Workplace Harassment

Workplace Harassment

"If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion or other matters of opinion, or force citizens to confess by word or act their faith therein."

S. C. Just. Robert Houghwout Jackson - 1940

Speech can be hostile. It can be abusive, intimidating, offensive, boorish, insulting, demeaning, idiotic, repugnant and harassing. In every instance, however, the First Amendment to the Constitution protects it from governmental constraint unless, as Justice Oliver Wendell Holmes, Jr. wrote in 1919:

"... the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree."¹

The "clear and present danger" test was developed in response to the Espionage Act of 1917. Previously, the Supreme Court had used the concept of "bad tendency" to determine when Congress could limit the freedom of speech guaranteed by the First Amendment legitimately. This test had grown out of a pernicious principle of English common law called "constructive treason." Constructive treason held that any criticism of the throne was a form of de facto treason in that it could foment a coup d'at or insurrection. The "bad tendency" test held that a person could be prosecuted legitimately for expressing thoughts or opinions that tended to elicit actions proscribed by law. In other words, speakers or authors could be prosecuted if the thoughts or opinions they expressed might induce the listener or reader to violate the law, regardless of the likelihood of that possibility.

The "clear and present danger" standard replaced "bad tendency" and is now a firmly established tenet of Constitutional law. This test stipulates that the government can only restrain speech if it can prove beyond a reasonable doubt that the thoughts expressed will cause a substantially evil act from which society has a presumptive right to protect itself. Hence, the government cannot proscribe speech, per se, unless it can prove the proximate causation of substantive illegality. In Holmes's famous example, falsely shouting "Fire!" in a crowded theater is not a form of protected speech; but by implication, doing so in an empty theater or shouting "Smoke!" in a crowded one is. Thus, if a speaker harangued an audience of barnyard animals to assassinate members of Congress, this speech would not contain sufficient proximity to justify proscription; it would be tantamount to shouting "Fire!" in an empty theatre. If this same speaker harangued an audience about the generic evils of Congress and a listener assassinated a Senator subsequently, this speech would not contain sufficient causation to justify proscription; it would be tantamount to shouting "Smoke!" in a crowded theatre. If this same speaker harangued an armed and angry mob on the steps of the Capitol to assassinate members of Congress, however, this speech would contain sufficient proximity and causation to justify proscription; it would be tantamount to shouting "Fire!" in a crowded theatre.

In the aftermath of World War I, Holmes and his ideological compatriot, Louis Brandeis, realized that the government might enact legislation that was intended to suppress speech that advocated ideas that were frightful or loathsome to the vast majority of American citizens. Nevertheless, they propounded the tenet that abhorrent speech merited the same constitutional protections as admired speech, and eventually a majority of the court concurred. This principle was put to the test again during the Cold War, however, only instead of prohibiting "seditious" speech on the street corner, state and federal governments banned it from the workplace. In the anti-Communist hysteria after World War II, the Smith Act, the McCarran 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 who belonged to an organization that did so either currently or previously. At first, the Supreme Court upheld most of these laws by dusting off the "bad tendency" rule. However, as the Communist panic waned throughout the late 1950s and 1960s, they were all overturned eventually. Finally, in 1967, the Supreme Court even invalidated the Feinberg Law, albeit by majority of only five to four, when it overturned Alder v. Board of Education (1952) with Keyishian v. Board of Regents (1967), in which Justice William Brennan characterized the law as a "highly efficient in terrorem mechanism."²

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, tyrannical federal bureaucrats who espouse the dogmas of social decorum and equality seek to stifle sexual and racial dissent within corporate America today. 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 that they find to be either loathsome or dangerous or both.

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 workplace censorship 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."³

The EEOC has altered the implication of this law by redefining the obvious intent of the phrase "conditions ... of employment" from its far more 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 to obtrude their rigid social credo into the workplace environment.

In fact, at least two examples of how the EEOC has defined this phrase improperly can be found in the United States Code itself. The first is Title 29, which prohibits denying employment based upon membership in a union. It 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...."⁴ [Emphasis added.]

