Speech Code Invalidated in Schools, Mandated in Workplaces

by Hans Bader on August 5, 2008

The Third Circuit Court of Appeals has invalidated Temple University’s sexual harassment policy, which was challenged by a veteran who wished to defend in class the military’s restrictions on women in combat.  Law Professor Eugene Volokh agrees with the decision in DeJohn v. Temple University, which noted that “there there is no ‘harassment exception’ to the First Amendment’s Free Speech Clause.”

The decision is correct, and is consistent both with Supreme Court rulings on harassment in schools, and Third Circuit rulings on free speech in schools.  

But there is nonetheless an ironic aspect to the decision: the Third Circuit itself has told private employers to ban racist and sexist speech from the workplace, effectively mandating the very speech codes in the private workplace that it forbids at public universities.  In 1990, the Third Circuit declared that “While Title VII does not require that an employer fire all ‘Archie Bunkers’ in its employ, the law does require that an employer take prompt action to prevent such bigots from expressing their opinion in a way that abuses or offends their co-workers. By informing people that the expression of racist or sexist attitudes in public is unacceptable, people may eventually learn that such views are undesirable in private, as well. Thus, Title VII may advance the goal of eliminating prejudices and biases in our society.”  There’s a simple word for such a policy: a speech code.

As I have explained elsewhere, when a court or government agency tells a private employer to restrict employee speech to avoid liability, that pressure implicates the First Amendment, even though a private employer’s voluntary restrictions on speech would not.  The EEOC has argued to the contrary, but its position is simply inconsistent with cases such as Truax v. Raich, New York Times v. Sullivan, and Korb v. Lehman.

The EEOC, by the way, insists that it has the power to ban offensive words, such as the N-word, in the workplace, even when minorities use the word among themselves.  It makes this claim even though federal appeals courts have held that use of the “N” word is sometimes protected speech (see, e.g., Hardy v. Jefferson Community College, 260 F.3d 671 (6th Cir. 2001)), and even though the Supreme Court made clear in Meritor Savings Bank v. Vinson (1986) that the “mere utterance of an ethnic or racial epithet which engenders offensive feelings in an employee” is not in and of itself harassment. 

In seeking a blanket ban on the N Word, the EEOC has ignored the wisdom of Supreme Court Justice Oliver Wendell Holmes, who noted in Towne v. Eisner (1918) that “a word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used.” 

Perhaps employers should sue the EEOC.  In White v. Lee, 227 F.3d 1214 (9th Cir. 2000), citizens investigated for “discrimination” for speaking out against a housing project were allowed by a court to turn the tables on civil-rights officials and sue them individually for First Amendment violations and emotional distress and punitive damages.

Court rulings on sexual harassment are full of logical inconsistencies and oddities.

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