20 This would be even more true of bigoted or insensitive remarks about minority or female political candidates. or privileges of employment" -- which would include harassing speech -- based on arrest record and conviction record); N. Correction Law § 752 (generally banning discrimination based on having "previously been convicted of one or more criminal offenses"); New York City Comm'n on Human Rights document (asserting that New York City human rights law bars harassment based on, among other things, "record of conviction or arrest"); City of Boston Code §§ 12-9.2, 12-9.3 (barring discrimination in "terms, conditions, or privileges of employment" based on "ex-offender status," defined as an arrest record, a record of conviction for petty misdemeanors, or a record of conviction for any misdemeanor when the sentence had elapsed over 5 years earlier); State of Wisconsin Dep't of Workforce Development, pamhplet #ERD-7334-P (including "arrest or conviction record" in prohibited bases of harassment, alongside race, sex, and so on); Chippewa Valley Technical College, 1996-1997 Catalog Compliance Statement Cornell University (same); The Office of Equal Opportunity's Fall 1996 Semi-Annual Sexual Harassment Report n.3 (treating status as "ex-offender" as equivalent to race, sex, and so on); Nicolet Area Technical College, Affirmative Action policy 001 (same); Northwest Technical College [Minnesota], Affirmative Action -- NTC Policy 1050 (same). City of Boston Code §§ 12-9.2, 12-9.3 (barring discrimination in "terms, conditions, or privileges of employment" -- which includes harassing speech -- based on "prior psychiatric treatment"). 21 Many reasonable people might view strident denunciations of Catholicism, whether political or religious, as creating a hostile environment for devout Catholics, 22 or criticisms of feminism as creating a hostile environment for women. §§ 111.31, 111.32 (barring discrimination in "terms, conditions, .
25 And if some complainants make these claims, some fact-finders may well agree: Religious Speech: If some complainants make these claims, some fact-finders may well agree. or privileges of employment" based on, among other things, "political ideology"); Madison, Wisc., Municipal Code §§ 3.23(8)(a); Broward County Code § 161/2-3(15), 161/2-21(1).
A state court has in fact found that it was religious harassment for an employer to put religious articles in its employee newsletter and Christian-themed verses on its paychecks. or privileges of employment" based on, among other things, "political orientation"); Seattle, Wash., Code § 14.004.0040 (1986) (barring discrimination in "terms, conditions, .
26 The EEOC likewise found that a claim that an employer "permitted the daily broadcast of prayers over the public address system" over the span of a year was "sufficient to allege the existence of a hostile working environment predicated on religious discrimination." 27 A recent article by two employment lawyers gives "repeated, unwanted `preaching´ episodes [by a fundamentalist Christian employee] that offend coworkers and adversely affect their working conditions" as a "bright-line example" of actionable harassment; an employer in such a situation would be "well advised to take swift remedial action." 28 If polite religious proselytizing can be harassment, then of course harsher criticism of religion would be, too. or privileges of employment" -- including harassing speech -- based on "political affiliation"); Lansing, Mich. 296.03(2) (barring discrimination in "terms, conditions, .
According to the Federal Communications Commission (FCC), a hostile work environment is when harassment--including unwelcome comments or conduct based on sex, race, or other legally protected characteristics--unreasonably interferes with an employee's work performance or creates an intimidating, hostile, or offensive work environment.
Originally published in the Georgetown Law Journal; reproduced with modifications and additions, and some added and omitted footnotes -- footnote numbers track the original. Political, Artistic, Religious, and Socially Themed Speech May Constitute "Harassment" A. 18 "David Duke for President" posters, after all, might well be quite offensive to many reasonable people based on their race, religion, or national origin, and may create a hostile environment; 19 likewise for confederate insignia. Chicago National League Ball Club, Chicago Commission on Human Relations, No. 4, 1993) (ticket scalper who was spoken to rudely because of his occupation stated a claim under Chicago antidiscrimination law, which bars discrimination and harassment based on, among other things, "source of income"); City of Boston Code §§ 12-9.2, 12-9.3 (barring discrimination in "terms, conditions, or privileges of employment" -- a phrase that has been interpreted to include harassing speech -- based on "source of income").
It does not require that the speech be profanity or pornography, which some have considered "low value." 17 Under the definition, it is eminently possible for political, religious, or social commentary, or "legitimate" art, to be punished. It does not require that the speech consist of obscenity or fighting words or threats or other constitutionally unprotected statements. The first place to look in determining the scope of harassment law, of course, is the legal definition of "harassment." Speech can be punished as workplace harassment if it's based on race, religion, sex, national origin, 1 age, disability (including obesity), 2 military membership or veteran status, 3 or, in some jurisdictions, sexual orientation, marital status, 4 transsexualism or cross-dressing, 5 political affiliation, 6 criminal record, 7 prior psychiatric treatment, 8 occupation, 9 citizenship status, 10 personal appearance, 11 "matriculation," 12 tobacco use outside work, 13 Appalachian origin, 14 receipt of public assistance, 15 or dishonorable discharge from the military 16 Note what the definition does not require. 775 § 5/2-102 (1997) (barring discrimination in "terms, conditions or privileges of employment" -- a phrase that has been interpreted to include harassing speech -- based on "citizenship status"); N. The Inevitable Need to Suppress Isolated Statements B. It goes far beyond slurs, hardcore pornography, repeated vulgar sexual propositions, and the like, and can suppress, among other things, I aim to prove this claim below. "It is Necessary to Prohibit the Individual Actions" Conclusion: The Speech that Harassment Law Restricts Workplace harassment law is a speech restriction of remarkable breadth. 1996) (same as to "alienage or citizenship status"); New York City Comm'n on Human Rights document (asserting that New York City human rights law bars harassment based on, among other things, "alienage or citizenship status"); D. The Effect of Cases That Rely Even in Part on Speech F.