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

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43.Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (quoting Meritor Sav. Bank v. Vinson, 477 U.S. 57, 65, 67 (1986)). It is important to emphasize that the law of sexual harassment requires a relatively high threshold of emotional, dignitary, or other status-based harm before the plaintiff states a valid claim that employment conditions have been materially altered in violation of Title VII. A high threshold is probably constitutionally necessary. However, as the Court pointed out in Harris, it need not constitute intentional infliction of emotional distress. See id. at 21–23.

44.See J.M. Balkin, Some Realism about Pluralism: Legal Realist Approaches to the First Amendment, 1990 Duke L.J. 375, 424:

I suggest that we might do well to shift the paradigmatic case of the captive audience from the passengers on the public buses or the child running through stations on the radio dial, to the employee working for low wages in a tight job market who is sexually harassed by her employer or co-worker.

See also Robinson v. Jacksonville Shipyards, Inc., 760 F. Supp. 1486, 1535 (M.D. Fla. 1991) (“female workers . . . are a captive audience in relation to the speech that comprises the hostile work environment.”); Richard H. Fallon, Jr., Sexual Harassment, Content Neutrality, and the First Amendment Dog That Didn’t Bark, 1994 Sup. Ct. Rev. 1, 43 (noting that although courts have not done so, the case for extending captive audience designation to workplaces is strong); Suzanne Sangree, Title VII Prohibitions Against Hostile Environment Sexual Harassment and the First Amendment: No Collision in Sight, 47 Rutgers L. Rev. 461, 515–18, 539–40 (1995) (defending captive audience analysis of workplace harassment); Marcy Strauss, Redefining the Captive Audience Doctrine, 19 Hastings Const. L.Q. 85, 89–103 (1991) (applying the doctrine to workplace harassment); Marcy Strauss, Sexist Speech in the Workplace, 25 Harv. C.R.-C.L. L. Rev. 1, 36 (1990) (arguing that employees “qualify for captive audience status”).

45.See, e.g., Frisby v. Schultz, 487 U.S. 474, 487 (1988) (upholding ban on residential picketing directed at a single house); see also FCC v. Pacifica Found., 438 U.S. 726, 748–49 (1978) (upholding FCC sanctions for indecent broadcast against radio station playing George Carlin’s “seven dirty words” monologue); Rowan v. United States Post Office Dep’t, 397 U.S. 728, 737–38 (1970) (upholding Post Office provision that allowed individuals to specify to the Postmaster General certain sexually explicit mailings they did not wish to receive); Kovacs v. Cooper, 336 U.S. 77, 87 (1949) (upholding ban on sound trucks to protect residents).

46.See Lehman v. City of Shaker Heights, 418 U.S. 298, 301–04 (1974) (plurality opinion) (upholding ban of political advertising on public buses on grounds that passengers are a “captive audience”).

47.Cohen v. California, 403 U.S. 15, 21 (1971).

48.See Fallon, supra note 43, at 18–19 (describing the Court’s justification for these restrictions as based on the “special characteristics of the home”); Volokh, Freedom of Speech, supra note 1, at 1832–33 (arguing that the doctrine is properly limited to the home).

49.See Fallon, supra note 43, at 18 (“When the so-called captive audience cases are read in conjunction, the character of the place seems more important than the degree of audience ‘captivity’ in explaining the applications of captive audience doctrine.”); Volokh, Freedom of Speech, supra note 1, at 1833 (arguing that the Supreme Court has never upheld a captive audience justification for content-based restrictions outside of the home).

50.See J.M. Balkin, Media Filters, the V-Chip, and the Foundations of Broadcast Regulation, 45 Duke L.J. 1131, 1137–39 (1996).

51.Vicki Schultz has described the “revolving door” phenomenon of women in low paying jobs who are continually forced to change jobs because of sex discrimination or harassment. See Vicki Schultz, Telling Stories about Women and Work: Judicial Interpretations of Sex Segregation in the Workplace in Title VII Cases Raising the Lack of Interest Argument, 103 Harv. L. Rev. 1749, 1826 n.287, 1839 (1990). These women find themselves on a perpetual exodus from jobs that are “a dime a dozen.” The phenomenon of these forced exits is not an argument against the application of captive audience doctrine to harassment law; it is an argument for it.

52.Cf. Katz v. United States, 389 U.S. 347, 351 (1967) (holding that the Fourth Amendment “protects people, not places”).

53.Deborah Epstein emphasizes the physical context of the workplace as important to captive audience doctrine. She reports that she can find no example of a post-Vinson case in which communications outside the workplace contributed to a hostile environment finding. See Deborah Epstein, Can a “Dumb Ass Woman” Achieve Equality in the Workplace? Running the Gauntlet of Hostile Environment Harassing Speech, 84 Geo. L.J. 399, 421–23 & n.128 (1996). But cf. Bundy v. Jackson, 641 F.2d 934, 940 n.2 (D.C. Cir. 1981) (pre-Vinson case in which supervisor’s call to employee at her home was part of hostile environment in conjunction with other abusive speech at workplace). Of course, the problem is what we will consider the workplace to be as more and more people work in geographically separated places.

