[UPDATE: After the article below was written, the strange sexual harassment bill it discusses was revised to create new problems (due to eliminating the legal requirement that conduct be “unwelcome” to constitute sexual harassment), and fix one of the problems discussed below (its classifying behavior as sexual harassment even absent any sexually-harassing effect, based on an employee’s subjective mental “purpose.”) See this later article.].
If your boss looks at you funny, can you sue, even if his dirty look didn’t make your work environment hostile? Not right now. But if you live in Virginia, that might change. Virginia is mulling passage of House Bill 1418, which would let employees sue small businesses over conduct that has the “purpose” of creating an offensive or hostile work environment — even if it doesn’t have that “effect” at all. This legislation may violate the First Amendment by adopting an overly broad definition of sexual harassment.
In its unanimous decision in Harris v. Forklift Systems (1993), the Supreme Court defined sexual harassment as unwelcome sexual conduct that creates a hostile or abusive environment, in both objective and subjective terms. This is a somewhat narrower definition than what the federal Equal Employment Opportunity Commission used in its 1980 sexual harassment “guidelines.” Under those guidelines, it is sufficient to show that the conduct had the purpose or effect of creating a hostile, offensive, or intimidating environment. The difference in definitions matters, because a federal appeals court struck down a school harassment policy that banned conduct that had the purpose of doing this, but not the effect. It found that punishment of offensive comments based on purpose alone rendered the school’s harassment code a violation of the First Amendment’s freedom of speech, in its unanimous decision in Saxe v. State College Area School District (2001).
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HB 1418 explicitly authorizes sexual harassment and discrimination lawsuits for compensatory and punitive damages “against any employer employing more than five but fewer than 15 persons” in Virginia. Apparently, it was already possible to sue such small employers for sexual harassment or discrimination in Virginia, because a lawyer says that “a private sector employee can also usually file a sexual harassment complaint with the Virginia Division of Human Rights (DHR) if their employer has 6 to 14 employees.”
What then, is the purpose of HB 1418? Maybe to redefine what sexual harassment is, in a problematic way. It defines sexual harassment to include three categories of harassment. The first two are just fine — they ban sexual extortion that everyone admits is legally sexual harassment — but the third is problematic (see Part “(iii)”):
Conduct amounts to harassment on the basis of sex when (i) submission to unwelcomed sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature is made either explicitly or implicitly a term or condition of a person’s employment; (ii) submission to or rejection of such conduct by a person is used as the basis for employment decisions affecting such person; or (iii) such conduct has the purpose or effect of unreasonably interfering with a person’s work performance or creating an intimidating, hostile, or offensive working environment. [Emphasis added]
So merely having the “purpose” of “creating” an “offensive working environment” would violate Virginia law if the bill passes — even if no one is actually harmed. What would show such purpose? A mean look or leer from a co-worker? Who knows. Finding out could require extensive, costly litigation. (By contrast, the Supreme Court has been very clear that a single “offensive utterance” does not have the effect of creating a hostile work environment, and thus doesn’t justify a federal sexual harassment lawsuit).
Law professors like Eugene Volokh say that having a bad “purpose” doesn’t usually strip speech of its protection under the First Amendment. A federal appeals court found that penalties turning on the speaker’s hostile “purpose” made a school’s harassment policy an unconstitutionally overbroad restriction on speech. As it explained in Saxe v. State College Area School District (2001), “the Policy’s prohibition extends beyond harassment that objectively” has a harassing effect. “The Policy unequivocally prohibits any verbal or physical conduct … that ‘has the purpose or effect of substantially interfering with a student’s educational performance or creating an intimidating, hostile or offensive environment.’ Unlike federal anti-harassment law … the Policy extends to speech that merely has the ‘purpose’ of harassing another.” [Emphasis added]
That doesn’t mean a hostile or offensive “purpose” is a good thing, or even that government officials have to tolerate it in their own workplace. As the Supreme Court pointed out in Waters v. Churchill (1994), government employees can be punished for all kinds of comments that the First Amendment would protect if anyone else uttered them, such as being “rude to customers.”
But the private sector is different. The government can’t regulate it as much as its own workplace.
