The scope of hostile public accommodations environment law

[Volokh, Eugene]

        This is pretty interesting to me:  Here we've been talking for days
about a Massachusetts government agency's apparent view (judging from its
complaint and its public statements) that public accommodations law outlaws
certain racially offensive displays by bars.

        Several law professors on the list agree with the agency, and
believe that the law does and should outlaw such displays.

        Several law professors on the list believe that such displays are
analogous to "No Blacks Allowed" signs, which indeed are outlawed.

        Hostile work environment law quite clearly bars speech that creates
a hostile environment for plaintiff and a reasonable person based on race,
religion, etc., even when the speech isn't targeted at the plaintiff because
of his race, religion, etc.  The theory behind this is that the law bars
employment discrimination, and speech like this is a form of discrimination.
By analogy, it seems eminently reasonable to infer that public
accommodations discrimination law, which bars public accommodation
discrimination, likewise bars such speech in places of public accommodation.

        This analogy seems to be endorsed by quite a few cases.  See, e.g.,
Bond v. Michael's Family Restaurant, Wisc. Labor & Indus. Rev. Comm'n, Case
Nos. 9150755, 9151204 (Mar. 30, 1994) (borrowing directly from hostile work
environment law in a hostile public accommodations environment case); In re
Flaa v. Manor Country Club, Inc., Case No. PA-709, at 130-32 (Montgomery
County Hum. Rels. Comm'n Sept. 30, 1999) (same); In re Ross, 1995 WL 907568
(Chi. Com. Hum. Rel. Sept. 20) (same).  See also, applying the same logic as
to "hostile educational environment" cases, see, e.g., Kan. Att'y Gen. Op.
96-1, 1996 WL 46866 (arguing that campus speech codes were constitutionally
permissible, so long as they were written by analogy to "hostile work
environment" law); Letter from U.S. Dep't of Educ. Office for Civil Rights
to Santa Rosa Junior College, June 23, 1994, at 7 (arguing that Title VI
requires universities to set up speech codes, and saying that they are
constitutional because workplace harassment law is constitutional) and
"hostile housing environment" cases,  See, e.g., Honce v. Vigil, 1 F.3d
1085, 1090 (10th Cir. 1993); Szkoda v. Illinois Human Rights Comm'n, 1998 WL
887884 (App. Dec. 16); Secretary v. Gutleben, 1994 WL 441981 (H.U.D. ALJ)
(holding that racist statements by landlord violated hostile housing
environment harassment law, and concluding that because "the Act's
restriction on racially pejorative speech is similar to Title VII's
restriction on sexually harassing speech[, i]t may therefore be considered a
`secondary effect´ of the Act's prohibition of interference with rights
protected by the act[, and thus constitutional under] R.A.V. v. City of St.
Paul").

        Likewise, it's endorsed by quite a few statutes and government
enforcement agency publications.  See, e.g., Mich. Comp. Laws Ann. §
37.2103(i) (West Supp. 1995) (barring "communication of a sexual nature"
that creates "an intimidating, hostile, or offensive employment, public
accommodations, public services, housing, or educational environment" ); see
also Minn. Stat. Ann. § 363.01, subd. 41 (West 1991); Mont. Admin. R.
24.9.609(2)(c) (1999) (covering harassing speech based on race, religion,
and other attributes, as well as sex); N.D. Cent. Code § 14-02.4-01 (Supp.
1995); N.D. Cent. Code § 14-02.4-02 (1995); cf. South Dakota Dep't of
Commerce & Reg. Div'n of Human Rights, Sexual Harassment (no date) ("The
South Dakota Human Relations Act prohibits harassment on the basis of race,
sex, religion, . . . .  The areas of coverage are employment, housing,
public accommodations, . . . .  Some other examples of harassment include: .
. . b. name calling at work site which refer to a person's sex, race,
religion, or disabilty [sic] or c. racist or sexist statements displayed in
a public accommodation which affect a person's ability to use and enjoy
those accommodations"); Pennsylvania Human Rels. Comm'n publication (no
date) (asserting that Pennsylvania state discrimination law bans harassment
"in employment, housing, public accommodation and education" "on the basis
of your race, color, religion, national origin, ancestry, age (40 and
above), sex, disability, use of a guide animal or having a GED instead of a
high school diploma"); Iowa Civil Rights Comm'n, Sexual Harassment in the
Workplace: It's Against the Law ("The Laws That Prohibit Harassment . . . .
The 'Iowa Civil Rights Act of 1965' . . . does not expressly define or
prohibit sexual harassment, but such behavior is recognized by the courts as
a form of prohibited sex discrimination.  The state law . . . prohibit[s]
sex discrimination in the area of housing, public accommodations [and other
places including employment] . . . ."); New Jersey Dep't of Law & Pub.
Safety, Sex Discrimination: Your Rights ("Where is Sex Discrimination
[earlier defined to include hostile environment harassment] Against the Law?
Employment . . . Housing . . . Places of Public Accommodation"); New York
City Comm'n on Human Rights document at
http://www.ci.nyc.ny.us/nyclink/html/serdir/html/missions.html (asserting
that New York City human rights law bars harassment in "employment, housing,
and public accommodations" "on the basis of race, color, creed, age,
national origin, alienage or citizenship status, gender, sexual orientation,
disability, marital status . . . lawful occupation . . . and record of
conviction or arrest").

