Law & the Courts

Bostock and the Murky Future of Workplace Speech

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The Supreme Court’s decision leaves us with lots of questions. Congress should step in to provide answers, lest the judiciary do so instead.

In the wake of the Bostock case, it is easy to caricature conservative opposition to the ruling as a species of bigotry. After all, who doesn’t want gay and transgender employees to be protected from invidious workplace discrimination? But those protections, as Michael Brendan Dougherty observes, are “very popular” and “already exist” in many states. What troubles traditionalists is the Court’s incorporation of them under Title VII of the 1964 Civil Rights Act, which will render employers liable for unfashionable religious sentiments expressed by their employees.

Title VII itself contains no mention of “hostile work environments” or “harassment.” It merely prohibits discrimination “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.” In 1972, the Fifth Circuit Court of Appeals held in Rogers v. EEOC that “the phrase ‘terms, conditions, or privileges of employment’” protected employees from “a working environment heavily charged with ethnic or racial discrimination.”

The Rogers decision, and the “expansive concept” of workplace protections it championed, percolated through the federal appellate courts for over a decade before the Supreme Court unanimously affirmed its construction of Title VII in the 1986 case Meritor Savings Bank v. Vinson. In its Vinson decision, the Court held that a female plaintiff could establish a Title VII violation “by proving that discrimination based on sex has created a hostile or abusive work environment” so long as the harassment was, per Rogers and another previous lower-court decision, “sufficiently severe or pervasive ‘to alter the conditions of [the victim’s] employment and create an abusive working environment.’”

In the post-Vinson workplace, employers were liable for the insensitive, offensive, or disagreeable statements made by their employees. And while the Court’s “sufficiently severe or pervasive” standard might have allayed concerns about chilling speech in the workplace at the time, employers were still incentivized to adopt zero-tolerance policies to protect themselves from liability. One employee’s off-color joke might not constitute “sufficiently severe or pervasive” harassment to expose a company to a lawsuit, but a few off-color jokes made by a few employees at different times and places might well amount to a violation of Title VII. An Employee Relations Law Journal article from 1995 argued that zero-tolerance speech policies were the best way for employers to shield themselves from Title VII suits, particularly after the Civil Rights Act of 1991 expanded their potential liability:

An employer’s incentive to prohibit conduct and speech that might constitute harassment has increased based on the Civil Rights Act of 1991, which subjects employers to liability for emotional distress and punitive damages. To avoid liability, the prudent employer will proscribe all speech and conduct that may constitute harassment. The possibility of creating a “chilling effect” from prohibiting speech and conduct that may constitute harassment is outweighed by the risk of significant liability.

Christopher Caldwell argues in The Age of Entitlement that such corporate speech codes are emblematic of the “parallel Constitution” ushered in by the 1964 Civil Rights Act, a rival constitutional order that militates against the freedoms enshrined in the Bill of Rights. Others would argue that discussing a “chilling effect” or worrying about “workplace speech” obscures the plight of long-excluded minorities whom Title VII was designed to protect.

Both sides, however, acknowledge that the threat of Title VII litigation effectively restricts what employees can say about certain topics in the workplace. In the wake of Bostock, what these restrictions will entail for religious employees is unknown. Will an employee who displays iconography associated with a religion that opposes same-sex marriage be complicit in creating a “hostile work environment” for LGBT employees, and thus subject to termination by an employer looking to shield himself from liability? It is not an unreasonable question: An employee who posted photographs of “the Ayatollah Khomeni [sic]” and “an American flag burning in Iran” in her cubicle was said by a federal district court to be engaging in “national-origin harassment” against an Iranian co-worker. The relevant case law is replete with similar examples, and with the inclusion of sexual orientation and gender identity among Title VII’s protected classes, one can wonder just how far those protections go. If someone misgenders Caitlyn Jenner at the watercooler, are they creating a hostile work environment for transgender employees?

Eugene Volokh, a law professor at UCLA and the founder of the Volokh Conspiracy blog at Reason, tells National Review that while “it’s not easy for plaintiffs to win hostile-environment cases,” it’s “also not easy for employers to be sure they can avoid them.” He says that “hostile-environment harassment law has indeed been read to cover speech that’s seen as offensive based on race, religion, sex, and the like, even when it’s not personal insults or threats or anything directed at any particular offended employee.” Forms of religious expression in the workplace that defend traditional views of sex and gender, even if presented without malice, might be caught in Bostock’s whirlwind. Volokh highlights a recent case in which the EEOC “concluded that merely having a Confederate flag on one’s clothing, and wearing it every couple of weeks to work, could lead to employer liability for tolerating a hostile environment based on race.” Coworkers or even customers who discuss “their opposition to same-sex marriage or gender reassignment could lead to such liability” by that same logic, “and a careful employer may therefore be well-advised to forbid all such speech for fear of” litigation.

There are, as Volokh notes, many delicate and competing issues in quarrels over LGBT protections and religious liberty. Unfortunately, by reading into the Civil Rights Act of 1964 protections that no one involved in its passage thought it contained, the Court has countermanded the will of the people as expressed through their elected representatives. But a compromise that better accommodates both social conservatives and LGBT employees is still possible: Congress is perfectly capable of amending the law to clarify Title VII and its application to workplace speech. All that’s stopping it is a lack of political wherewithal, and that’s a problem everyone concerned with the judiciary’s ever-increasing encroachment on what is rightfully legislators’ turf should work to remedy.

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