First Amendment Free Speech Protections Limit University's Enforcement of its Sexual Harassment Policy
A Federal Appeals Court in Philadelphia enjoined Temple University from enforcing its “facially overbroad” sexual harassment policy because some speech that creates a “hostile or offensive environment” may be protected speech under the First Amendment. In DeJohn v. Temple University, the Third Circuit Court of Appeals invalidated a public university’s Policy on Sexual Harassment that reads like that of many private employer’s, finding fault with the italicized language:
For all individuals who are part of the Temple community, all forms of sexual harassment are prohibited, including the following: an unwelcome sexual advance, request for sexual favors, or other expressive, visual or physical conduct of a sexual or gender-motivated nature when… (c ) such conduct has the purpose and effect of unreasonably interfering with an individual’s work, educational performance, or status; or (d) such conduct has the purpose or effect of creating an intimidating, hostile or offensive environment.
The court found three areas of the policy language that were overboard so as to potentially stifle protected free speech:
- The phrase “gender-motivated nature” is too indefinite taking into account the speaker’s motivations not limiting only the affect of speech and possibly inhibiting expression of a broad range of social issues. The Court also cautioned that “we must be aware that ‘gender’ to some people, is a fluid concept.”
- The phrase “conduct which has the purpose and effect of unreasonably interfering” is too broad as it prohibits speech that “intends” to cause disruption. The university may only prohibited speeches that it reasonably believes will actually and materially disrupt the learning environment. (Interestingly, the “purpose and effect” language used by the EEOC.)
- The phrase “unreasonably interfere[s] with an individual’s work” is too restrictive because it may encompass speech that creates a hostile or offensive environment but is protected nonetheless. A policy may prohibit speech that “substantially” interferes by using an additional standard like “severe and pervasive.”
Many employees in the private sector believe they have a constitutional right to say whatever they want in the workplace. This is not the case and employees in the private sector may be disciplined for violating workplace conduct standards.
Private employers are not subject to the free speech protections of the First Amendment. They can also take solace in the fact that a federal court is less likely to wordsmith their employment policies. The case shows the difficulty that all employers face in regulating workplace speech and conduct. There are obvious challenges in drafting a harassment policy that is not so replete with legalese that is becomes incomprehensible to the workforce.
Private employers are protected by the First Amendment, but not subject to its restrictions.
Thus, the First Amendment does not prevent them from firing bigots, but if the government (through threats of tort liability or otherwise) makes them fire bigots who engage in protected speech, they can indeed raise a First Amendment defense.
As cases like Korb v. Lehman (4th Cir. 1990) and Truax v. Raich (Supreme Court, 1916) make clear, the restrictions an employer VOLUNTARILY adopts are not subject to the Constitution, but the Constitution DOES protect it from being FORCED to adopt inappropriate restrictions on its employees.
Korb held that the First Amendment forbade the government from pressuring a private employer to fire an employee for his speech, even though the private employer could have voluntarily fired the employee.
Truax held that the Constitution barred a state from coercing an employer into firing an employee because he was an alien, even though back then there were no civil-rights statutes preventing an employer from voluntarily firing an employee, meaning the employer could voluntarily have fired him.
Thus, the First Amendment is a shield -- but not a straightjacket -- for private employers.
By the way, tort liability constitutes state-action subject to the First Amendment, as New York Times v. Sullivan (1964) held.
I explain all of this in an August 5, 2008 post at OpenMarket.org, the blog of the Competitive Enterprise Institute, where I am Counsel for Special Projects.