August 05, 2005
The Illegitimate Birth of Political Correctness
In the aftermath of World War I, Supreme Court Justices Holmes and Brandeis realized that speech could be used to express ideas that were loathsome to the vast majority of American citizens. However, they subscribed to the belief that loathsome speech merits the same constitutional protections as admired speech and brilliantly defended the rights of all Americans to express themselves freely. In its craven prostration before the altar of political propriety this courageous sentiment is sorely lacking from today’s Court.
After Brandeis and Holmes left the bench, their beliefs were put to the test again during the Cold War, only instead of prohibiting "seditious" speech on the street corner, as they did during World War I, state and federal governments banned it from the workplace. In the anti-Communist hysteria after World War II, the Smith Act, the McCarren Act, the Communist Control Act, and various state and federal programs that mandated loyalty oaths all proscribed the employment of individuals who advocated the violent overthrow of the United States government. Among the most controversial of these legislative enactments was New York's Feinberg Law of 1949. This law barred from employment as a teacher in the New York public school system any person who advocated or taught the overthrow of the United States government by force or violence, or belonged to an organization that did so either currently or previously. At first, the Supreme Court upheld most of these laws. As the Communist panic waned throughout the late 1950s and 1960s, however, they were all overturned. Finally, in 1967, the Supreme Court even invalidated the Feinberg Law with Justice William Brennan calling it "a highly efficient in terrorem mechanism".
Today, the freedom of expression within the workplace is under attack again, this time by the sexual and racial McCarthyites of the political left. Much like the original McCarthyites who demanded fealty to the economic and political dogmas of capitalism and democracy and sought to stifle all civic dissent, today's tyrannical federal bureaucrats who espouse the dogmas of social decorum and equality seek to stifle sexual and racial dissent within corporate America. Rather than repressing the freedom of American Communists and anarchists to express their opinions within the workplace, they repress the freedom of expression for American racists, misogynists, ethnic chauvinists and homophobes. Instead of enacting a Feinberg law to protect New York's schoolchildren, these neo-McCarthyites have subverted a landmark of federal civil rights legislation in order to suppress contrary opinions and ostensibly protect American workers from ideas and that they find to be either repugnant or dangerous.
Ironically, the "highly efficient in terrorem mechanism" they have expropriated is Title VII of the Civil Rights Act of 1964, a law that was a legislative victory for every American opposed to bigotry within the workplace. The doctrinaire zealots of anti-discrimination in the Equal Employment Opportunity Commission (EEOC), however, have usurped this law and imposed federal censorship within the workplace by misconstruing the original intent of one small section of the statute. The clause they misinterpret intentionally pertains to hiring and firing practices and states,
"It shall be an unlawful employment practice for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin."
The EEOC has altered the application of this law by redefining the obvious intent of the phrase "conditions . . . of employment" from its common and logical definition of "hiring practices" to include the nature of the workplace environment itself. In so doing, they discovered a device that they could employ to impose a prior restraint against discriminatory speech and thereby obtrude their rigid social credo into the workplace environment. Presumably, if Congress had intended to pass a law that prohibited some form of speech within a specific environment, such as the workplace, in 1964 or at any time thereafter, it would have done so. It is absolutely certain, however, that the Civil Rights Act of 1964, either in its original purpose or in its intended effect, was NOT such a law.
By intentionally subverting this phrase, the EEOC has expanded the authority granted to it by Title VII and rewritten the law from one that prohibits discriminatory employment practices to one that proscribes the expression of discriminatory opinions within the workplace. Even its name belies this usurpation: it is the Equal Employment Opportunity Commission, not the Equal Employment Environment Commission.
The puritans of the EEOC began their a priori censorship of discriminatory speech in the workplace in 1980 by defining sexual harassment as:
"Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature . . . ." [emphasis added]Obviously, unwelcome sexual advances, as forms of assault, and requests for sexual favors, as forms of extortion, are clearly examples of pernicious and illegal harassment. As it pertains to the freedom of speech, however, the key issue concerns the final clause of this definition. Specifically, it pertains to the EEOC's distinction between verbal and physical conduct. If "verbal conduct" is speech, as it must be, then the EEOC's 1980 definition of sexual harassment must be a prima facie violation of the First Amendment.
Racism, sexism, homophobia and ethnocentricity and religious intolerance may be particularly abhorrent social philosophies, but regardless of the emotional distress their espousal might cause an employee, and notwithstanding the opinions of leftist ideologues imbued with legal power, their expression cannot be made illegitimate within a free society. Derogatory verbal conduct of a religious, ethnic, sexual or racial nature that substantiates or even advocates an illegal action, such as either direct or tacit discrimination within the workplace, serves an illegitimate purpose and must be proscribed. Derogatory verbal conduct that merely expresses offensive or repulsive personal opinions, regardless of the nature of those opinions, the hostility of the environment they engender, or the emotional distress they may inflict upon their audience, does not and cannot. Hence, the EEOC's definition of sexual harassment as verbal conduct of a sexual nature contains a prior restraint against free speech that is unconstitutionally indiscriminant.