When interpreted properly, Title 29 of the U.S. Code, 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. The second example can be found in Title 11, (a), which states,

"The trustee ... may employ or authorize the employment of a professional person ... on any reasonable terms and conditions of employment, including on a retainer, on an hourly basis, or on a contingent fee basis."⁵ [Emphasis added.]

In both normal conversation and in the United States Code, a "condition of employment" is a prerequisite or stipulation that pertains to hiring practices. Legitimate conditions of employment for an outside salesperson for example might include access to personal transportation or a willingness to accept remuneration based upon commissions instead of a salary, while illegitimate conditions of employment would include that person's religion, gender, race or ethnicity. Thus, if an employer imposed any of these latter criteria as a "condition of employment," that employer would be in violation of Title VII of the Civil Rights Act.

Presumably, if Congress had intended to pass a law that prohibited some form of speech within a specific environment, such as the workplace, it would have done so. It is absolutely certain, however, that the Civil Rights Act of 1964, neither in its original purpose nor in its intended effect, was 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...."⁶ [Emphasis added.]

Obviously, unwelcome physical sexual advances, as forms of assault, and verbal 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 essential issue concerns the final clause of this definition, or more specifically in the Commission's distinction between verbal and physical conduct. If "Congress shall make no law ... abridging the freedom of speech," as the Constitution stipulates, and if "verbal conduct" is bureaucratic jargon for speech, as it must be, then the EEOC's 1980 definition of strictly verbal sexual harassment becomes a prima facie violation of the First Amendment. If the Commission had merely excluded the words "verbal or physical" from its definition of sexual harassment or even simply replaced the word "or" with the word "and," its enforcement of Title VII would become entirely constitutional.

By distinguishing between verbal and physical conduct of a sexual or racial nature, the EEOC's definition of the word harassment contravenes its definition found elsewhere in the United States Code. Because the Congress has never passed any law that defined or prohibited harassment within the workplace, the Code does not characterize this practice, per se. It does employ the word harass, however, to connote threats of physical violence when it addresses "Interstate Stalking."⁷ It also defines the word "harassment" in Title 18, Section 1514 strictly within the parameters of the issuance of temporary restraining orders to protect Federal witnesses. Specifically, harassment is,

"A course of conduct directed at a specific person that causes substantial emotional distress in such a person and serves no legitimate purpose."⁸

Thus, harassment must be conduct that causes substantial emotional distress and serve no legitimate purpose. 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 myriad occasions throughout its history have established that repugnancy and illegitimacy cannot be synonyms within a society that purports to venerate and safeguard the freedom of personal expression.

Racism, sexism, homophobia and ethnocentricity may be particularly abhorrent social philosophies, but regardless of the emotional distress their espousal might cause an employee, and notwithstanding the opinions of ideologues imbued with bureaucratic power, their expression cannot be made illegitimate anywhere within a free society. Discriminatory verbal conduct of a religious, ethnic, sexual or racial nature that substantiates or even advocates an illegal act, such as either direct or tacit discrimination within the workplace, serves an illegitimate purpose and can be proscribed legitimately. Derogatory verbal conduct that merely expresses offensive or repulsive personal opinions does not and cannot, regardless of the nature of those opinions, the hostility of the environment they engender, or the emotional distress they may inflict upon their audience. The expression of loathsome opinions, regardless of their nature or frequency, does not "create a clear and present danger" of inducing illegal discrimination, and thus does not contain a sufficient degree of causation to merit proscription. 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.

As it pertains to the EEOC's 1980 definition of sexual harassment, misogynistic speech per se should be permitted, but misogynistic speech that advocates a discriminatory employment act should be proscribed. In other words, an employee must be entitled to express a socially repugnant belief within the workplace, such as telling a joke whose premise is based upon the contention that women are not as intelligent as men, without the fear of governmental repression. Conversely, a supervisor who stated that because women are not as intelligent men, female employees deserve less pay than male employees would be guilty of advocating a violation of the Civil Rights Act and, hence, liable for prosecution. Regardless of the frequency of occurrence in the former example, the repugnant speech fails to pass Justice Holmes's test of proximity and degree, while the latter example succeeds.