As law professor Eugene Volokh points out, “There is no [First Amendment] exception for workplace speech” in the private sector. It’s true that a private employer can often punish employees for their speech. But that’s because the Constitution only applies against the government (like courts and lawmakers), not against the private sector. The government is subject to the First Amendment. The government can’t use fines or lawsuits to punish speech just because it is rude, insensitive, or reflects bad motives. It can only punish speech that actually rises to the level of discriminatory conduct, like a pattern of sexually harassing behavior. There is no “private workplace” exception to the First Amendment. For example, employers can say things that offend union members who work for them, if what the employer says is not coercive — as you can see from court rulings like NLRB v. Douglas Division (1978). And courts can’t make someone pay damages in a lawsuit over their speech, if that speech was protected by the First Amendment. That’s why the Supreme Court upheld the dismissal of a lawsuit for intentional infliction of emotional distress that had been brought against the hatefully homophobic Westboro Baptist Church, in its decision in Snyder v. Phelps.
As a result, when states define conduct as “harassment” under state law when it doesn’t rise to the level of harassment under federal case law — as HB 1418 does — that can create free speech problems. In Meltebeke v. Bureau of Labor and Industries (1995), the Oregon Supreme Court overturned a fine that civil-rights officials imposed on a business owner for religious harassment, citing religious freedom guarantees. In a concurring opinion, Justice Unis found that the fine violated free speech, because there was no proof that the business owner’s annoying religious invitations created a subjectively — as opposed to just objectively — hostile work environment. HB 1418 doesn’t explicitly require a subjectively and objectively hostile environment, either.
Similarly, in Lyle v. Warner Brothers (2006), the California Supreme Court dismissed a woman’s lawsuit for sexual harassment over repeated offensive sexual jokes told by Hollywood sitcom producers in her presence. To avoid potential First Amendment problems, it interpreted the California’s sexual harassment law to require a showing that the harassment was based on the plaintiff’s sex, rather than just offended her. It found that even if the jokes were sexually offensive, they didn’t constitute “harassment directed at plaintiff because of her sex.”
One of the California Supreme Court judges, Justice Chin, wrote a concurring opinion in the Lyle case stating that to allow a sexual harassment lawsuit over jokes that occurred during in the sitcom’s “creative process” would have violated free speech, even if the jokes had created a sexually hostile environment, and otherwise qualified as sexual harassment. None of the California Supreme Court justices suggested that he was wrong to apply freedom of speech to limit liability in sexual harassment lawsuits.
Unlike the California Supreme Court, SB 1418 might allow a sexual harassment lawsuit over even legitimate workplace discussions of sexual matters, because of its unclear language. It may define sexually offensive comments as “harassment on the basis of sex,” even if they are neither sexist nor directed at a woman, simply because they create a “hostile or offensive working environment.” It’s hard to tell, because the bill uses the vague words “such conduct” in two places to mean something very unclear — what the word “such” refers to is ambiguous. Under federal law, if the workplace is equally sexually hostile to both men and women, there is generally no liability for sexual harassment. That’s because the plaintiff has not been harassed based on her sex. Some conduct is deemed by courts to be inherently based on the target’s sex, like sexual advances. But other offensive behavior, such as discussing sex crimes or unpleasant sexual diseases, is not deemed to be either based on sex, or harassing, under federal law, if it is not aimed at someone because of their sex.
SB 1418’s three-part definition of sexual harassment appears to have been largely borrowed from the guidelines issued in 1980 by the Equal Employment Opportunity Commission. But as I noted above, that definition itself is too broad. And the bill changes the EEOC’s definition in subtle but confusing ways, such as by moving general limiting language that harassment must be “unwelcome” and of a sexual nature into prong (i) of the definition, leaving it unclear whether those general limits apply to prongs (ii) or (iii). So even if the EEOC’s definition is correct to apply to the private sector, the bill may misstate that definition in major ways.
Moreover, the EEOC’s guidelines aren’t binding on the private sector. They are mere advisory “interpretive regulations,” not binding regulations. Thus, the Supreme Court sometimes rejects how the EEOC interprets the civil-rights laws, such as in its decision in EEOC v. Arabian American Oil Co. (1991). So it would be risky to adopt the EEOC’s definition for use in Virginia’s private sector, when the EEOC has never adjudicated a private-sector sexual harassment lawsuit using this definition.
There is one other way that the bill’s definition of harassment may be overly broad: it allows lawsuits over speech that creates a merely “offensive” work environment, as opposed to a “hostile” or “abusive” one. “Offensive” reaches a broader range of speech than “hostile” or “abusive,” as courts have noted in upholding harassment policies because they avoided using the word “offensive.” (See O’Brien v. Welty, 818 F.3d 920, 930-31 (9th Cir. 2016)). The Supreme Court usually uses the words “hostile or abusive” to describe the work environment that triggers liability for harassment, not “offensive.” And offensive speech is usually protected by the First Amendment, as the Supreme Court explained in Texas v. Johnson.