By including "verbal . . . conduct of a sexual nature" in its definition of harassment, the EEOC has defined the term too broadly and transformed Title VII of the Civil Rights Act into a modern version of the Feinberg Law. As New York schoolteachers could not embrace or espouse the principles of an aberrant political philosophy during the Cold War, so too contemporary workers cannot embrace or espouse the principles of an aberrant social philosophy today. In the prescient words of Justice Hugo Black in his famous dissent in Alder v. Board of Education, the EEOC has transmuted a law intended to promulgate civil rights throughout the United States into another of:
". . . those rapidly multiplying legislative enactments that make it dangerous . . . to think or say anything except what a transient majority thinks at the moment. . . . [P]ublic officials cannot be constitutionally vested with powers to select the ideas people can think about, censor the public views they can express, or choose the persons or groups people can associate with. Public officials with such powers are not public servants; they are public masters."
Surely in this instance, therefore, the Supreme Court would recognize the EEOC's unconstitutional incursion into the American workplace. Surely it would rule that prohibiting "verbal . . . conduct of a sexual nature" was an unconstitutional restraint of free speech. After all, as Justice Brennan had written in 1963:
"Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity."
In a remarkable piece of judicial legislation, however, an activist Supreme Court allowed the EEOC to transform the Civil Rights Act of 1964 into the Anti-Discriminatory Speech in the Workplace Act of 1986. In the case of Meritor Savings Bank v. Vinson, it affirmed the EEOC's authority to proscribe speech within the workplace. In so doing, it fabricated a lower threshold of unconstitutionality in the restraint of socially repugnant speech than in the restraint of politically repugnant speech and opened the Orwellian specter of thought control within the workplace.
Ironically, the author of this repressive opinion was none other than William Rehnquist, an alleged paragon of judicial restraint. In his remarkable opinion, he first ignored the intent of Congress when it enacted the Civil Rights Act of 1964, as well as the language of the Act itself, and permitted the EEOC to regulate the workplace environment. Then he discovered a new right for employees; one that superseded the freedom of speech guaranteed by the First Amendment and had not been present in the Constitution heretofore. In an amazing example of judicial activism, he granted
". . . employees the right to work in an environment free from discriminatory intimidation, ridicule, and insult."He did not address from whence this novel right had originated, however, nor where it existed within the Constitution. Apparently, the EEOC had simply made it up, and that was good enough for him. Then, as a pièce de résistance, Justice Rehnquist wrote that he wasn't defining the word "free" in its most common and absolute sense of totally unencumbered but rather in some vague and undefined relative sense. For example, the
". . . 'mere utterance of an ethnic or racial epithet which engenders offensive feelings in an employee' would not affect the conditions of employment to [a] sufficiently significant degree to violate Title VII."
We were left to ourselves to wonder who would determine the arbitrary and subjective standard of the "sufficiently significant degree" of utterances that would constitute harassment and, hence, permit the censorship of opinion within the American workplace. We were left to ourselves to presume that the phrase "except for speech that creates a hostile workplace environment" had been inserted into Rehnquist's copy of the First Amendment surreptitiously. We were left to ourselves to speculate as to the quality and quantity of the epithets that would justify a prior restraint against speech and the suspension of the First Amendment within the workplace. And we have been wondering, presuming and speculating ever since.
In 1919, Justice Holmes wrote,
"Persecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your premises or your power and want a certain result with all your heart, you naturally express your wishes in law and sweep away all opposition. . . . But when men have realized that time has upset many fighting faiths, they may come to believe . . . that the ultimate good desired is better reached by free trade in ideas - that the best test of truth is the power of the thought to get itself accepted in the competition of the market."It is sadly ironic that the same Court from which these words were written now sanctions a de facto witch-hunt for racists, misogynists, homophobes, and ethnocentric and religious chauvinists within the marketplace itself. The vast majority of Americans reject these social philosophies as patently ridiculous and finds their espousal to be idiotic, offensive and repulsive. Nevertheless, our government cannot forbid discriminatory intimidation, ridicule and insult anywhere within a free society because we fear an offense to our sensibilities and yet remain free.
Posted by Chuck Hanrahan at August 5, 2005 10:42 AM
Chuck,
Congratulations, you have authored an estimated 1600 word post. I am eager to see the length of the responses.
Posted by: steve smith at August 5, 2005 11:38 AMTo paraphrase Victor Hugo, I apologize for the length of my post, but I didn’t have time to write a shorter one.
Posted by: Chuck Hanrahan at August 5, 2005 11:44 AMChuck,
Terrific sense of humor. I love it.
Posted by: steve smith at August 5, 2005 11:47 AMFinally!
Too manya people believe that the current atmosphere of pc talk has originated with in the work place itself. This inability to find the root of the issue has inhibited a proper attempt to return a persons ablity to choose his own words. I hope that identifing the “leftist” governments’ involvement may facilitate the correction of this distructive set of inhibitions.
What PC? Have you checked the media lately? Even Jon Stewart is making off-color Arab jokes.
