Posted by Eugene Volokh:
"Hostile Work Environment" Harassment Case Based Partly on Playing of Radio
Show That Discussed Sex:
http://volokh.com/archives/archive_2009_06_07-2009_06_13.shtml#1244756205
I [1]blogged last year about [2]the panel decision, and I'm glad that
the [3]court has agreed to rehear it.
The panel decision helps illustrate how [4]hostile environment
harassment law may suppress constitutionally protected speech. The
panel held that Ingrid Reeves could proceed to trial with her hostile
environment harassment claim -- which is to say, that if the jury
agrees with her on the facts, it's entitled to award potentially
hundreds of thousands of dollars in damages -- even though the case
didn't involve any sexual extortion, any offensive touching, any
sexual propositions, or even any insults targeted to her personally.
Rather, her complaints, as described by the panel, were chiefly
related to "sexually crude language that offended her." A fairly small
part of the incidents involved sex-based insults ("bitch," "whore,"
and once "cunt") used to refer to women customers and another employee
behind their backs. There was also casual use of the word "dick," and
some sexually themed jokes (and one song) with pretty vulgar language,
overheard discussions about pornography, masturbation, and sex; one
incident in which Reeves saw pornography on a coworker's computer; and
the following:
Reeves was also offended by a radio program that was played every
morning on the stereo in the office [a morning program on
Birmingham's 107.7 FM during 2002-03, according to one brief -EV].
Discussions of the following material on the show offended her: (1)
breast size of female celebrities and Playboy Playmates; (2) sexual
arousal and women�s nipples as indications thereof; (3)
masturbation, both in general and with animals; (4) erotic dreams;
(5) ejaculation; and (6) female pornography. Advertisements for or
including the following material that were aired during the program
also offended her: (1) sexual favors; (2) a bikini contest that
instructed women to wear their most perverse bikinis; (3) a
statement that a woman was found in bed with three elves and a
candy cane; and (4) a drug called Proton that promised to increase
sexual performance, please a partner, and make the user a �sexual
tyrannosaurus rex.� When Reeves complained about the radio
programming, she was often told that she could play her own music
or change the station. She testified, however, that if she did so
the other employees would soon change the radio back to the
offensive program.
The panel expressly rejected the argument that, to constitute
discriminatory harassment "based on" sex, speech had to actually
specifically target the plaintiff as a woman (or, in other contexts,
as a black, Catholic, or whatever else). There's a good deal of
circuit precedent for this rejection -- but the consequence is that
any speech, including radio programs, overheard conversations, and the
like, that is "particularly offensive" to people because of their sex,
race, religion, and so on is punishable. The sexually themed material,
the court concluded, "was discussed in a manner that was ... more
degrading to women than men," which I take it reflects the view in
plaintiff's brief that "In these discussions, women were objectified
and demeaned." And because it implicitly expressed such degrading
views, it could be punishable as harassing based on sex.
As a matter of good manners, and sound business management, I gladly
condemn people who expose unwilling colleagues to such speech. The
employer -- a private entity that's not bound by the First Amendment
-- was free to restrict the speech, just as private Internet service
providers, schools, churches, malls, and householders are generally
free to restrict speech on their private property (setting aside a few
contrary state laws that are not relevant here).
But here the government is saying that this speech is legally
actionable, because it supposedly reflects a "degrading" perspective
on women. The speech does not fit within any First Amendment exception
-- there is no such exception for vulgarity, including relatively
nonpolitical vulgarity (understandable, given the impossibility of
defining the boundaries of such an exception). Nor was it said to a
particular person who has asked that such speech stop; I've argued
[5]before that such one-to-one speech might indeed be permissibly
restricted, and there is some Supreme Court precedent for this
one-to-one/one-to-many distinction. But when it comes to speech
[6]conveyed to willing listeners that is also heard by the willing
ones, or speech said to the (privately owned) workplace at large, the
government ought not be able to limit such speech through threat of
massive civil penalties, whether the penalties are imposed on the
speaker or on property owners that tolerate the speech..
