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The concept that the First Amendment protects private-sector employees who make political and social statements unpopular with their employers has been repeatedly discussed in the media in the last few years. Fueled by debate over Colin Kaepernick’s kneeling, James Damore’s termination from Google and his subsequent lawsuit, several terminations of the Charlottesville participants, and other similar examples, numerous labor and employment law attorneys have been quoted in the media as repeating the venerable statement that the First Amendment generally only acts as a restraint on government action. This begs the question, however, of whether the government indirectly and impermissibly regulates speech content when it imposes liability on private employers who permit disfavored speech to occur in the workplace? Put another way, when only verbal expression is at issue, do statutes such as Title VII of the Civil Rights Act of 1964 (Title VII) and New Jersey’s Law Against Discrimination (NJLAD) impose content-based restrictions on speech, and do they do so in an unconstitutional manner?

A Hostile Environment Claim Based Solely Upon Verbal Abuse

Both Title VII and the NJ LAD make discrimination in employment unlawful, but only do so based on certain constitutionally protected suspect classes, such as race, color, religion, sex, and national origin. Under a hostile environment theory, verbal abuse that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment constitutes discrimination and can result in liability for a private employer. Importantly, while quid pro quo harassment has an extortion component that would almost always place it outside of the protections of the First Amendment, hostile work environment claims can result in liability for a private employer based only on the content of an individual employee’s speech. In order to create liability, however, the employee’s speech or verbal abuse must relate to one of Title VII’s or the NJLAD’s protected categories, such as sex, religion, and race. Verbal abuse that is not based on a protected category is not protected by these statutes and does not result in potential liability for a private employer. This is content-based regulation of private speech by the government.

Although not a harassment case, the Supreme Court confronted the issue of the selective content-based regulation of private speech in R.A.V. v. City of St. Paul,¹ and found such restrictions to be unconstitutional. The petitioners in that case were several teenagers who had burned a cross inside the fenced yard of a black family. The teenagers were charged under St. Paul’s bias-motivated crime ordinance, which prohibited the display of a symbol that “arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender.”² The Supreme Court found the ordinance to be unconstitutional because it prohibited protected speech solely based on the content of the speech. Specifically, the Supreme Court held that by not proscribing so called “fighting words” based on other topics such as political affiliation, union membership, and sexual orientation, the ordinance was “facially unconstitutional in that it prohibits otherwise permitted speech solely on the basis of the subjects the speech addresses.”³ The late Justice Antonin Scalia noted “[t]he point of the First Amendment is that majority preferences must be expressed in some fashion other than silencing speech on the basis of its content.” ⁴

The question then becomes: Is Title VII’s and the NJLAD’s hostile environment theory of liability equally unconstitutional when applied to verbal abuse cases because it also prohibits otherwise permitted speech based on the subjects that the speech addresses? Specifically, to the extent that a plaintiff must show that the verbal abuse was because of their sex, race, national origin, etc., does a hostile work environment claim impermissibly and unconstitutionally regulate speech based upon its content? If not, how have courts distinguished the imposition of such liability under Title VII and the NJLAD from the speech impermissibly regulated by the ordinance at issue in R.A.V. v. City of St. Paul? As stated by the Fifth Circuit in DeAngelis v. El Paso Municipal Police Officers Association⁵:

     Where pure expression is involved, Title VII steers into the territory of the First Amendment. It is of no use to deny or minimize this problem because, when Title VII is applied to sexual harassment claims founded solely on verbal insults, pictorial or literary matter, the statute imposes content-based, viewpoint-discriminatory restrictions on speech … whether such applications of Title VII are necessarily unconstitutional has not yet been fully explored.

Regulation of Speech in the Workplace Found Constitutional Under a Number of Theories

The short answer to the question posed above is that the courts have readily found that the workplace is different, and that the regulation of content-based verbal abuse in the workplace is constitutional. They have done so on a multitude of grounds. These grounds include: 1) the employer does not seek to express itself through the speech of its employees; 2) the speech in question amounts to discriminatory conduct, not just speech; 3) regulation of discriminatory speech in the workplace is simply a time, place, and manner regulation of speech; 4) workers are a captive audience; 5) Title VII is a narrowly drawn regulation serving a compelling governmental interest; and 6) analogizing to public employee speech cases, a court may, without violating the First Amendment, require that a private employer curtail the free expression in the workplace of some employees in order to remedy the demonstrated harm inflicted on other employees.⁶

The two most prevalent reasons for finding the hostile environment theory of liability to be constitutionally permissible is that these statutes regulate conduct and not speech, and that the workplace is different because the employees therein are essentially a captive audience. For example, in Robinson v. Jacksonville Shipyards, Inc.,⁷ Lois Robinson was a welder employed at the Jacksonville Shipyards from 1977 to 1988. She was one of a small number of women working there as skilled craftworkers. Robinson brought suit for sexual harassment after years of battling to get explicit sexual pictures of women taken down from the walls of offices and common areas, and to have workers reprimanded for lewd or demeaning remarks. Most of the evidence considered by the court, however, was of a general nature of raunchy pictures and remarks rather than of an intention to target Robinson specifically because she was female, although there was some conduct directed at her as an individual.