Fact is, PC is just the name for the normal politeness of a nation that’s trying to deal with the new facts of diversity. We know that with our friends we can choose to be edgy, but with strangers we should hold our tongue. Question: how is this different from what previous generations were taught when dealing with people they didn’t know?
Plainly put- we’re feeling out the new boundaries of what is appropriate. This is the normal adjustment of a healthy society. Y’all Chicken Littles can sit down and be quiet about the end of Non-PC America.
Posted by: Stephen Daugherty at August 5, 2005 09:08 PMChuck, I have to compliment you on what I feel is one of the best articles I have read.
Not only presented well but factual and informative. From me you get a moment of (((Applause)))
Posted by: lisa renee at August 5, 2005 10:38 PMChuck:
First, on what do you base your claim that the phrase “conditions… of employment” in Title VII of the Civil Rights Act of 1964 has been misconstrued, and logically refers only to hiring practices?
“It shall be an unlawful employment practice for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.”
I see nothing in this text, nor in the full text of Title VII itself, that specifies that phrase as referring only to hiring practices. Indeed, from the context I would infer that it refers to the conditions in general, including worker safety. I would infer this because hiring has already been mentioned, and conditions is not mentioned in conjunction with it, but as part of a list offered under other ways it is unlawful to discriminate against a worker than simply firing or refusing to hire them. Like compensation, conditions and the other things referenced in that section are things that can change as a job goes on. You can get a raise, or you can have your pay docked. Your work conditions can improve, or they can worsen. This is not something set in stone when someone is hired, and I believe logically this phrase cannot be construed so narrowly.
The only thing you appear to have offered to back up your assertion of the clause’s meaning is the name of the commission itself, Equal Employment Opportunity Commission. You have said this is substantially different from an Equal Employment Environment Commission. I suspect if tomorrow all members of your ethnic group, whatever it might be, at your job were reassigned to work in a more hazardous environment than they previously had been, you would see that equal opportunity implies more than simply the equal opportunity to work… it also implies the opportunity to work in equal environments.
Next, I must call your attention to your case against the EEOC’s definition of sexual harassment, which you claim violates the first amendment. You say:
Obviously, unwelcome sexual advances, as forms of assault, and requests for sexual favors, as forms of extortion, are clearly examples of pernicious and illegal harassment. As it pertains to the freedom of speech, however, the key issue concerns the final clause of this definition. Specifically, it pertains to the EEOC’s distinction between verbal and physical conduct. If “verbal conduct” is speech, as it must be, then the EEOC’s 1980 definition of sexual harassment must be a prima facie violation of the First Amendment
You seem to forget that not all speech is protected by the first amendment. Shouting fire in a crowded theater is not protected, nor is slander, for just two examples. You yourself provide another example of unprotected speech: verbal requests for sexual favors, which you call extortion. The EEOC gave some examples, and then said other verbal forms of harassment are included as well that it left unspecified. You have leaped to the conclusion that the unspecified forms are otherwise protected speech, rather than similarly unprotected forms. The definition they offered does not go into what other verbal conduct may have been included, so we cannot fairly judge whether they meant behaviors such as slander or (as you have concluded) things that would normally and rightly be considered free speech.
Posted by: Jarin at August 6, 2005 12:09 AMStephen,
The difference is that, when we were growing up, derogatory speech against a racial, sexual, ethnic or religious group within the workplace was not a violation of Federal law as determined by the EEOC. You and I may agree or disagree about whether or not this kind of speech is appropriate or not, but we cannot permit our government to make it illegal.
Jarin,
First, I did a search on the phrase “condition of employment” in the US Code. I found only two examples and both obviously refer to hiring practices. Title 11(a) discusses the hiring of a trustee, and the second and more germane example proscribes,
“… discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization … .”[emphasis added]
Turning to the second example, by your logic (and the logic of the EEOC), this statute grants the federal government the authority to regulate derogatory “verbal conduct” of a union nature within the workplace. When properly interpreted, Title 29, much like Title VII of the Civil Rights Act, prohibits the act of discrimination, not the expression of any opinions about the relative merits of organized labor that might affect the nature of the workplace.
I know that some speech is illegal, but it is only that speech creates a “clear and present danger” that it “will bring about the subtantive evils that Congress has a right to prevent.” In and of themselves, the expression of derogatory thoughts by workers regarding racial, ehtnic, religious or sexual groups are not “substantive evils”. They are personal opinions and, unless they can be shown to substantiate or advocate an illegal ACT of discrimination, they must be protected by the First Amendment. Thus, the EEOC’s definition of harrassment is unconstitutionally vague.
Finally, I strongly believe that Congress has been derelict in its responsibility to act upon this issue. It is up to our elected legislature to define illegal workplace discrimination, not some federal bureaucracy or the Supreme Court. First, it should amend Title VII by adding the prefix “pre-“ to the word “conditions”. Second it must make requests for sexual favors and unwelcome sexual advances felonies and punish them as severely as other forms of extortion and assault. Third, if Congress also enacts a law that bans some forms of “verbal conduct” from the workplace, they should do so and see if the Supreme Court sustatins its constitutionality. I hope and pray that this time the Court would get it right and recognize such a law for what it is: a gross violation of the freedom of speech.
