At the University of Nebraska, a graduate student who kept a picture of his girlfriend wearing a bikini on his desk was slapped with a harassment complaint; the university ordered the picture removed. In Murfreesboro, Tenn., a city hall employee complained that an impressionist painting displayed there, which showed a woman's breast, constituted workplace harassment; the city attorney took it down. It is the thesis of author Jonathan Rauch that these ludicrous cases are not isolated examples, but rather are indicators of a discouraging trend toward exempting the workplace from basic First Amendment protection of free speech.
In an article published in the June 23 issue of The New Republic, Rauch demonstrates that workplace harassment suits are reaching much further than overreactions about sex, encompassing speech termed "offensive" in terms of religion, race and national origin. The seeds of this trend were sown in 1985, when a court ruled that potentially offensive speech, even when unaccompanied by discriminatory action, was illegal in the workplace. Employers, the judge ruled, have the responsibility of censoring any derogatory cartoons, mimicking of minority stereotypes and even off-color jokes. A single "joke, jest or otherwise," would demand "prompt and severe discipline."
This ruling, and many subsequent ones, cites Title VII of the Civil Rights Act of 1964, which protects employees from "hostile environments." The result has been to restrict speech in the workplace to a semi-fascist degree. One company was sued by the Equal Opportunity Employment Commission for harassing a Japanese-American worker by using images of samurai and sumo-wrestlers to depict its Japanese competitors.
According to writer Walter Olson, author of "The Excuse Factory," the number of harassment charges filed more than doubled between 1989 and 1993. Only about 5 percent of the claims were based on the traditional idea of harassment; the remainder alleged "hostile environments."
But even more alarming than the actual results of this misguided movement are the motivations behind some of its adherents. Especially revealing is an opinion by the Sixth United States Circuit Court of Appeals, which states, "By informing people that the expression of racist or sexist attitudes in public is unacceptable, people may eventually learn that such views are undesirable in private as well. Thus, Title VII may advance the goal of eliminating prejudices and biases in our society."
Rauch terms this "an astonishing, profoundly radical, statement," in that it explicitly states that the real goal of workplace law is to silence racists, sexists and whomever else we don't like listening to. This constitutes a blatant rejection of the basic premise of the First Amendment: that "the best way to limit biases is to allow an environment where biases are pitted freely against each other."
An additional, empirical problem with using the "hostile environment doctrine" to limit speech in the workplace is that no place is not someone's workplace, so it is only a matter of time before the doctrine creeps into every area of life. In one instance, a Federal Express courier sued the company because a customer on her route repeatedly demanded dates. Here, the workplace extended even as far as the private home of a customer.
What if, instead of benignly whitewashing the graffiti of the Gothic Queers, the University determined that those sentiments created a hostile environment for heterosexuals and took disciplinary action to protect itself from a lawsuit? Far-fetched, you say? This is where we are headed when we equate discriminatory speech with discrimination itself. In 1990, a plaintiff maintained that she was harassed by a superviser who, "Talked to her about his homosexuality and tried to draw her into a conversation on the topic of sexual preference." The nerve of some people.
The movement toward free speech restrictions in the workplace began, like so many other misguided initiatives rooted in political correctness, with a sound premise. If employers use discriminatory speech in hopes of driving women and minorities away, it seems intuitive to demand some recourse. But difficult as it seems, we must allow the offending speech. It should not be illegal to be obnoxious. And even absent these unconstitutional restrictions, employees are still protected from discriminatory actions in hiring and pay, sexual harassment in which employers demand sexual favors, as well as threats, obscenity and slander, which are not protected by the First Amendment.
Members of minority populations-and everyone else-are better off in an environment where speech is as unobstructed as possible. If the First Amendment is disregarded in the workplace, what we get is an end to any discussion of race, religion or sex. "Sensitivity trainers" encourage employees to be thin-skinned and litigious, resulting in a sterile environment in which people fear basic human interaction. Case in point: After four hours of sensitivity training, New York sanitation workers concluded that "the only way to stay out of trouble was to avoid the women." Sounds like a prescription for real understanding.
Parker Stanberry is a Trinity junior.
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