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 dissent in Alder v. Board of Education, the EEOC has transmuted a law intended to promulgate civil rights within the workplace 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."⁹

Ever since Marbury v. Madison (1803), the Supreme Court has affirmed its right to impose its interpretation of the United States Constitution upon the legislative and executive branches of government. Surely, in this instance it would recognize the EEOC's unconstitutional incursion into the American workplace. Surely, it would rule that prohibiting any form of "verbal conduct" of a sexual nature was an unconstitutionally expansive prior restraint of 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."¹⁰

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 (1986), it affirmed the EEOC's authority to proscribe speech within an employment environment. 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. The Meritor case was based on the accusation of a female employee at Meritor Savings Bank that her male employer had intimidated her into having sexual relations on numerous occasions. Her allegations included incidents of public fondling, the fondling of other female employees and rape, as well. Rather than bringing criminal proceedings against the supervisor for extortion, assault or rape, she brought a civil suit under Title VII after she had been dismissed from the bank by suing her supervisor and the bank itself for sexual harassment. Written ironically by an alleged paragon of judicial restraint, William Rehnquist, the Court's opinion not only sustained the EEOC's authority to regulate the nature of the workplace in excess of its statutory provision, but it upheld the Commission's guidelines restraining the freedom of expression.

First, Justice Rehnquist quoted approvingly from an appellate court decision, Rogers v. EEOC (1971) that did not pertain to the prior restraint of speech but rather to a discriminatory workplace environment created by the inferior and discriminatory treatment of Hispanic clientele. As quoted by Rehnquist, the Rogers opinion stated,

"'[T]he phrase "terms, conditions or privileges of employment" in [Title VII] is an expansive concept which sweeps within its protective ambit the practice of creating a working environment....'"¹¹

Without any further proof, clarification, elaboration or justification, the reader is left to ponder from whence the EEOC's authority for this "expansive concept" of a "protective ambit" originated. It certainly did not derive from any legislative action on the part of Congress. According to Rehnquist, the EEOC simply created it out of whole cloth and then an activist federal judiciary embraced it as "existing case law." Second, he eschewed differentiating between verbal conduct such as lewd and lascivious comments and physical conduct such as rape and assault. By sustaining the EEOC's interpretation of Title VII, he discovered a new right; one that superseded the freedom of speech guaranteed by the First Amendment and had not been present in the Constitution heretofore, by granting

"... employees the right to work in an environment free from discriminatory intimidation, ridicule, and insult."¹²

Then, as a pie de ristance, 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. Again partially quoting from the Rogers decision, Rehnquist wrote that by "free" he meant frequently or largely or usually free, not completely free, in that 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.)"¹³

Realizing either consciously or unconsciously that he had opened the Pandora's Box of thought control, Justice Rehnquist then quickly kicked it aside and concluded by stating that Vinson's allegations, which included "criminal conduct of a most serious nature," were sufficient to uphold her claim.

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 offensive opinions within the American marketplace. 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 to the Constitution 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.

Notwithstanding the risk of redundancy, this is the doctrine of "bad tendency" at its worst. Absent the clear and present danger of illegality, the expression of discriminatory opinions cannot be synonymous with the act of discrimination. Although the First Amendment does not protect speech that will "bring about the substantive evil" of illegal discrimination, it does protect speech that merely might do so. Speech that advocates or impels discriminatory acts within the workplace should fall into the former category. Speech that simply reveals the prejudicial convictions of the speaker should fall into the latter category. Thus, unless the government can establish a direct causal link between some form of speech, such as discriminatory speech, and an illicit act, such as discrimination within the workplace, the speech should be covered by the protective ambit of the First Amendment. In short, although some members of an audience may believe that discriminatory beliefs are not legitimate, the expression of those beliefs should be. To paraphrase Voltaire, although some workers may disagree with the discriminatory opinions of their co-workers, they should defend their right to assert them or jeopardize their own freedom of expression.