Discriminatory acts must be illegal within an egalitarian society; discriminatory speech cannot be illegal within a free one.
Posted by: Chuck Hanrahan at August 6, 2005 02:19 PMChuck,
Very good post. In a polite society (not that I’m convinced we have one of those, as Stephen assumes) it is unnecessary to make laws regarding whether we can or cannot say things that are offensive, just because they are offensive. In a free society (which is what we’re supposed to have) there should not be such laws. The First Amendment gives us all the right to say stupid things. If the EEOC didn’t meddle so much in why and how a person could be fired, then the natural consequences of saying offensive things to your co-workers would be enough reason not to say them.
Posted by: Stephanie at August 6, 2005 03:57 PMJarin,
First, I did a search on the phrase “condition of employment” in the US Code. I found only two examples and both obviously refer to hiring practices. Title 11(a) discusses the hiring of a trustee, and the second and more germane example proscribes,“… discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization … .”[emphasis added]
Again, I’m not sure that it is so obvious that this example refers to only hiring practices. Once again, terms and conditions are mentioned after, and separately from, the issue of hiring.
Turning to the second example, by your logic (and the logic of the EEOC), this statute grants the federal government the authority to regulate derogatory “verbal conduct” of a union nature within the workplace. When properly interpreted, Title 29, much like Title VII of the Civil Rights Act, prohibits the act of discrimination, not the expression of any opinions about the relative merits of organized labor that might affect the nature of the workplace.
You again make the leap that verbal conduct refers to simply derogatory remarks. You have failed to support that.
I know that some speech is illegal, but it is only that speech creates a “clear and present danger” that it “will bring about the subtantive evils that Congress has a right to prevent.” In and of themselves, the expression of derogatory thoughts by workers regarding racial, ehtnic, religious or sexual groups are not “substantive evils”. They are personal opinions and, unless they can be shown to substantiate or advocate an illegal ACT of discrimination, they must be protected by the First Amendment. Thus, the EEOC’s definition of harrassment is unconstitutionally vague.
You are again leaping to the conclusion that merely derogatory speech is covered by this definition. The definition itself said merely and other verbal or physical conduct. You have taken that to mean all verbal conduct that some may find offensive. You have offered no support for this conclusion, apparently preferring to argue against a straw-man of your own creation rather than the actual definition given. Yes, it is vague, probably purposefully so… for the reason that too narrow a definition may exclude some things which are indeed harassment that may not be thought of until someone tries them. But mere vagueness does not mean it is unconstitutional, any more than the vagueness of obscenity laws means they are unconstitutional. As with obscenity, the determining of sexual harassment is in the hands of those most equipped to judge it: a jury of one’s peers, in the locale where the alleged incident of harassment took place.
Finally, I strongly believe that Congress has been derelict in its responsibility to act upon this issue. It is up to our elected legislature to define illegal workplace discrimination, not some federal bureaucracy or the Supreme Court.
With all due respect, Congress created the EEOC with the express purpose of defining such things in their regulations. This responsibility has been delegated to them, much like the responsibility for environmental policy has been delegated to the EPA. Administrative law set by the properly empowered agencies is no less valid than statutory law.
First, it should amend Title VII by adding the prefix “pre-” to the word “conditions”.
That would again assume that your interpretation of their intent is correct, which you have been unable to support.
Second it must make requests for sexual favors and unwelcome sexual advances felonies and punish them as severely as other forms of extortion and assault.
Legally, though, extortion involves obtaining property. While you see a clear link between requests for sexual favors and extortion (and I would not disagree with you that such a link exists), under the law there is no such link and using your logic requests for sexual favors would also have to be considered “free speech” since they do not then rise to the level of a clear and present danger of a substantive evil that Congress is empowered to prevent.
Third, if Congress also enacts a law that bans some forms of “verbal conduct” from the workplace, they should do so and see if the Supreme Court sustatins its constitutionality. I hope and pray that this time the Court would get it right and recognize such a law for what it is: a gross violation of the freedom of speech.
Again, you jump to the conclusion that the other forms of verbal conduct that would be involved are things that would normally be considered protected speech. This is merely an assumption and cannot be conclusively reached through reason, only supposition.
Discriminatory acts must be illegal within an egalitarian society; discriminatory speech cannot be illegal within a free one.
There is a point where the line between speech and act blurs. Calling someone repeatedly can be considered harassment, as can calling someone using obscene or threatening language. These are already against the law, even though some might argue they are just speech and should be protected under the first amendment. In both regular harassment and sexual harassment cases it is patterns of repetition, and relative severity, which distinguish between protected speech and criminal acts. And it is a jury of ones peers which decides which level the act in question rises to.
Posted by: Jarin at August 6, 2005 06:16 PMSorry, that should have been addressed to Chuck, forgot to trim off the initial “Jarin” before quoting his reply….
