EMPLOYEE SPEECH RIGHTS (Private)

Employees in the private sector enjoy first amendment rights like any other citizens. But those constitutional rights run only against the government—against state action—and not against the private employer, who poses the chief threat to employees' freedom of speech at and about the workplace. So the speech of private sector employees implicates the First Amendment only in those rare instances when the government acts to suppress that speech.

The paucity of First Amendment issues in the private sector workplace has contributed to an impoverished conception of the significance of employee speech and of the workplace as a forum for expression. The workplace is often seen as simply a component of the market, a domain of purely instrumental relations. Yet workplace issues, and related issues of class and wealth, are central to individuals' lives and to public debate. The workplace is where people discuss these issues, as well as other social and political issues, current events, popular culture, and personal concerns. It is thus an important arena for deliberation among citizens and for the formation of personal ties that transcend family, neighborhood, and racial and ethnic boundaries. But there is little recognition of the unique importance of workplace speech in those relatively rare cases in which private sector employee speech is threatened by state action.

Until recently, government suppression of private employee speech was largely confined to the arena of labor law—the law governing unions and collective bargaining. First Amendment challenges to restrictions on labor speech have a mixed record. Although peaceful labor picketing is a recognized form of protected expression, the Supreme Court has upheld numerous laws that prohibit picketing based on its purpose or effect. The Court has treated the constitutional implications of these prohibitions rather casually, failing to explain, for example, why labor picketing is less protected than civil rights picketing. On the other hand, the Court has cited First Amendment concerns as the basis for narrowly construing a National Labor Relations Act provision to avoid banning consumer handbilling.

The law of discriminatory workplace harassment has recently called attention to the constitutional speech rights of private sector employees. Title VII of the civil rights act of 1964 prohibits employers from discriminating against employees, and from subjecting them to a "hostile work environment," on the basis of sex, race, ethnicity, and religion. Other laws, state and federal, extend the hostile environment theory to harassment on the basis of age, disability, and veteran status. Employers can be held liable for a hostile environment based partly or entirely on the speech of subordinate employees. As a result, harassment doctrine induces employers to prohibit employee speech that could contribute to harassment liability, whether or not it constitutes harassment. Because Title VII operates indirectly, by inducing private actors to censor speech, the constitutional issue is obscured and seldom litigated. But it is serious nonetheless. Citing fear of liability, some employers have sought to purge the workplace of comments, jokes, or cartoons that might offend some employee on the basis of race, sex, religion, ethnicity, or other protected status.

Employers who read harassment law as a reason to ban any "suggestive" or conceivably offensive speech may be overreacting to the law; but in the absence of clear limitations on the sort of expression that may count toward liability, the reaction is foreseeable. The vague contours of hostile environment law are thus responsible for a serious constriction of the freedom of working people to communicate at work. Some pruning is in order.

The Court suggested a drastic solution in R. a. v. V. city of st. paul (1992). While condemning most attempts to suppress racist and sexist speech, the majority suggested in dicta that Title VII may be defensible: It is "directed not against speech but against conduct"—that is, employment discrimination—and it only "incidentally" restricts "a particular content-based subcategory of a proscribable class of speech," such as "sexually derogatory 'fighting words.' " This defense of harassment law is strikingly narrow: Hostile environment law would be drastically pruned if only fighting words, obscenity, and other traditionally unprotected speech could be actionable. This standard takes too little account of the peculiar vulnerability of the workplace audience. It would render discrimination law powerless to prevent hostile coworkers from using obnoxious and bigoted speech to make the workplace intolerable for minority and female coworkers.

The solution to this dilemma may lie in a workplace-specific standard focusing on the time, place, and manner of alleged harassing speech. For example, speech that is personally directed at an unwilling listener, or that is not reasonably avoidable by unwilling listeners, exploits the workplace setting and the economic constraints on employees, and deserves lesser constitutional protection. Employers and employees alike need a definitive resolution of the problem of verbal workplace harassment, a resolution that recognizes both the free speech interests of employees and the special vulnerability of the workplace audience.

Cynthia L. Estlund
(2000)

Bibliography

Becker, Mary 1996 How Free Is Speech at Work? UC Davis Law Review 29:815–873.

Estlund, Cynthia L. 1997 Freedom of Expression in the Workplace and the Problem of Discriminatory Harassment. Texas Law Review 75:687–777.

Greenawalt, Kent 1995 Fighting Words: Individuals, Communities, and Liberties of Speech. Princeton, N.J.: Princeton University Press.

Volokh, Eugene 1992 Freedom of Speech and Workplace Harassment. UCLA Law Review 39:1791–1872.