Moreover, the expression of opinions, even the repeated expression of noxious opinions, cannot be a "course of conduct" as the phase is used in the definition of harassment found in Title 18 of the United States Code. For opinions to rise to the level of conduct, they should accompany, advocate or at least imply some course of action. Holding a gun to someone's head and saying, "I'm going to kill you," does not connote the same conduct as shouting, "Kill the ump!" at a crowded ballpark. A course of action necessarily includes or incites behavior; and the expression of a belief, even an offensive belief that intimidates, ridicules or insults its audience, is not behavior. Communicating thoughts, without acting upon those thoughts or encouraging others to do so, cannot be construed to be a course of conduct. In short, the phrase "verbal conduct" is an oxymoron.

Finally, even if this interpretation of the common, ordinary definition of the phrase "course of conduct" is incorrect, according to Title 18 harassment should cause "substantial emotional distress" in order to be unlawful. The definition of substantial emotional distress is certainly open to a wide variety of possible interpretations, but it appears obvious that harassment that is exclusively verbal would have to be of such a nature as to cause a substantial emotional injury to the afflicted party. Absent the espousal of an illegal act by the speaker or author, the difficulty with proving the crime of causing "substantial emotional distress" is that it often occurs solely in the mind of the victim; it is a psychological crime. Its psychological nature does not make it any less real or heinous than a physical or financial crime; it simply makes it more difficult to prove that a crime has been committed in the first place. Because a person accused of a crime must be presumed to be innocent, without independent corroboration of some sort to prove that any particular verbal "course of conduct" did indeed cause substantial emotional distress, proving the commission of a crime becomes extremely problematic. The mere assertion of substantial emotional distress does not and cannot constitute proof of it.

Without this corroboration, the burden of proof rises from exceedingly difficult to virtually impossible when the harassing "course of conduct" excludes behavior and is comprised of expressed thoughts and opinions exclusively. After all, the United States government must, in the words of Justice Holmes,

"... be eternally vigilant against attempts to check the expressions of opinions that we loathe and believe to be fraught with danger..."¹⁴

Obviously, exposure to "opinions that we loathe," opinions that may intimidate, ridicule and insult us, could cause emotional distress in some people, even significant emotional distress. Being subjected to loathsome opinions, even within the workplace, however, is the price we pay for living in a society that guarantees our own freedom of expression, and as Justice Cardozo said in 1937:

"Freedom of expression is the matrix, the indispensable condition, of nearly every other freedom."¹⁵

Thus, the right of the speaker to express an offensive opinion must take precedence over the listener's privilege not to be offended by it, regardless of the place in which it is expressed or the nature of the professional relationship between the speaker and the listener.

Of course, it may be possible to inflict substantial emotional distress by simply speaking loathsome opinions, but to do so, the words would have to rise from the level of merely offensive to a level that would constitute premeditated verbal torture. Opinions that simply annoy, aggravate, insult, degrade, abuse, harass, demean and intimidate their audience cannot, in and of themselves, inflict substantial emotional distress. For example, simply speaking derogatory racial, sexual, religious or ethnic epithets, regardless of their quantity or quality, could not rise to the level of verbal torture; doing so would simply be the repeated expression of loathsome opinions. This principle was substantiated when the Supreme Court all but overturned the "fighting words" doctrine of Chaplinsky v. New Hampshire (1942) in R. A. V. v. City of St. Paul (1992).¹⁶ The workplace environment would have to be more than merely abusive or hostile for it to constitute verbal harassment; it would have to be sufficiently despicable and flagitious that is was utterly unbearable for a normal person to tolerate. Absent the advocacy or occurrence of an illegitimate act on the part of the speaker that might constitute discrimination, it is difficult to imagine any kind of opinions or thoughts that a speaker might express within the workplace that could rise to the level of malicious verbal torture.