Posted by: Jarin at August 6, 2005 06:18 PMJarin,
I guess the word “discriminatory” would have been more accurate than “derogatory”. I fail to see any “straw man”, however. Title VII prohibits discimination in employment and the EEOC has expanded that to prohibit discriminatory “verbal conduct”. The EEOC has banned discriminatory speech in the workplace. Where’s the straw man?
Second, in Title 29 are you arguing that the Congress intended to ban verbal conduct that would “encourage or discourage membership in any labor organization”? If so, are you arguing that such a ban would be constitutional?
Third, extortion is a substantive evil that Congress has a right to prevent. If I tell you, “Boy, I’m so mad at my brother I could just kill him!”, I’m expressing an opinion and my ability to do so is protected by the First Amendment. On the other hand, if I offer you $10,000 to kill my brother, I’ve broken the law. When it comes to discriminatory speech, if I say, “All women are stupid”, I’m expressing an opinion (albeit an idiotic one). If I say, “We should fire all the women who work here”, I’ve broken the law.
As far as my recommendations are concerned, I tend to be a bit of a strict constructionalist. I think that the burden of proof resides on the agency that seeks to expand the authority granted to it beyond the original statute. Where does the EEOC get the power to ban discriminatory speech? It certainly doesn’t exist in Title VII. The only debate about this clause in 1964 when Congress passed the Civil Rights Act pertained to whether or not to include the word “sexual” in it. This was because the classified ads of the day would advertise for “Help Wanted - Male” and “Help Wanted - Female” specifically. This provision made such advertisements illegal.
I am certainly uncomfortable with issues as fundamental as free speech being decided by “Administrative Law”. This is what Rehnquist permitted in Meritor and what I object to so strenuously. I think that Congress should write the laws, not bureaucracies or the courts, especially when they extend into murky areas of statutory authority or questionable areas of constitutionality.
Just out of curiousity, I looked up the definition of harassment in the US Code. Title 18, Section 1514, defines it as,
“A course of conduct directed at a specific person that causes substantial emotional distress in such a person and serves no legitimate purpose”.[emphasis added]
Racist, misogynistic, homophobic, ethnically chauvinistic and religiously intolerant opinions may be sufficiently loathsome to engender substantial emotional distress amongst civil libertarians, but their utterance cannot be proscribed legally within a society that purports to guarantee the freedom of expression to everyone. From Roger Williams to William Lloyd Garrison to Eugene Debs to Lenny Bruce, the sacrifices of America’s heretics and contrarians on a myriad of occassions throughout its history have established that repugnancy and illegitmacy cannot be synonyms within a free society.
Finally, I am frightened by your blurring of the line between actions and thoughts. Free societies constrain the former; totalitarian societies constrain the latter. Remember Holmes’s definition. Do you really think that racist, sexist or religiously or ethnically intolerant opinions are substantive evils? Racist acts, yes; racist speech, no. If you disagree, what other thoughts do you find to be sufficiently dangerous to censor? Nazism? Communism? Catholicism? And who should determine which ideas merit censorship? You? Me? The EEOC? The Supreme Court?
I think that the far wiser and safer course of action is to trust the American people to express their opinions freely, no matter how idiotic or loathsome you or I may find them to be. I don’t want some bureaucrat in Washington protecting us from ideas that they think we might find to be abusive or insulting. Being offended by the opinions of others is the price I pay willingly to live in a society that protects my right to express my own.
Posted by: Chuck Hanrahan at August 6, 2005 08:02 PMI guess the word “discriminatory” would have been more accurate than “derogatory”. I fail to see any “straw man”, however. Title VII prohibits discimination in employment and the EEOC has expanded that to prohibit discriminatory “verbal conduct”. The EEOC has banned discriminatory speech in the workplace. Where’s the straw man?
The straw man is that the EEOC has banned SOME discriminatory verbal conduct. The example they gave was requests for sexual favors, which you agree with. They did not specify what other verbal conduct fits their definition, but your arguments have consistently acted as if all derogatory or discriminatory expressions of opinion do fall under their definition. That is the straw man. The simple fact is that we do not know what other verbal conduct falls into the definition because they did not choose to specify it. It could just as easily be fighting words, or slander, or other forms of unprotected speech as the protected opinions you jump to the conclusion that they are referring to.
Second, in Title 29 are you arguing that the Congress intended to ban verbal conduct that would “encourage or discourage membership in any labor organization”? If so, are you arguing that such a ban would be constitutional?
No, I’m not. My position is that 1) “conditions” does not logically refer solely to hiring practices, and 2) “other verbal conduct” does not necessarily mean *all* verbal conduct, including protected free speech. It is my position that it could easily refer only to unprotected forms of speech, and that it is an unwarranted leap to assume it refers to merely unpopular opinions. In this example, I think that Congress definitely intended to ban the ‘verbal conduct” of making direct threats or otherwise using verbal intimidation to encourage or discourage membership in labor organizations. That does not mean they intended to ban all speech that encourages or discourages membership in the organization, most certainly not expressions of mere personal opinion.
