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ENDA vs. Free Speech

Earlier, I discussed ENDA, a bill passed by the House of Representatives that would ban most employers from engaging in sexual orientation discrimination. While well-intended, it could lead to very costly lawsuits against employers for things their employees say, even if the employer itself has no discriminatory bias. The bill would have little impact on most firms' hiring decisions, since companies typically do not hire based on sexual orientation (although the military and churches, which are exempt from ENDA, sometimes do). It would have a much larger impact on employees and workplace speech, however, since the bill regulates not just hiring and firing, but also "terms, conditions, or privileges of employment." In Meritor Savings Bank v. Vinson (1986), the Supreme Court interpreted the same vague language in another statute, Title VII of the Civil Rights Act, as requiring employers to prohibit employee speech or conduct that creates a "hostile or offensive work environment" for women, blacks, or religious minorities. The employer becomes liable for damages and attorneys fees if a court decides that it was negligent in failing to detect, prevent, or punish such speech or conduct. ENDA could thus lead to employers being sued for "sexual orientation harassment" over employee speech, even speech they disagreed with. Some supporters of ENDA hope to use it to squelch viewpoints that offend them. For example, a detractor of the New York Post, who dislikes its coverage of gay celebrities and public figures, hopes that the Post's gay employees will sue the newspaper if ENDA passes, under the theory that its content creates a hostile work environment for gay employees. In Seattle, a city human rights commission official suggested that complainant John Dill might have had a valid sexual-orientation harassment claim based on allegations that a co-worker listened to conservative talk radio shows and posted a letter from a Congresswoman skeptical of repealing the military's ban on gays. How the courts will respond to such claims is unclear. Some federal appeals courts have rejected harassment claims based on "second-hand" harassment (overheard comments not aimed at the complainant), concluding it does not involve severe enough conduct to create a "hostile work environment," in cases such as Gleason v. Mesirow Financial, Scusa v. Nestle, and Duncan v. General Motors. Moreover, judges have usually, but not always, rejected harassment claims based on job-related speech on First Amendment grounds. In Lyle v. Warner Brothers (2006), the California Supreme Court rejected a female writers' assistant's sexual harassment lawsuit against a company based on the offensive jokes its sitcom writers shared while producing episodes of the sitcom "Friends." Justice Chin relied on the First Amendment in dismissing the claim, while his the other justices relied on statutory grounds: the fact that plaintiff's co-workers did not aim the offensive jokes at her. (Disclosure: I co-wrote an amicus brief in that case that the Individual Rights Foundation filed on behalf of Warner Brothers). Similarly, in DeRochement v. D & M Printing Co. (discussed here and here), a court dismissed a sexual harassment claim against a print shop over a printing order that offended an employee, citing the First Amendment. And in Stanley v. Lawson (1997), a court rejected a woman's attempt to base a sexual harassment claim in part on the magazines her employer sold, relying on the First Amendment. By contrast, an arbitrator in the EZ Communications case dismissed a First Amendment defense to a sexual harassment claim, even though it was based on on-air radio commentary. But First Amendment defenses over non-job-related speech are usually rejected, and some court decisions, such as Stair v. Lehigh Valley Carpenters, have ruled that a harassing work environment can be created solely by speech not even aimed at the complainant, such as swimsuit calendars, and that speech that creates a hostile work environment automatically loses its protection under the First Amendment. How these cases would apply to a Christian bookstore (which is apparently not exempt from ENDA) is unclear. Working in a fire-and-brimstone conservative Christian bookstore might be said to be a "hostile or offensive environment" for a gay or lesbian employee, but the contents of the bookstore ought nonetheless to be protected by the First Amendment. The entire purpose of the First Amendment is to protect speech that is so offensive that it risks being suppressed. The fact that harassment lawsuits are between private parties does not make the First Amendment problem go away. The Supreme Court made clear in New York Times v. Sullivan (1964), a defamation case, and Hustler Magazine v. Falwell (1988), a tort case, that the First Amendment limits the courts' ability to award damages for speech to private plaintiffs, just as it limits the courts' ability to jail people for their speech. Moreover, many harassment cases are brought by government agencies, such as Meltebeke v. Bureau of Labor and Industries (1995), in which the Oregon Supreme Court held that religious-freedom guarantees limit the reach of harassment law over speech that unintentionally creates a "hostile work environment." Nor does the fact that a private employer can voluntarily restrict the speech of its employees in the workplace mean that the government can force it to do so (e.g., through threat of harassment lawsuits). This is a common argument, made by ENDA proponents like Wayne Besen, who argues that "the notion of 'free speech' at work is patently absurd." (So absurd that Besen exercises it daily in his job as a liberal editorialist). But the Supreme Court rejected this argument long ago, in Truax v. Raich (1916), when it emphasized that the fact that employment is at the will of the employer and employee does not mean that it is at the will of the government, and that an employee can thus bring a constitutional challenge to being terminated by a private employer that is acting under government pressure. Similarly, in Korb v. Lehman (1990), the Fourth Circuit Court of Appeals observed that although a private employer is free to fire an employee for his speech, the government violates the First Amendment when it makes the employer do so. My prior post on ENDA discusses another flaw in the bill: how its attorneys-fees provisions would encourage unnecessary litigation in wrongful termination and discrimination cases.