Many years ago, when I was a brash young conservative lawyer working in a big law firm, I said something that could have ended my career (and almost certainly would have today). It was March Madness, and I was running one of the firm’s two bracket pools. As a basketball snob, I disliked the traditional pool because it was too dependent on sheer, dumb luck. As I recall, lawyers’ ten-year-old kids had won the previous two years, and I wanted a pool for serious fans only.
So, I created what I called the “conservative bracket,” a pool that put a premium on picking upsets. In a firm-wide e-mail, I said you could join the traditional, “liberal” bracket — where merit was irrelevant to outcome and even the most ignorant fan could win a trophy — or you could join the firm’s Republicans and test yourself against the best.
That wasn’t the offensive part. Just wait.
Once the tournament got rolling, I intended to start each Monday with a fun and highly politicized summary of the weekend’s results. The year was 1995, and the mighty Arizona Wildcats were upset by Miami of Ohio in the first round — a result I predicted. So, in the gleeful opening paragraph of my Monday morning firm-wide e-mail (sent to every lawyer, paralegal, and secretary), I explained at some length that Arizona lost because it played “like a bunch of girls.”
Okay, that was the offensive part.
The chairman of the firm’s management committee was a liberal feminist, and the firm’s female partners were by and large quite feminist. I was a lowly first-year associate. My job was of no consequence, and I immediately heard through the grapevine that the partners were not pleased. I braced myself for the consequences.
The next morning, I came to work and saw that my office door was closed. When I opened the door, my office was empty and the walls were covered with posters of women’s college-basketball teams. I turned around and every woman in the firm was standing behind me, triumphant smirks on their faces. My secretary grabbed my hand and led me down the hall to the women’s restroom, where they’d put my desk and chair and taped “David’s Office” on the door.
They responded to my ham-handed attempt at humor with some humor of their own — humor with a point.
I wasn’t called in to human resources. I wasn’t “counseled.” I didn’t have to attend diversity training. And I certainly wasn’t fined. I kept rolling with my conservative bracket (I came in last), and I kept sending firm-wide e-mails.
I thought of that incident while reading Eugene Volokh’s analysis of a ridiculous decision from the Equal Employment Opportunity Commission (EEOC), handed down earlier this month. The facts are simple: A public employee wrote an e-mail to her supervisor saying that she thought that government employees worked less than private-sector employees, but she’d been “working like a civilian.” In response, her supervisor wrote this:
Wow . . . then I must be a damn fool . . . cause I’ve been working like a Hebrew slave the last 9 years and don’t have enough time to take off . . . at least somebody got it right.
That’s it. That’s the whole incident. The employee who received the e-mail was Jewish, and while the supervisor (called “S1” in the opinion) testified that he was referring to the period of Hebrew slavery recounted in the book of Exodus, she said that the comment “dredged up memories of how her family was targeted for systematically [sic] murder, incarceration, and deportation during the Holocaust.” Thus, the EEOC said that even this single comment could constitute “hostile environment” harassment:
In this case, S1 made the comment in an e-mail to Complainant, and S1 knew that Complainant is Jewish. Although S1 only made such a comment once, the comment packed a painful, potent punch. Specifically, S1’s comment made light of the long and painful history of Jewish persecution and genocide.
That single e-mail cost the supervisor $20,980, $10,000 in damages and $10,980 in attorneys’ fees — a crushing financial blow for most people. All because he made a joke about the book of Exodus. All because one person was too sensitive to either laugh it off or politely push back. All because the government is now subjectively policing the emotional impact of individual e-mails.
As Volokh notes, “hostile environment harassment claims aren’t always (or even usually) this easy to win,” but the governing law is inherently vague — asking courts and commissions to define what’s “severe” or “pervasive,” and requiring that they consider claims from the standpoint of a “reasonable person in [the] complainant’s circumstances.”
So, what do human-resources directors do? Faced with uncertainty, they retreat to a position far short of the legal line. They crack down even more on employee interactions. In other words, one small act of government censorship in one small case metastasizes through the system — leading private and public employees to engage in even more acts of censorship to avoid even a whiff of impropriety or illegality.
So, what do human-resources directors do? Faced with uncertainty, they retreat to a position far short of the legal line.
This is how free speech slowly but surely dies. It’s not just the finding that the supervisor’s single jokey e-mail was unlawful harassment. It’s not just the inevitable overreaction in HR departments across the land. It’s in the slow and corrosive erosion of our free-speech culture, where an entire society is taught that free speech ends exactly when personal offense begins.
The result is a world like many Americans live in today, where they keep their mouths shut at work, they keep a tight rein on their social-media feeds, and they confine their true opinions to the most private forms of communication. This culture isn’t everywhere, of course, but ask conservative employees in entire areas of public- and private-sector employment if they’re as free to speak as their progressive colleagues, and the answer is a resounding “No.”
How free are they to disagree with their diversity trainer? Can they argue against same-sex marriage with the same vehemence that their colleagues ask for “marriage equality”? Are they as free to discuss, say, the border wall or Trump’s executive order on immigration as their progressive friends? One thing I can say for certain, I have conservative friends who are afraid to test the proposition. They have mortgages to pay.
In my example, my colleagues responded to a joke with a harmless prank, and the result was a good story along with a lesson learned. Good manners matter, not because my job is at stake but because I care about my colleagues. Escalate the stakes, however, and you create environments of oppression and favoritism that build resentment, squelch the free exchange of ideas, and teach Americans that free speech itself is a problem to be managed, not a fundamental liberty to be protected.