Speaking of Workplace Harassment: A First Amendment Push toward a Status-Blind Statute Regulating 'Workplace Bullying'

36 Pages Posted: 25 Oct 2012 Last revised: 25 Nov 2012

Date Written: July 1, 2012

Abstract

Under Title VII’s hostile environment theory, expression that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment constitutes discrimination. Although workplace harassment may fit the criteria that have warranted the suppression of speech in other contexts, the following question remains: can the government selectively regulate only certain disfavored subjects of workplace harassment? Hostile environment theory proscribes harassing speech in the workplace based on race, color, religion, sex, and national origin, while permitting harassing speech based on sexual orientation or any other unspecified classification. In this way, hostile environment theory creates a hierarchy of expression, prohibiting certain subjects while tolerating others. Although not explicit, the unmistakable message is that the government finds certain forms of harassing speech (e.g., sexist speech) more offensive and disagreeable than others (e.g., heterosexist speech). It is axiomatic that the government may not suppress the expression of ideas simply because society finds the ideas offensive or disagreeable.

To address free speech concerns, this Article proposes the enactment of a statute regulating “workplace bullying,” the status-blind equivalent of workplace harassment. A workplace-bullying statute would prohibit workplace abuse that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create a hostile environment, but it would apply irrespective of discriminatory intent. Although a status-blind statute would mark a significant departure in the law, the idea has gained attention and popularity in the United States even apart from any First Amendment concerns. Perhaps the most significant development is the Healthy Workplace Bill, workplace-bullying legislation introduced in several state legislatures. Another sign of progress is the emergence of contractual protections against workplace bullying. In many ways, the stage is set for regulating workplace harassment broadly in the United States, as many European countries have done for years. The problem of subject-matter underinclusion provides an additional reason for American lawmakers to seriously consider a status-blind statute.

Keywords: Title VII, workplace harassment, hostile environment, First Amendment, subject-matter underinclusion

Suggested Citation

Vartanian, Jessica R., Speaking of Workplace Harassment: A First Amendment Push toward a Status-Blind Statute Regulating 'Workplace Bullying' (July 1, 2012). University of Maine School of Law, Maine Law Review (Forthcoming), Available at SSRN: https://ssrn.com/abstract=2166641

Jessica R. Vartanian (Contact Author)

United States Courts ( email )

United States

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