Following a decision in favor of Robinson, the defendant brought a constitutional challenge, specifically arguing that the First Amendment prevented the court from ordering injunctive relief in that case. The court rejected this challenge for a number of reasons, including:

     [T]he pictures and verbal harassment are not protected speech because they act as discriminatory conduct in the form of a hostile work environment…In this respect, the speech at issue is indistinguishable from the speech that comprises a crime, such as threats of violence or blackmail, of which there can be no doubt of the authority of a state to punish.⁸

Importantly, other cases have held that verbal abuse in hostile environment cases is primarily conduct, and, therefore, Title VII’s [and so ostensibly the NJLAD’s] statutory intent is to regulate conduct, even though it secondarily regulates private speech in some cases.⁹ For example, in Jenson v. Eveleth Taconite Co.¹⁰ the district court explained, “In this way, Title VII may legitimately proscribe conduct, including undirected expressions of gender intolerance, which create an offensive working environment. That expression is ‘swept up’ in this proscription does not violate First Amendment principles.”

Similarly, in Aguilar v. Avis Rent A Car Sys., Inc.,¹¹ 17 Hispanic individuals alleged the company and a particular manager routinely used racial epithets in referring to them. The California Court of Appeal considered a First Amendment challenge to and upheld an injunction against the use of racial epithets in the workplace. The court stated:

     Civil wrongs also may consist solely of spoken words, such as slander and intentional infliction of emotional distress. A statute that is otherwise valid, and is not aimed at protected expression, does not conflict with the First Amendment simply because the statute can be violated by the use of spoken words or other expressive activity.¹²

The district court in Robinson also found that the female employees subject to the vulgar atmosphere were a captive audience, stating:

     [F]emale workers at JSI are a captive audience in relation to the speech that comprises the hostile work environment…[t]he free speech guarantee admits great latitude in protecting captive audiences from offensive speech.¹³

Overall, courts have generally adopted one of these various theories to uphold the regulation of speech in the workplace as constitutional.

Outside the Workplace, Courts May Find Regulation of Private Speech Via a Hostile Environment Theory of Liability Unconstitutional

Outside of the employment setting, however, challenges asserting that the content-based regulation of private speech violates the free speech guarantees of the First Amendment have fared better. For example, in Saxe v. State College Area Sch. Dist., ¹⁴ students challenged the constitutionality of the school district’s anti-harassment policy, which provided that harassment includes any unwelcome verbal, written, or physical conduct that offends, denigrates, or belittles an individual on various grounds, including, inter alia, one’s sexual orientation. The students asserted that they believed homosexuality was a sin and feared that if they spoke out, they would be punished under the anti-harassment policy. The Third Circuit struck down the anti-harassment policy as overbroad because it prohibited a substantial amount of non-vulgar student speech, and the restrictions were not necessary to prevent substantial disruption. In fact, students and faculty have repeatedly brought successful First Amendment challenges to hostile environment harassment rules in the context of campus speech codes.¹⁵

The take away is that First Amendment free speech challenges to workplace discrimination laws based on an argument that they impermissibly regulate private speech are not likely to be successful. Nonetheless, the underlying principle that the government cannot indirectly regulate private speech by the imposition of hostile environment liability and/or overly broad harassment policies may have application in contexts outside of the workplace.

Trevor Lyons is a partner at Walsh Pizzi O’Reilly Falanga LLP. He is a member of the firm’s labor and employment group, and he represents management in virtually all areasof labor and employment law. Kristin Spallanzani is an associate in the labor and employment group at Walsh Pizzi O’Reilly Falanga LLP.

Endnotes

1. 505 U.S. 377 (1992).
2. Id. at 379.
3. Id. at 381.
4. Justice Scalia actually cited Title VII as permissible legislation in R.A.V. v. City of St. Paul because the intent of the statute was not to bar expressive content but rather only to bar particular conduct in the workplace. He stated “[w]here the government does not target conduct on the basis of its expressive content, acts are not shielded from regulation merely because they express a discriminatory idea or philosophy.” R.A.V., 505 U.S. at 390.
5. 51 F.3d 591, 596-597 (5th Cir. 1995).
6. Baty v. Willamette Indus., 172 F.3d 1232, 1246 (10th Cir. 1999); Robinson v. Jacksonville Shipyards, Inc., 760 F. Supp. 1486 (M.D. Fla. 1991).
7. 760 F. Supp. 1486, 1535 (M.D. Fla. 1991).
8. Id.
9. R.A.V., 505 U.S. at 389.
10. 824 F. Supp. 847, 884 n.89 (D. Minn. 1993).
11. 21 Cal. 4th 121, 131, 87 Cal. Rptr. 2d 132, 980 P.2d 846 (1999).
12. Id.
13. Robinson, 760 F. Supp. at 1535-36.
14. 240 F.3d 200, 209 (3d Cir. 2001).
15. Cohen v. San Bernardino Valley College, 92 F.3d 968 (9th Cir. 1996) (sexual harassment policy too vague as applied to professor); Dambrot v. Central Michigan Univ., 55 F.3d 1177 (6th Cir. 1995) (voiding ban on speech that has “negative [racial] connotations” and creates hostile learning or work environment); Silva v. Univ. of N.H., 888 F. Supp. 293 (D. N.H. 1994) (sexual harassment policy too broad as applied to professor); UWM Post, Inc. v. Board of Regents of Univ. of Wisconsin, 774 F. Supp. 1163 (E.D. Wis. 1991) (voiding race/sex harassment code that restricted only speech that deliberately created a hostile environment); Doe v. Univ. of Michigan, 721 F. Supp. 852 (E.D. Mich. 1989) (voiding race and sex harassment policies after they were applied to offensive viewpoints, but hinting that speech in non-academic workplaces can be restricted); see also Iota Xi Chapter v. George Mason Univ., 993 F.2d 386 (4th Cir. 1993); Pyle v. S. Hadley Sch. Comm., 861 F. Supp. 157 (D. Mass. 1994).