Certain Illusions about Speech: Why the Free-Speech Critique of Hostile Work Environment Harassment Is Wrong
McGowan, Miranda Oshige, Constitutional Commentary
Can antidiscrimination laws punish hostile work environment harassment without infringing freedom of speech and expression? Consider the following examples of nude pictures displayed in different workplaces.
Joan is the only woman welder at a shipyard. Her coworkers have posted sexually explicit centerfolds, calendars, and cartoon depictions of nude women from Playboy, Hustler, and similar magazines throughout common areas--the break room, the cafeteria, the halls, and the equipment room. (1) Some of the posters could be construed as political statements about the proper role of women: In one of the photos, a woman wears just an apron; in another, a woman wears a skimpy nurse's outfit. The pictures unnerve Joan, and she asks her supervisors to have the pictures removed. They tell her she's nuts if she thinks men in a shipyard will take down their girlie pictures. Get used to it, they tell her. She sues, alleging that the pictures have created a sexually hostile work environment.
The Museum of Modern Art is running an exhibition on "Playboy: Transforming the Body in American Society," which features enlarged versions of Playboy centerfolds to document changes in American visions of female beauty. A woman security guard objects to being assigned to the gallery in which this exhibition is being held. MoMA refuses to reassign her, and she sues, alleging that the pictures have created a hostile work environment.
Librarians have sued the Minneapolis Public Library for failing to correct a hostile work environment. The librarians claim that male patrons have been using the library's Internet kiosks to surf pornography sites. The librarians can see the computer screens from the reference desk. At least once a day, they see raunchy pictures of various sex acts (and those are the tame ones). Often, the patrons use the library's color printers to print these pictures, but then forget to retrieve them. When the librarians clean out old print jobs, they see these images. The librarians must also enforce time limits on Internet use; sometimes patrons will react aggressively when the librarians ask them to relinquish a computer. One patron yelled at a librarian, and another threw a chair across the room after being asked to sign off. The librarians have complained to the directors of the library. The library directors have been unwilling to install Internet filters, claiming that the First Amendment prevents them from doing so. Disgusted, the librarians have filed a complaint with the EEOC.
In each of these examples, the meaning of the expression changes in each of the three workplaces--though the surface content of the depictions is the same. These examples suggest that our reaction to whether expression should properly form the basis of a harassment claim has less to do with what is said or displayed than with the context in which the words are uttered or the images are displayed. I advance that thesis here.
Part I argues that the First Amendment status of expression in the workplace is determined by context, not by bright-line rules. Workplaces have varying missions, and a workplace's mission affects how workers encounter expression. The social benefits of expression and the social costs of regulating it are also affected by a workplace's mission.
Some workplaces are organized primarily to make money by designing, making, or selling a product or providing some service. Any expressive aspects of the product or service (the Volkswagen Bug's evocation of nostalgia) are directed towards something other than thought, deliberation, or debate among consumers of the product or service. A few examples would be food, clothing, or car retailers, manufacturers, pharmaceutical companies, construction companies, and accounting firms.
Other workplaces have a communicative or expressive mission. They are organized around the purpose of communicating an idea or message, sparking conversation, argument, or thought among patrons, or providing a place for patrons to engage in conversation. …