Creating an intimidating work environment
During the most recent military action of Operation Desert Storm, the negative attitude toward Vietnam era veterans became vocal. [This constitutes a v]iolation of 41 CFR 60-250.4(a) [ban on discrimination against veterans] and 41 CFR 60-250.6(a).
21 Many reasonable people might view strident denunciations of Catholicism, whether political or religious, as creating a hostile environment for devout Catholics, 22 or criticisms of feminism as creating a hostile environment for women. 26 The EEOC likewise found that a claim that an employer "permitted the daily broadcast of prayers over the public address system" over the span of a year was "sufficient to allege the existence of a hostile working environment predicated on religious discrimination." 27 A recent article by two employment lawyers gives "repeated, unwanted `preaching´ episodes [by a fundamentalist Christian employee] that offend coworkers and adversely affect their working conditions" as a "bright-line example" of actionable harassment; an employer in such a situation would be "well advised to take swift remedial action." 28 If polite religious proselytizing can be harassment, then of course harsher criticism of religion would be, too. 1988) (barring discrimination in "terms, conditions, . In the EEOC's words, "disparag[ing] the religion or beliefs of others" in the workplace may be illegal; "a Christian employee would have recourse under Title VII if a `secular humanist´ employer" -- or presumably secular humanist coworkers -- "engaged in a pattern of ridiculing the employee's religious beliefs.´" 29 A state administrative agency has found that an employee was religiously harassed by a Seventh Day Adventist coworker who often talked about religion to everyone. held that such speech could by itself create a hostile, abusive, or offensive environment; 54 and of course as a factual matter this makes sense: When your coworkers, who are law enforcement professionals like you, correctly tell each other that you had committed crimes that many think are pretty reprehensible, of course this will create a chilly environment for you. ." 55 This makes sense as a matter of substantive harassment law: For instance, if I (a Jew) know my coworker is a virulent anti-Semite, I might find it hard to work around him even if he's always polite to my face. § 111.321 (1997) (including membership in national guard or reserves together with all the other proscribed bases of discrimination, in the section that has been read as barring harassment as well as discrimination); Wisconsin Dep't of Workforce Dev., (saying that "[e]mployes may not be harassed in the workplace based on their protected status" and listing "military service membership" as a protected status); Indianapolis and Marion County Code § 581-102 (barring discrimination by city contractors in "terms, privileges, or conditions of employment" based on "disabled veteran status and Vietnam era veteran status"); Anne Arundel Community College, ("Students, faculty, staff and authorized guest users have a right to be free from electronic harassment by any member of the college community on the basis of their sex, sexual orientation, race, . 4 (policy banning veteran status harassment alongside racial, sexual, and other forms of harassment); Weber State University, General Employee Information (same); VNA Health Care Servs. The question is whether the government acting as sovereign may suppress such speech, on pain of huge liability, in order to protect the employee from it. [T]he fact that a plaintiff learns second-hand of a racially derogatory comment or joke by a fellow employee or supervisor also can impact the work environment . Having to work around people who hate you (even politely hate you) might well create a "hostile, abusive, or offensive work environment." But this shows that harassment law provides no safe harbor even when one is talking to coworkers who one knows won't be offended -- any bigoted statements made at work may lead to harassment liability. Web Page (nondiscrimination statement listing veteran status harassment alongside other forms of harassment); Cameron University, Complaints of Discrimination (same). The trial court concluded that this constituted sexual harassment of the candidate.
(An appellate court agreed that the speech was constitutionally unprotected, but reversed the harassment portion of the judgment on unusual state-law grounds.) 36 The NLRB has likewise suggested that it would be racial harassment for employees to use the words "Spics, Kikes, and Broads" to criticize the president of the employee union. The Sixth Circuit put it quite plainly: In essence, while [harassment law] does not require an employer to fire all "Archie Bunkers" in its employ, the law does require that an employer take prompt action to prevent such bigots from expressing their opinions in a way that abuses or offends their co-workers.
38 on off-color jokes and cartoons displayed in the workplace. permit, tolerate, or condone the sexual harassment of any employee" (apparently including such humor), and to "evaluate on an annual basis the performance of each department head on the basis of the quality and success of their efforts to implement and enforce the antidiscrimination policies." 39 Another court has found a hostile environment based largely (though not entirely) on "caricatures of naked men and women, animals with human genitalia, . 40 Though "[m]any of the sexual cartoons and jokes . 47 A Hanson, Massachusetts harassment policy for city employees defines sexual harassment as "any unwelcome action, sexual in content or implication, in the workplace that includes . Thus, they recommend, to avoid liability employers should purge workplaces of "blonde jokes" (on the plausible theory that they convey offensive attitudes towards women), 49 discussions of scenes from sex comedies such as "There's Something About Mary" -- "`It's exactly the sort of thing that could create a problem for somebody,´ says Carla Hatcher, a Dallas attorney who handles office sexual harassment cases" 50 -- and Clinton-Lewinsky jokes. Court of Appeals in for instance, upheld a $125,000 damages award based in part on a coworker's playing "misogynistic rap music" and displaying "music videos depict[ing] an array of sexually provocative conduct." 52 The injunction in another case barred the possession or display of any "sexually suggestive, sexually demeaning, or pornographic" 53 materials in the workplace, defining "sexually suggestive" as covering anything that "depicts a person of either sex who is not fully clothed . And I describe below many instances in which harassment complaints were brought based on legitimate art, from Goya to cartoons, but which never came to court because employers, faced with the risk of liability, ordered the art taken down.
None of the jokes were said specifically to the complainant; none referred to her; the cartoons were distributed by men and women alike, apparently once or twice a month over several years; the cartoons weren't even sexist or misogynistic. It concluded that the jokes "ha[d] no humorous value to a reasonable person," and "offended [complainant] as a woman." The Commission ordered the city to pay damages, to "not . 51 Art and Music: Likewise, art or music that is seen as politically offensive, misogynistic, or sexually themed can lead to harassment liability. Accurate Discussions Among Co-Workers: Harassment law may also punish accurate statements about coworkers, such as the fact that a coworker parole officer had been a prostitute. or veteran status"); pamphlet #ERD-7334-P (including "membership in the military reserve" in prohibited bases of harassment, alongside race, sex, and so on); IBM Corp., United States Staff Letter No. § 250.45 (1997) (barring discrimination in places of public accommodation based on a person's "lawfully wearing the uniform of any branch of the military or naval service"); Okla.
"It is Necessary to Prohibit the Individual Actions" Conclusion: The Speech that Harassment Law Restricts Workplace harassment law is a speech restriction of remarkable breadth.
The Effect of Cases That Rely Even in Part on Speech F. 1996) (same as to "alienage or citizenship status"); New York City Comm'n on Human Rights document (asserting that New York City human rights law bars harassment based on, among other things, "alienage or citizenship status"); D.
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