Third, extortion is a substantive evil that Congress has a right to prevent.
Yes, but requests for sexual favors are not considered extortion under the law, so exactly what substantive evil is being prevented other than the speech itself?
If I tell you, “Boy, I’m so mad at my brother I could just kill him!”, I’m expressing an opinion and my ability to do so is protected by the First Amendment. On the other hand, if I offer you $10,000 to kill my brother, I’ve broken the law. When it comes to discriminatory speech, if I say, “All women are stupid”, I’m expressing an opinion (albeit an idiotic one). If I say, “We should fire all the women who work here”, I’ve broken the law.
Agreed. But if every time you pass a coworker who’s a female you start saying things like “stupid bitch”, and otherwise insulting them and verbally harassing them, is it still just a protected opinion? If every time you pass someone who’s gay you start calling them sinners and telling them they’re going to hell, is it just an opinion still? Isn’t there a point at which this verbal conduct crosses beyond any reasonable bounds of civility and begins to interfere with others ability to work with you? That is the sort of behavior that comes under the idea of creating a hostile environment, and harassment.
As far as my recommendations are concerned, I tend to be a bit of a strict constructionalist. I think that the burden of proof resides on the agency that seeks to expand the authority granted to it beyond the original statute. Where does the EEOC get the power to ban discriminatory speech? It certainly doesn’t exist in Title VII.
Nor is it trying to ban merely discriminatory speech. It is trying to ban harassment and hostile work environments, which may be created by *certain forms* of discriminatory speech such as requests for sexual favors, which is the only example that has been concretely given and which itself is not an example of protected speech. Jumping to the conclusion that they are trying to ban all discriminatory/derogatory expressions of opinion is unwarranted. The EEOC is granted this authority by being empowered to regulate work *conditions* to provide equal opportunities to workers. By trying to change that from work conditions to “preconditions”, you are not being strictly constructionist.
The only debate about this clause in 1964 when Congress passed the Civil Rights Act pertained to whether or not to include the word “sexual” in it. This was because the classified ads of the day would advertise for “Help Wanted - Male” and “Help Wanted - Female” specifically. This provision made such advertisements illegal.
I fail to see the relevance of this to your arguments; the lack of debate by itself does not imply one interpretation or the other was the intent of congress.
I am certainly uncomfortable with issues as fundamental as free speech being decided by “Administrative Law”. This is what Rehnquist permitted in Meritor and what I object to so strenuously. I think that Congress should write the laws, not bureaucracies or the courts, especially when they extend into murky areas of statutory authority or questionable areas of constitutionality.
The problem is, you have not established that this is truly a free speech issue or a questionable area of constitutionality. You keep making the leap from the example they give (itself an unprotected form of speech) to all discriminatory opinions, a leap that is not warranted by their definition alone. You assume the definition encompasses otherwise protected forms of speech. This is your straw man.
Just out of curiousity, I looked up the definition of harassment in the US Code. Title 18, Section 1514, defines it as,“A course of conduct directed at a specific person that causes substantial emotional distress in such a person and serves no legitimate purpose”.[emphasis added]
Racist, misogynistic, homophobic, ethnically chauvinistic and religiously intolerant opinions may be sufficiently loathsome to engender substantial emotional distress amongst civil libertarians, but their utterance cannot be proscribed legally within a society that purports to guarantee the freedom of expression to everyone.
Really? Please tell me, what is the legitimate purpose of calling your female coworkers “stupid bitches” repeatedly? What is the legitimate purpose of telling a homosexual over and over that they are sinners, that they are going to burn in hell? What is the legitimate purpose of calling your black coworkers niggers, or your white protestant coworkers WASPS? All of these and similar insults are designed *solely* to cause emotional distress to those they are used against, as far as I can see. What about them gives them legitimate purpose in your eyes? What makes them not harassment?
From Roger Williams to William Lloyd Garrison to Eugene Debs to Lenny Bruce, the sacrifices of America’s heretics and contrarians on a myriad of occassions throughout its history have established that repugnancy and illegitmacy cannot be synonyms within a free society.
I agree. But there is a difference between merely expressing an opinion, ie “I think women are stupid” or “I think blacks are lazy”, and badgering your female or black coworkers about those opinions over and over again. The former, while repugnant, is clearly protected speech. The latter rises to the level of harassing behavior. It is the latter that is considered illegitimate, not the former.
Finally, I am frightened by your blurring of the line between actions and thoughts. Free societies constrain the former; totalitarian societies constrain the latter. Remember Holmes’s definition. Do you really think that racist, sexist or religiously or ethnically intolerant opinions are substantive evils? Racist acts, yes; racist speech, no. If you disagree, what other thoughts do you find to be sufficiently dangerous to censor? Nazism? Communism? Catholicism? And who should determine which ideas merit censorship? You? Me? The EEOC? The Supreme Court?
