New York Civil Liberties Union executive director on speech o utside work and hostile work environme

[Volokh, Eugene]

        Let's say that Emily's approach -- as best I can figure it out -- is
adopted.  What would people say about the following letter?


Dear Mr. Employer:

        You asked me my legal advice about what you should do with regard to
that employee who wrote the magazine article in which he said that he hates
Jews, and that Hitler was right.  You told me that you would prefer not to
discipline the employee, but that you will do what it takes to prevent legal
liability.

        The fact is that the only safe course of action is for you to fire
this person, and to never hire anyone who publishes such articles, or any
other articles that coworkers find so offensive to their racial group,
religious group, ethnicity, or gender that the very presence of the author
in the workplace would create a hostile, abusive, or offensive work
environment for them.  I'm not certain that a lawsuit by such an offended
employee would succeed:  The terms "severe or pervasive" and "hostile,
abusive, or offensive" are too vague for us to know for sure.  But there's
certainly a substantial chance that it will succeed, and that it will cost
you hundreds of thousands of dollars.

        Furthermore, while you might have a First Amendment defense against
such court-ordered liability based on the viewpoint expressed by the
employee's speech, current law merely says that the First Amendment is only
part of "a framework of complex value-exploration" in this context.
Frankly, I have no clear idea what this standard means, but it seems to
suggest that sometimes the First Amendment defense will succeed and
sometimes will fail.  (The standard does remind me of Justice Frankfurter's
admonition in Dennis v. United States that "the demands of free speech in a
democratic society as well as the interest in national security are better
served by candid and informed weighing of the competing interests, within
the confines of the judicial process, than by announcing dogmas too
inflexible for the non-Euclidian problems to be solved," but it's never been
clear to me or to others what Justice Frankfurter's proposed standard meant,
either.)  Given the possibility that your First Amendment defense will fail,
I again caution you about the risk of six- or seven-digit liability if you
continue employing people who express such views in public.

        I realize that my advice suggests that people who express these
views will now be legally unemployable, or rather employable only at
tremendous legal risk -- a legally mandated blacklist.  And I realize that,
especially given your experience growing up in the 1950s, you would, all
things being equal, prefer to tolerate the offense that such speech would
cause, because of your respect for free speech.

        Nonetheless, recent advances in free speech jurisprudence suggest
that the government may indeed impose legal pressure on employers to thus
blacklist workers who say things, even outside the workplace, which can
sufficiently offend coworkers based on their race, religion, sex, or
ethnicity.  Ignoring this, and continuing to employ people who write
articles such as the one at issue here, puts you in grave peril.

                                        Sincerely Yours,



                                        Leonard Lawyer



> -----Original Message-----
> From: Emily Hartigan [SMTP:HARTIGANE at LAW.STMARYTX.EDU]
> Sent: Tuesday, January 11, 2000 12:18 PM
> To:   CONLAWPROF at listserv.ucla.edu
> Subject:      New York Civil Liberties Union executive director on speech
> outside work and hostile work environme
>
> Eugene writes this:
>
> "        But surely at least in such cases, the 1st Am *must* trump
> workplace harassment law.  Can it possibly be constitutional for
> harassment law to pressure employers to punish their employees for
> saying offensive things in *magazine interviews*?  Surely the 1st Am
> would require any such outside-work one-to-many statements to be
> excluded from the plaintiff's case in any harassment action, no?"
>
> In the magazine, the hypothetical worker says this: "I hate Jews, and
> anything I can do to them, I will, because Hitler was 100% correct."
> Does this make the workplace hostile for Jews sufficiently to put the
> First Amendment at least within a framework of complex
> value-exploration?
>
>
> Emily Albrink Fowler Hartigan
> St. Mary's U. School of Law
> San Antonio, Texas 78228
> hartigane at law.stmarytx.edu
> Fax: 210-436-3717
> Phone: 210-431-2273
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