standard. There is no indication, however, that the Court applies a different standard for employers who publish the speech of their employees and employers (or other persons) who publish their own speech.

21.See generally Burt Neuborne, The First Amendment and Government Regulation of Capital Markets, 55 Brook. L. Rev. 5 (1989) (discussing the SEC’s regulation of false and misleading speech about capital formation).

22.See W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 69, at 499–501 (5th ed. 1984) (describing standard justifications for respondeat superior liability).

23.361 U.S. 147 (1959).

24.Id. at 153.

25.Id. at 154.

26.See Meyerson, supra note 14, at 118 n.259.

27.This may be due to the fact that the Court describes the phenomenon as “self-censorship.” Because of the state statute, the bookstore owner cannot sell the books he or she might otherwise want to. But the most serious form of censorship is actually the censorship of the book’s author and publisher, not of the bookstore, which acts mostly as a distributor or conduit for the censored speech.

28.See Restatement (Second) of Torts § 578 (1977) (“Except as to those who only deliver or transmit defamation published by a third person, one who repeats or otherwise republishes defamatory matter is subject to liability as if he had originally published it.”).

29.See id. § 581 (“[O]ne who . . . delivers or transmits defamatory matter published by a third person is subject to liability if, but only if, he knows or has reason to know of its defamatory character.”).

30.A fortiori, telecommunications companies that act as common carriers receive the distributor’s privilege. See id. § 581 cmt. f; see also Anderson v. New York Tel. Co., 320 N.E.2d 647 (N.Y. 1974) (holding telephone company not liable for defamation delivered across telephone lines).

31.Indeed, the argument for distributor privileges or other forms of reduced liability has regularly been made in cyberspace, because Internet service providers and computer bulletin boards are unable to supervise the content that flows through them. See, e.g., James Boyle, Intellectual Property Policy Online: A Young Person’s Guide, 10 Harv. J.L. & Tech. 47, 103 (1996); David J. Conner, Cubby v. Compuserve, Defamation Law on the Electronic Frontier, 2 Geo. Mason Indep. L. Rev. 227 (1993); Meyerson, supra note 14; Henry H. Perritt, Jr., Tort Liability, the First Amendment, and Equal Access to Electronic Networks, 5 Harv. J.L. & Tech. 65, 106–08 (1992); Robert Charles, Note, Computer Bulletin Boards and Defamation: Who Should Be Liable? Under What Standard?, 2 J.L. & Tech. 121, 145–50 (1987); Philip H. Miller, Note, New Technology, Old Problem: Determining the First Amendment Status of Electronic Information Services, 61 Fordham L. Rev. 1147, 1197–1201 (1993); see also Religious Tech. Ctr. v. Netcom On-Line Communication Serv., Inc., 907 F. Supp. 1361, 1377–78 (N.D. Cal. 1995) (“If Usenet servers were responsible for screening all messages coming through their systems, this could have a serious chilling effect on what some say may turn out to be the best public forum for free speech yet devised.”).

32.47 U.S.C. § 230(c)(1) (Supp. II 1996); see Blumenthal v. Drudge, 992 F. Supp. 44, 49–52 (D.D.C. 1998). In fact, the 1996 Act gives Internet service providers more protection than the traditional distributor’s privilege, because knowledge of defamatory content is not sufficient to subject them to liability. See Zeran v. America Online, 129 F.3d 327, 331–32 (4th Cir. 1997), cert. denied, 524 U.S. 937 (1998).

33.The argument for the constitutionality of collateral censorship in hostile environment cases is in some ways even stronger than in defamation and securities fraud cases because most courts currently hold the employer liable only if the employer knows or should have known of the harassment and does not take prompt corrective action. See supra text accompanying note 11. In other words, employers are not held strictly liable for employee speech (as in other vicarious liability situations) but are only liable when they fail to exercise due care in rooting out and remedying hostile environments. Hence the degree of collateral censorship should, in theory, be less in these cases.

34.For an account of the connections between hostile environments and job segregation in the workplace, see Vicki Schultz, Reconceptualizing Sexual Harassment, 107 Yale L.J. 1683, 1756–61 (1998). As Schultz points out, “[h]ostile work environment harassment is an endemic feature of the workplace that is both engendered by, and further entrenches, the sex segregation of work.” Id. at 1760.

35.I am indebted to Vicki Schultz for this argument.

36.See Burlington Indus. v. Ellerth, 524 U.S. 742, 765 (1998); Faragher v. City of Boca Raton, 524 U.S. 775, 808–09 (1998).

37.Restatement (Second) of Torts § 559 (1977).

38.Id. § 46 cmt. d.

39.As Vicki Schultz explains:

[M]en’s advantage in numerous spheres of life depends on their superior status in the workplace; men’s status as superior wage earners and possessors of masculine work competence is also central to mainstream definitions of masculinity. Thus, it serves men’s interests to monopolize the most highly rewarded forms of work for themselves, and hostile work environment harassment provides a mechanism for doing so. In this analysis, wage work and work relations are not mere reflectors of gendered roles created elsewhere; they are important institutions for reproducing both gender inequality and gender identity.

Schultz, supra note 33, at 1761 n.409.

40.To be sure, some elements of hostile environments are not specifically directed at women and minorities but nevertheless effectively deny them equal opportunity in the workplace. These elements should be regarded as special cases of disparate impact discrimination, i.e., they involve business conditions and business decisions that have a disparate impact on women and minorities but are not justified by any business necessity.

41.This is implicit in the Supreme Court’s equation of speech producing these harms in the public sphere with speech producing other varieties of offensiveness. See R.A.V. v. City of St. Paul, 505 U.S. 377, 391–92 (1992) (arguing that the First Amendment protects both hate speech directed at Catholics and anti-Catholic bigots); see also Texas v. Johnson, 491 U.S. 397, 414 (1989) (“If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”). The First Amendment may permit recovery for “fighting words,” or for intentional infliction of emotional distress, see Chaplinsky v. New Hampshire, 315 U.S. 568, 571–72 (1942), but these categories are very limited and do not include all or even most racist or misogynist speech.

42.Compare Gertz v. Robert Welch, Inc. 418 U.S. 323, 341 (1974) (discussing compelling interest in protecting individual reputation), with Beauharnais v. Illinois, 343 U.S. 250, 263–64 (1952) (upholding group libel statute). Beauharnais has never been overruled but its precedential value is generally thought doubtful, especially after New York Times Co. v. Sullivan, 376 U.S. 254 (1964), and R.A.V. See Laurence H. Tribe, American Constitutional Law § 12-12, at 861 n.2, § 12-17, at 921 n.9, § 12-17, at 926–27 (2d ed. 1988).

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