No, I don’t think the opinions themselves are substantive evils. Again, you construct a straw man by assuming I am against all expression of such opinions. I believe that a pattern of repeatedly harassing coworkers with those opinions can rise from the level of just expressing an opinion to the level of a behavior or action, rather than simply speech. Legislating against that action is a restriction on the nature of the expression, not the content. And I would hope that similar harassment of republicans or homophobes or bigots would also be prevented by the same statutes.
I think that the far wiser and safer course of action is to trust the American people to express their opinions freely, no matter how idiotic or loathsome you or I may find them to be. I don’t want some bureaucrat in Washington protecting us from ideas that they think we might find to be abusive or insulting. Being offended by the opinions of others is the price I pay willingly to live in a society that protects my right to express my own.
Here you go back to the original straw man once more: you assume that the laws and regulations are merely to protect people from ideas, rather than abusive behavior such as harassment. You assume that it is merely to protect people from being offended. You have not established this, and in fact cannot do so solely using the definition the EEOC provides.
Posted by: Jarin at August 6, 2005 10:24 PMit’s my god given american right to be an asshole!!!
sigh…
are we so bored that we are back on the PC bashing bandwagon?
have we gotten to that point? every day some preacher is spouting off about them faggots or godeless liberals and you actually think the liberal PC bunch has any sway over anything?!
wow….lay off the rum.
Posted by: views at August 7, 2005 01:41 AMviews:
Seems like it. There are now TWO articles on watchblog about Political Correctness. The second one isn’t as well written, though, and mostly rails about multiculturalism only being possible through totalitarianism and equates employer-mandated sensitivity training with 1984’s government-mandated “thought police” and “reprogramming”.
Posted by: Jarin at August 7, 2005 02:07 AMJarin,
The fact that there’s room in the law, because of it’s vagueness, for it to be taken to an extreme that would impede free speech is a problem, not whether anyone is actually taking it to that extreme currently. To reach such an extreme all it takes is for the government to take baby-steps in the direction of the extreme over a period time, until a peak frenzy occurs which will give justification to using the extreme measures.
Posted by: Stephanie at August 7, 2005 02:40 AMStephanie:
Except that there really isn’t room in the law for it to be taken to that extreme, vague statute or not. That is prevented by the first amendment, which would always take precedence if anyone tried to take it to the extreme you are afraid of.
Posted by: Jarin at August 7, 2005 03:38 AMyeah…next thing you know they’ll try to ban flag burning…
oh….ummm..awkward….
Jarin, my friend,
I think that we’re going to have to agree to disagree.
One more time, I know that the EEOC & the Meritor decision did not ban all verbal conduct of a sexual nature, only discriminatory speech that “creates a hostile workplace environment”. Does that settle the “straw man” issue?
I simply contend that mere speech that creates a hostile environment anywhere, even within the workplace, is an insufficient reason to suspend the First Amendment unless that speech advocates or substantiates some illegal act.
Think of Holmes’s famous example of a man fallaciously shouting “Fire!” in a crowded theater. This speech can be banned constitutionally because it advocates and promotes an illegal or illegitimate act. But imagine if another man shouted “This play stinks!” Even if he did so repeatedly, he would be expressing an obnoxious opinion that does not elicit a call to action. Hence, regardless of the hostility of the environment he’s created or the attitude of the other audience members regarding the legitimacy of his opinion, his speech is protected by the First Amendment. The actors may leave the stage, the other audience members may boo him, and the manager of the theater may evict him, but the Federal government cannot arrest him.
The use of racial or sexual epithets, even the repeated use of repugnant slurs, is protected by the Constitution. Can you point to place in the Constitution where Rehnquist’s alleged “right to work in an environment free from discriminatory intimidation, ridicule, and insult” exists and explain how it supercedes the freedom of speech? If workers have this “right”, do pedestrians have the “right” to walk in an environment free … ? Do political candidates have the “right” to speak in an environment free … ? Do bloggers have the “right” to post in an environment free …? If I choose to insult pedestrians with discriminatory invective in Times Square every day at high noon, I think that the creation of a hostile environment might be a fairly safe bet. Does the “illegitimacy” of my opinion or the hostility it may engender or the frequency with which it’s expressed give the Federal government the ability to make my action illegal?
The Federal government cannot tell you or me or anyone what opinions we may express, regardless of the hostility those opinions may engender or the frequency of our advocation or the manner or environment in which we choose to express them. (FYI - In 1992, the Supreme Court overturned the “fighting words” doctrine in R.A.V. v. St. Paul, so now even fighting words are protected speech.) Regardless of the legitimacy of the opinion in your mind, or mine, or in the minds of an audience, unless they advocate or threaten an illegitimate act, the repeated use of repugnant epithets is simply obnoxious, but protected, speech.
For speech to be illegal, it must create a clear and present danger that it will elicit a substantive evil - an evil action, not simply a hostile reaction - for it to fall outside the protection of the First Amendment. No matter how repulsive that speech might be - no matter how much hostility it might engender or how frequently it’s spoken - it must be protected by the First Amendment.
Finally, regardless of your opinion, speech is not behavior.