54.See Cynthia Estlund, Freedom of Expression in the Workplace and the Problem of Discriminatory Harassment, 75 Tex. L. Rev. 687, 717–18 (1997). Indeed, Kent Greenawalt argues that workers are “captive speakers,” because they may have few other places to express themselves, and because “[w]hen people are working, the only place they can express themselves is within the workplace.” Kent Greenawalt, Fighting Words 86 (1995) (emphasis omitted).

55.Robert C. Post, The Perils of Conceptualism: A Response to Professor Fallon, 103 Harv. L. Rev. 1744, 1746 (1990).

56.Volokh, Freedom of Speech, supra note 1, at 1843.

57.395 U.S. 575 (1969).

58.Browne, Title VII as Censorship, supra note 1, at 514.

59.See Gissel, 395 U.S. at 618.

60.Political speech might be defined as speech intended to contribute to a discussion of public issues. The example that begins Professor Browne’s article—“Women do not belong in the medical profession; they should stay home and make babies!”—would presumably qualify under such an exemption if offered in a debate with a co-worker. Browne, Title VII as Censorship, supra note 1, at 481. Nevertheless, such a statement would certainly be evidence of intent to discriminate in a disparate treatment case if spoken by a supervisor and the person to whom it was spoken was subsequently denied a promotion.

Although I argue for exclusion of political speech as a matter of statutory construction in order to avoid potential constitutional difficulties, Kent Greenawalt takes a somewhat different approach. He has argued that we should make a distinction between a male construction worker who occasionally says to a female co-worker, “they should never have allowed women in these jobs,” and one who repeatedly greets her with this slogan every morning, even after she complains that she is an unwilling listener. Greenawalt, supra note 53, at 90–91. Greenawalt argues that even such (arguably) political speech that contributes to public discourse could become part of a hostile environment in these situations, because we could properly infer that the speaker’s intention was to harass or annoy rather than to express an opinion.

61.See Epstein, supra note 52, at 406–08 (describing recurring fact patterns in a number of cases).

62.Cf. Fallon, supra note 43, at 47 (arguing for a somewhat narrower exemption for speech “‘reasonably designed or intended to contribute to reasoned debate on issues of public concern’”) (citing Harvard Law School’s draft Guidelines Concerning Sexual Harassment).

63.Nevertheless, for reasons described below, employers may not take up this opportunity to lessen workplace speech rules.

64.See, e.g., Michael P. McDonald, Unfree Speech, 18 Harv. J.L. & Pub. Pol’y 479, 485 (1995) (“Speech uttered that is not directed toward specific individuals should never be regulated as harassment.”); Strossen, supra note 2, at 718 (noting importance of distinction between directed and non-directed expression); Volokh, Freedom of Speech, supra note 1, at 1846, 1868–69 (arguing that personal, directed, face-to-face insults and sexual propositions are regulable; non-directed speech, even if it cannot be avoided, is not regulable).

65.Nevertheless, such speech might be evidence of sex discrimination, or of other speech or conduct that would constitute a hostile environment. The directed/non-directed distinction becomes more significant with respect to this latter question. If two male employees tell dirty jokes to each other out of earshot, that is not very probative of whether they are contributing to a hostile environment in other contexts. But if they tell dirty jokes about one of their female co-workers, that may well be relevant. E-mail provides a particularly good example. If two male employees send each other private e-mail messages describing a female movie star’s particular charms in graphic detail, that is quite different from a discussion about one of their co-workers. Obviously many employers might wish to restrict or prohibit non-work-related discussions using company e-mail for any number of reasons, but certainly one is the possibility that such e-mail messages will later be used as evidence in a hostile environment case.

66.See Harris v. Forklift Sys., Inc., 510 U.S. 17, 19 (1993).

67.Cf. R.A.V. v. City of St. Paul, 505 U.S. 377, 383 (1992) (arguing that content-based discrimination within a category of unprotected speech is justified when it furthers the purpose for which the speech is unprotected). Not surprisingly, even Professor Volokh drops his objections to content- and viewpoint-based restrictions on harassment when the harassment is directed at a particular person. See Volokh, Freedom of Speech, supra note 1, at 1866–67.

Note, moreover, that under the logic of R.A.V., Congress is permitted to limit recovery for harassment only for those forms of employment discrimination that it prohibits, but not for harassment based on other subjects or based on other elements of a person’s identity. Hence, one may not argue that Title VII is unconstitutionally content-based because it does not cover harassment on all subjects, but only on the basis of race, sex, national origin, and religion. Congress is permitted to decide that discrimination on those grounds is more unjust, inflicts greater or more distinctive harms on its victims, or causes greater social problems than other forms of discrimination which it has chosen not to prohibit. See Wisconsin v. Mitchell, 508 U.S. 476, 487–88 (1993).

68.For a parade of horribles, see Volokh, What Speech, supra note 1, at 642–46.

69.See, e.g., Epstein, supra note 52, at 416–17 & n.113 (noting that scope of judicial enforcement has been “narrow” and “excessively restrained”).

70.See Cynthia L. Estlund, Free Speech and Due Process in the Workplace, 71 Ind. L. Rev. 101, 116–17 (1995).

71.See, e.g., Frances Raday, Individual and Collective Dismissal—A Job Security Dichotomy, 10 Comp. Lab. L. 121, 132 (1989) (noting that many European countries recognize the right to job security as a fundamental employment right).

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