Hostile work/educational environment law

[Chambers Jr, Henry L.]

Eugene wrote:
>>>> Hmm -- if Hank's claim is that there are other effective ways for
employers, universities, and such to avoid  harassment liability than to
suppress the actionable speech, I think that would be news to employment
experts, government agencies, and pretty much everyone else who deals with
these laws.  All the statements I've seen on this subject suggest that to
avoid liability, employers should suppress the offensive speech, and not
take unspecified other actions.  And it makes sense:  If speech can lead to
liability, the most logical way of preventing liability is to punish the
speech -- and the liability-imposing law is properly held responsible for
the speech suppression that it leads to.  Am I missing something here?>>>>>>

Wow, given my work in employment discrimination, I would thought that I
qualified as someone "who deals with these laws," but I digress.

More to the point, speech helps create a hostile work environment, which
usually encompasses conduct as well.  I continue to beat on this point
because many who attack hostile work environment law continue to ignore the
point that hostile work environment is not just a name that we give speech.
My point was simple, and I would not think controversial.   Even if
suppression of speech is one way (or even the easiest and least costly way)
for the employer to attempt to avoid the liability that may flow from
allowing its workplace to become a hostile work environment, i.e, a place
where employees are intimidated or have a harder time doing their job
because of their gender, etc., it is not the only way.

Eugene also wrote:

>>>>As to point 2 below, note again the slippery slope risk:  Here the
exceptions for knowingly false statements of fact and for threats are being
used as rationales to suppress speech that is really quite remote from these
exceptions.  If a new exception is created for speech that creates a
"hostile work environment" or a "hostile educational environment," what
other exceptions will be urged by analogy to this new one?>>>>

Of course, the slippery slope argument is no answer to my point that, in
some cases, speech may be regulated directly because of its effects.  My
bigger point was not that we should regulate workplace speech, but that if
we can regulate some speech directly, merely regulating its effects would be
of even less concern than regulating it directly.

As for Eugene's hypothetical (see below), I ask, presuming that a hostile
environment (term of art) has been proven, why wouldn't the remedies be
constitutional?  I am willing to assume the constitutionality of duly passed
laws until they are proven to be unconstitutional.

-Hank

Henry L. Chambers, Jr.
Associate Professor of Law
University of Missouri-Columbia
chambersh at missouri.edu <mailto:chambersh at missouri.edu>
(573) 882-7562



-----Original Message-----
From: Volokh, Eugene [mailto:VOLOKH at MAIL.LAW.UCLA.EDU]
Sent: Tuesday, March 27, 2001 4:02 PM
To: CONLAWPROF at listserv.ucla.edu
Subject: Hostile work/educational environment law
 >snip<

But these are abstract points; let me ask Hank about a concrete hypo:

        At a private university, people often speak very critically about
religion generally, and about fundamentalist Christianity in particular.
Christian students often see signs condemning religion in harsh terms,
overhear conversations about how "those Jesus freaks are trying to oppress
us by ramming their stupid religion down our throats," and see flyers for
events with anti-religious themes ("how Christianity is responsible for
oppression of women, gays, and people of color").  Faculty members teaching
classes from biology to history to ethics also often make in-class
statements about how Christianity and especially fundamentalist Christianity
is wrong and evil, and how about religious people generally are deluded,
narrow-minded, or both.

        When Christian students complain to the administration, asking the
administration to speak out against such offensive statements, the
administration says that it doesn't want to censor speech by students or by
the faculty; and beyond that, it agrees that religion generally,
Christianity in particular, and fundamentalist Christianity most of all are
irrational and harmful.  The students sue the school under state hostile
educational environment law, and win a damages award and get an injunction
ordering the school to stop maintaining a religiously hostile educational
environment.  Likewise, some offended staff sue the school under state and
federal hostile work environment law, and likewise get a damages award and
an injunction.

        Is this constitutional or not, under the theory that Hank or others
have urged?

        Eugene