Thus, if the definition of harassment is to be expanded in order to include the mere expression of offensive opinions as well as illicit behavior, it should be classified as a prior restraint against both. Placing restraints against engaging in illicit actions is the definition of civilization; placing them against expressing offensive opinions is the definition of totalitarianism. By defining the expression of thought as some nebulous form of "verbal conduct," the EEOC's definition of harassment censor those elements of an employee's speech that one or more other employees might find to be sexually, racially, ethnically or religiously intimidating, demeaning and insulting. Rather than use discriminatory words to establish the intent of an employee's discriminatory acts, the words themselves are forbidden if they meet Justice Rehnquist's arbitrary and ambiguous standard of a "sufficiently significant degree." Prohibiting verbal conduct that permeates the workplace with "discriminatory intimidation, ridicule, and insult" restrains the free expression of ideas and opinions prior to their declaration. It is debatable whether or not the United States government can censor the expression of the political, social or economic beliefs and opinions of any individual under any circumstances. If it can, however, case law has established clearly that this form of censorship might be constitutional only under the most extreme and exigent circumstances, such as some form of national emergency, not merely because the expression of those opinions and beliefs by one employee might offend the sensibilities of another employee.

Nevertheless, perhaps the threat of "an abusive working environment" is so severe a challenge to the survival of the American culture that it meets the burden of the extreme and unusual circumstances required to justify a prior restraint against loathsome speech. In order to determine whether a prior restraint against speech is justified within the workplace or not, two questions should be addressed:

Is the workplace a sufficiently unusual environment that it qualifies for some sort of special status within which the guarantees of First Amendment to the Constitution should be limited or abrogated in some way?

Do certain groups of employees deserve an extra measure of protection above and beyond the equal protection of the laws guaranteed by the Fourteenth Amendment? If so, which ones and why? In other words, against whom is "discriminatory intimidation, ridicule and insult" permissible constitutionally, and against whom is it not?

To the vast majority of Americans, presumably including even the Justices of the Supreme Court, the answer to the first question is a simple one: no. The First Amendment does not permit Congress to abridge the freedom of speech in any location. If Congress had enacted legislation that censored the expression of offensive speech within the workplace explicitly, the Supreme Court could have determined its constitutional validity. It is abundantly clear, however, that the 88th Congress did not consider the Civil Rights Act to be such a law. Moreover, if the dubious notion of exclusively verbal harassment exists at all, it should exist throughout society, not simply within the workplace. A federal Anti-Heckling Act or Clean Language Act or Polite Social Discourse Act would all be obviously and grossly unconstitutional. As a venue in which the vast majority of Americans congregate on a consistent basis, the workplace is neither sufficiently unusual nor extraordinary as to merit consideration as some kind of unique environment into which the protective ambit of the First Amendment does not extend. Speech within the workplace should be guaranteed the same degree and kind of protection that is extended to speech in the home, on the street corner or at the podium.

Secondly, if the homophobic, ethnocentric, racist and misogynistic employees of today have become the Communistic schoolteachers of the 1950s, have their co-workers become the schoolchildren of the State of New York? Are some of today's workers in need of some special measure of protection against the repugnant and dangerous ideas represented by the expression of objectionable and loathsome opinions? Like every American, workers surrender the dubious privilege of the enlisting the aid of the federal government to repress speech that they might find to be offensive in order to ensure that it cannot repress their own freedom of expression. If the federal government is entitled to prohibit speech that intimidates, ridicules and insults workers on the basis of some genetic criteria such as sexual orientation, gender, religious affiliation, race or ethnicity, can it prohibit discriminatory speech against all workers on the basis of every genetic criterion? In other words, can the federal legislature determine unilaterally which genetically derogatory opinions are permissible within the workplace, and which are not? If Congress amended Title VII to include a myriad of genetic criteria, could it authorize the EEOC to expand its definition of workplace harassment to include these criteria constitutionally?

