Hostile environments and the religious employee

[Eugene Volokh]

    I appreciate the caution and modesty in Steve's post, but I'm
afraid I have to disagree with the substance.

    Through harassment law, the government is restricting speech in
private workplaces.  I take it that Steve acknowledges this, but
considers this restriction "indirect"; but the directness in my view
doesn't at all matter.  When the government says to an employer "If
you don't suppress speech X by your employees, we'll punish you," the
government is restricting speech X.

    Likewise, it strikes me as entirely irrelevant that many
employers would willing restrict speech X.  Many newspaper publishers
prohibit their writers from using profanity in their columns, or
engaging in true but unfair or impolite personal attacks.  This tells
us nothing about whether the government may force publishers to
impose such prohibitions, or pressure them into imposing such
prohibitions.

    Finally, let's look at the concrete speech at issue here.  Steve
seems to suggest that employers should be free to speak religiously;
at the same time, he suggests that "speech . . which the speaker
knows will offend and which a reasonable person would know would
offend may be an acceptable or workable standard."  Thus, under his
standard, religious posters which a reasonable person would know
would offend -- or is it religious posters which would offend a
reasonable person? -- become punishable by the government.

    Likewise under the standard set forth by Profs. Beiner & DiPippa,
though that standard would not even require that the offense be
"reasonable."  Under their standard, as I understand it -- and please
do correct me if I'm mistaken -- the employer would be obligated to
take down any speech so long as some employee sincerely believes that
it would be sinful for him to have to observe or hear this speech.

    After the last 50 years of First Amendment case law, can either
of these really be an acceptable standard?

> Speech in the workplace is a thorny problem.  With the caveat that upon
> further discussion and reflection I am ready willing and able to change and
> withdraw my support for any statements made here, I will boldly and
> foolishly made some comments:
>
> 1.  Normal businesses are not states and so are not regulated by
> constitutional free speech protections.
>
> 2.  No anti-discrimination law *directly* proscribes free speech.
>
> 3.  Employers have an interest in creating and maintaining a productive
> work environment and so can have rules which are more restrictive than the
> law requires with respect to hostile work environment and harassment in the
> workplace.
>
> 4.  Employers can regulate conduct and speech of employees in the
> workplace, in general.  For example, an employer could probably lawfully
> (and certainly constitutionally) ban all religious speech at work on the
> work premises during working hours.
>
> 5.  Employers can speak about many things so long as those things do not
> create the hostile work environment or do not constitute harassment.  Thus
> employers can post the 10 commandments or "om mani padme hum" or "hari
> Krishna" or "bismillah Allah" or "honor gaia" without incurring liability.
> In such cases it is the employer creating the work environment the employer
> wants and thinks best.
>
> 6.  We ought not allow the unit veto, or the purely subjective approach to
> hostile environment or harassment claims based on speech.  Subjective may
> work well for other types of status-based discrimination, but when dealing
> with speech, it may not be proper.  But I don't think we should draw the
> line at specific intent, but I'm not sure of this.  Need to think it
> through some more.  But it seems that speech that is not intended to
> offend, but which the speaker knows will offend and which a reasonable
> person would know would offend may be an acceptable or workable standard.
> But then we also come to the mental state of the worker - highly sensitive
> antenna?  Or do we take a "jostling by the crowd" standard?  Or do we
> require here a reasonable person would be offended?  Or a reasonable person
> of that religious belief would be offended?  This standard, the measuring
> stick, I find to be a very thorny thicket indeed.
>
> 7.  But, what of co-employee action that an employer permits?  Let's say
> that an employer permits  employees to play Christian radio stations, or to
> post "Jesus saves" signs, and the like even though the employer knows that
> many employees are Jews, athiests, Muslims, etc.  It seems here that the
> same standard for the employer liability should apply as if the employer
> were speaking.  But, if the messages are causing disruption, the employer
> should be free to stop the radio and posting of signs etcetera as a matter
> of discretion, not as a matter of legal compulsion.  And the employer need
> not accommodate the employee's need to witness at work.  At some point a
> distinction between private acts and private displays for oneself alone and
> displays and actions which affect others becomes meaningful.
>
> 8.  I'll be interested in your article, Gene.
>
> 9.  The rules change when it is a governmental employer, don't they?  Seems
> to present a tougher set of issues to me.


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Eugene Volokh, UCLA Law School, (310) 206-3926  fax -7010
               405 Hilgard Ave., L.A., CA 90095