Thinking ahead about freedom of speech and hostile work environment harassment

Article Abstract:

Scholars, lawmakers and citizens willing to carve out an exception to free speech and free religion protections under the Constitution to ban hostile work environment harassing speech should consider the risks such exceptions could pose for workplace speech rights. Employer attempts to comply with hostile environment laws have resulted in serious art being removed because of the depiction of nudity. While free speech rights are not absolute, changes to the structure of First Amendment jurisprudence should be engaged in with utmost caution.

Workers, Oppenheimer, David Benjamin

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Workplace harassment and the First Amendment: a reply to Professor Volokh

Article Abstract:

Restrictions on workplace speech that may result from hostile work environment sexual harassment suits are unlikely to encroach on First Amendment protections because of the high burden of proof that hostile environment plaintiffs face. Courts have ruled that many offensive forms of speech were not sufficiently pervasive to warrant liability. Also, private employers are not held to constitutional standards unless some state action is involved, and employers do have the right to restrict many forms of workplace speech.

Volokh, Eugene

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The collision of rights and a search for limits: free speech in the academy and freedom from sexual harassment on campus

Article Abstract:

Academic freedom and free speech protections can conflict with university codes designed to prevent sexual harassment. Codes established at Harvard and Stanford are innovative responses to this dilemma. In particular, Harvard's code attempts to balance this conflict by specifically banning certain words and behavior. A somewhat broader version of the Harvard concept might be preferable, but an overly broad code would create free speech problems.

Colleges & Universities, Colleges, Universities, and Professional Schools, Other Justice, Public Order, and Safety Activities, Colleges and universities, Free Speech & Assembly, Universities and colleges, College students, Harvard University, Stanford University, Academic freedom

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