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.