The logical inference from all this, I take it, is that just as hostile work
environment law ends up punishing and deterring a good deal of speech,
including posters, displays, conversations that might be overheard by people
who'll be offended, and so on, then by analogy hostile public accommodations
environment law might do the same.  Seems to be a pretty safe bet, given the
weight of the above evidence.

But Marty disagrees -- my evidence, he says, is just "hype," and in fact
public accommodations discrimination laws won't have this effect.  What's
the evidence for this alternative proposition?

First, he argues that public accommodation laws don't have a "disparate
impact" component, and therefore don't punish speech that's addressed to the
public at large but merely has a "disparate impact" on people of certain
groups.  But hostile environment law is NOT a branch of Title VII "disparate
impact" theory (a la Griggs v. Duke Power).  That's not how hostile
environment law has developed, in the workplace or in places of public
accommodation; that's not how it's litigated; that's not how the cases
generally describe the matter.  The whole disparate impact argument is
simply a red herring.

        Second, he points out that most of these cases have involved what I
call (somewhat imprecisely) "one-to-one speech aimed at the offended party,"
which I think is indeed potentially proscribable.  This is true; most have
indeed involved this.  Moreover, since there are relatively few public
accommodations discrimination cases generally, compared to workplace
discrimination cases -- perhaps because it hardly ever makes financial sense
to sue -- this means that there are in absolute terms few "one-to-many"
cases.  The clearest exception is Bond (which was based on an overheard
conversation, not on a one-to-one insult), as is Flaa, to some extent (note
that Flaa hasn't yet been posted to my site, so Marty may not have read it),
and as is the Boston bar case.

        But we KNOW that hostile work environment law is not limited to
one-to-one speech -- that is amply clear  from the hostile work environment
caselaw.  There is absolutely no reason to think that hostile public
accommodations environment law, which is built by direct analogy to hostile
work environment law, has a limitation that hostile work environment caselaw
doesn't include.  Certainly none of the cases hint at this.

        Marty calls me an "alarmist" who says that "the sky is falling."  I
suggest that Marty is making the mistake condemned by Justice Brennan in
NAACP v. Button -- though there is "an internal tension between proscription
and protection in the statute," he is "assum[ing] that, in its subsequent
enforcement, ambiguities will be resolved in favor of adequate protection of
First Amendment rights."  Instead of such an assumption, I rest on the
arguments given above, arguments that seem to me entirely supported by the
evidence, and by the history of hostile work environment law and the degree
to which it has spread.

        Nonetheless, I'm at least happy that Marty is willing to agree that
this bar owner is entitled, under the 1st Am, to have racist displays
(though I'm disappointed that he thinks this free speech right may be
forfeited simply because a factfinder concludes that the displays are
motivated by ill intentions).  As I mentioned, some lawprofs on this list
would not concede even that, another reason that I'm not willing to be quite
as sanguine as he is.
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