What's more, the logic of the case (which expressly draws on racial
harassment caselaw and not just sexual harassment caselaw) extends far
beyond talk of sex. The reasoning would apply even more forcefully to
sexist political statements, sexist criticisms of politicians, racist
political statements, racist criticisms of politicians, radio shows
that condemn Islam and Muslims, radio shows that condemn atheism, and
the like. And harassment law has indeed been used in the past to
impose liability based on such political, religious, and social
commentary, see [7]here and, most recently, [8]here (anti-Islam,
anti-Muslim, and on occasion anti-Arab political statements).
On top of that, while harassment claims are generally not easy for
plaintiffs to win, they have a perfectly predictable deterrent effect
on employers, who don't want to risk losing them (or even litigating
them). If you're an employer, you hear about this case, and then
someone complains about allegedly sexually themed, religiously
offensive, sexist, or racist radio programs being played, or overheard
lunchtime conversations, what would you do?
I'm pretty sure that if you're rationally worried about litigation,
you'd order that the radio playing and the conversations stop, for
fear of government-imposed liability, and not just out of good manners
or a desire to promote morale. Nor would you tell employees that (say)
playing the radio program is just fine, so long as there isn't other
offensive speech involved. Among other things, when you as employer
are held liable for the aggregate of various kinds of speech by your
employees, the only way to keep that aggregate from becoming legally
actionable as an "offensive work environment" is by restricting each
statement that might add up to such an environment -- which includes
each offensive radio program, allegedly vulgar or sexist conversation,
and the like. I generally don't fault employers for reacting to the
reasonable fear of liability by restricting such speech. But I do
fault the legal system for imposing this sort of content-based,
viewpoint-based deterrent to speech.
Of course, many people are understandably upset about having to work
around this sort of vulgarity, or for that matter around political
speech that they find offensive based on religion, race, sex, and the
like. But, as I've argued [9]at length, preventing such offense --
whether in private workplaces, private educational institutions,
privately owned [10]places of public accommodation, or private housing
complexes -- by punishing or imposing liability for speech (outside
the narrow existing First Amendment exceptions) is not something that
the government should be allowed to do.
I should also mention that the special First Amendment status of
broadcast radio, under which some restrictions on vulgarities and even
on content that simply discusses certain sexual themes have been
upheld, is not relevant here -- the case didn't turn on this, and
would have come out the same way if it had involved cable radio, or
Internet radio, or CDs, or any other fully protected medium. (I think
the lower protection for offensive speech on broadcast radio is itself
unsound, but that's a separate matter.)
The defendant didn't raise the First Amendment here, and the court
therefore didn't discuss it. But it would be quite sensible, I think,
for the en banc court to interpret harassment law with an eye towards
minimizing the conflict with the First Amendment.
References
1. http://volokh.com/posts/1209758441.shtml
2. http://www.ca11.uscourts.gov/opinions/ops/200710270.pdf
3.
http://www.examiner.com/x-7812-DC-SCOTUS-Examiner~y2009m6d11-Suit-over-raunchy-radio-programs-to-be-reheard-in-Reeves-v-CH-Robinson-Worldwide
4. http://www.law.ucla.edu/volokh/harass
5. http://www.law.ucla.edu/volokh/harass/permissi.htm
6. http://www.law.ucla.edu/volokh/harass/substanc.htm
7. http://www.law.ucla.edu/volokh/harass/breadth.htm
8. http://www.volokh.com/posts/chain_1202930133.shtml
9. http://www.law.ucla.edu/volokh/harass/substanc.htm
10. http://www.law.ucla.edu/volokh/harass/cyberspa.htm#PUBACCOM
_______________________________________________
Volokh mailing list
[email protected]
http://lists.powerblogs.com/cgi-bin/mailman/listinfo/volokh