I believe that a pattern of repeatedly harassing coworkers with those opinions can rise from the level of just expressing an opinion to the level of a behavior or action, rather than simply speech. Legislating against that action is a restriction on the nature of the expression, not the content. And I would hope that similar harassment of republicans or homophobes or bigots would also be prevented by the same statutes.
You’re kidding me, right? It should be a federal crime to repeatedly express negative opinions about Republicans!?!?! One or two might be OK, but a whole bunch, enough to offend the tender sensibilities of a delicate neocon and thereby create a hostile environment, should be against the law?!?!?! And you don’t see how someone else might view this as thought control? I think your calendar might be stuck on 1984.
Do you really think that Congress can legislate against speech based upon some nebulous “nature of the expression”? If they can do that for some kinds of speech (i.e. discriminatory speech that creates a hostile workplace environment), can they do it for any kind? Can they do it for all kinds of speech? Exactly how many times can I call my Republican co-worker a blockhead before the federal thought-police take me away to Leavenworth?
If I’m a die-hard Red Sox fan and you’re a Yankees fan, couldn’t your continued rooting for the Yanks and teasing me every time the Sox lose, thereby creating a hostile workplace environment, constitute a violation of federal law? (And, IMO, rooting for the Yankees under any circumstances “serves no legitimate purpose”.) Don’t you see how you and Rehnquist and the EEOC are trying to legislate against bad manners, not criminal conduct? Don’t you see how regulating either the nature of the opinion OR the nature of its expression is thought control?
So yes, the mere repeated expression of discriminatory opinions cannot constitute harassment unless these opinions advocate or substantiate some kind of illegal or illegitimate action. So yes, as much as I might loath a co-worker who calls me a “stupid Irishman” or a “dumb honky” day in and day out, to paraphrase Voltaire, I’ll defend to the death his right to do so. And because I believe, like Brandeis that the cure for obnoxious speech “is more speech, not enforced silence”, I’d probably be able to come up with a choice epithet or two of my own that would express my opinion succinctly. But I certainly wouldn’t go whining to the Federal government about the violation of a fictitious “right” that does not and cannot exist within a free society.
Posted by: Chuck Hanrahan at August 7, 2005 05:43 PMChuck,
Well written post. Your premise, that free speech includes the right to be an asshole is valid. The extension that it should apply to being allowed to be an asshole at work is not.
You’re attempting to connect unrelated things. The right to a safe work environment has nothing to do with your right to free speech. Free speech lets you hold your opinions and state them in public and private forums. The workplace is simultaneously neither of those and both. It is a place for business and, with some exceptions, not a place for espousal of “free speech” as intended by the legislatures.
Name calling, for example, in an environment where one can not leave without consequence is not protected within that environment. Say what you want out of those boundries, fine. But make it permissible for your boss to say “stupid Irishman” everyday, not fine. It’s not protected speech, it’s assault and improper use of authority. The workplace is not a purely public environment, it’s a controlled enviroment where rules to prevent that misapplication of authority must apply.
Chuck,
Your example of the man in the theater yelling “this play stinks” repeatedly that cause the actors to leave the stage and the patrons to be angry may be protected from arrest by the first amendment but, he would not be protected from a variety of lawsuits, which, could result in incarceration for failure or inability to pay.
Posted by: steve smith at August 8, 2005 10:31 AMDave,
I guess your copy of the First Amendment says,
“Congress shall make no law … abridging the freedom of speech except within the workplace.”Sorry, I must have the older version.
Please don’t misunderstand me. Companies can (and in my opinion should) regulate speech within the workplace, but I just don’t think that it’s constitutional for the EEOC to do so.
In the narrow mind of a callous supervisor, virtually any physical distinction can be used to create a degrading and offensive workplace environment. An employee’s intelligence, eyesight, height, weight, teeth, aroma, hair quality and quantity, hearing and visage can and are used to create abusive workplace environments. If Congress chose to enact one, would a law that bans discriminatory “verbal conduct” of an orthodontial nature be constitutional?
It’s none of the federal government’s business if my boss insults me daily, even to the point where he or she creates an environment full of “discriminatory intimidation, ridicule, and insult.” I’m equally free to do so in return, and if I’m fired or reprimanded as a result, then a discriminatory action has taken place. If and when that happens, I should notify the EEOC immediately. It’s none of the fed’s business what we say to each other, but it is very much their business what we do to each other.
One final note in closing, strengthening the penalties against workplace discrimination from civil to criminal is another reason why Congress should address this matter directly and enact a constiutional federal statute. I believe that anyone who engages in discriminatory actions within the workplace deserves a couple of years worth of “sensitity training” in a federal penitentiary.
Posted by: Chuck Hanrahan at August 8, 2005 10:47 AMsteve,
I know we’re a litigious society and one person can sue another for any reason whatsoever, but I fail to see the damages here. The price of the ticket? The emotional disappointment of an interrupted performance?
But in the end, you’re right. One private party can sue another regardless of the frivolity of the claim - but that’s another topic for another day.
Posted by: Chuck Hanrahan at August 8, 2005 11:01 AM