The expression of opinions that demean employees genetically may include a wide variety of genetic characteristics. In the narrow mind of a callous and vicious co-worker, 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 and hostile working environments. Hence, under the principle espoused by Meritor, workers are permitted to permeate the workplace environment with discriminatory invective directed toward myopic Moslems or stupid Russians or obese women or ugly homosexuals or short Negroes on the bases of the former characteristics but not upon the bases of the latter. If a prior restraint against discriminatory speech is permissible based upon some genetic criteria constitutionally, is it permissible based upon all such criteria? Should Congress choose to proscribe discrimination against crooked teeth, under the Meritor decision the EEOC would be permitted to prohibit verbal conduct of an orthodontial nature. Conversely, if a prohibition against the expression of genetically derogatory opinions that pertained to baldness, myopia, dwarfism and halitosis would be unconstitutional, how can a prohibition against the expression of genetically derogatory opinions that pertain to race, religion, gender, sexual orientation, and ethnicity be constitutional? Ultimately, if the Supreme Court permits a regulatory agency to interpret a legislative enactment in order to proscribe some forms of unpopular speech, can that agency proscribe every form of unpopular speech if it receives a Congressional mandate to do so? In other words, if the Supreme Court affirms the constitutionality of censoring old, discredited and repugnant ideologies, why should it not also affirm the constitutionality of censoring new, outrageous and tumultuous ones? 1984 may have passed us as a year on the calendar, but as a work of literature its sprit is alive and well in the principles espoused by the Meritor decision.

What Can We Do?

Congress could address this issue directly, thereby correcting the EEOC's expansive interpretation of Title VII and its erroneous definition of harassment. Regarding the former, a three-letter amendment to Title VII of the Civil Rights Act of 1964 would suffice. By adding the prefix "pre" to the word "conditions" found in the phrase "compensation, terms, [pre]conditions or privileges of employment," Congress could preclude the Commission's overzealous interpretation of its mandate and its ideological regulation of the workplace environment.

Second, Congress could draft a definitive, practical and constitutional law that proscribes discriminatory harassment within the workplace. It might enact legislation that not only includes severe criminal sanctions for workers who engage in discriminatory employment practices, but also protects the freedom of expression within the workplace. This law could:

Explicitly define discriminatory prurient physical contact as criminal assault and prescribe a punishment that is comparable to any other form of criminal assault.

Explicitly define discriminatory "quid pro quo" offers of favors or punishments in exchange for any sexual act or conduct as bribery or extortion and prescribe a punishment that is comparable to any other form of bribery or extortion.

Explicitly define discriminatory harassment as psychological assault, stipulate that it must include behavior or threats of behavior that resulted in substantial psychological injuries, and prescribe a punishment that is comparable to physical assault that resulted in bodily injuries.

Explicitly define the expression of derogatory thoughts and opinions that causes tangible, severe, prolonged and intolerable mental anguish and suffering to a normal person as verbal torture, and prescribe a punishment that is comparable to physical torture.

Explicitly define any organization whose officers are convicted of engaging in any of the discriminatory acts described previously as a criminal organization or racket and prescribe a punishment that is comparable to any other criminal organization or racket.

Federal law should not proscribe the expression of discriminatory thoughts and opinions, regardless of either the nature of the speaker's employment or the nature of the thoughts and opinions being expressed. The status of an individual's employment may necessitate the abrogation of certain legal privileges, but it should not abrogate constitutionally protected rights. The ability to express oneself, unconstrained by governmental interference, should be included among these rights unless that speech has induced or elicited the commission of some sort of crime, such as the crime of illegal discrimination, or has inflicted a perceptible and debilitating psychological injury upon a normal person.

In 1919 Supreme Court Justice Oliver Wendell Holmes, Jr. 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."¹⁷

It is sadly ironic that the same Court from whom these words were written now sanctions a de facto witch-hunt for ethnic and religious chauvinists, racists, misogynists, and homophobes within the marketplace itself. The vast majority of Americans rejects these social philosophies as patently ridiculous and finds their espousal to be utterly abhorrent 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. As Justice Louis Brandeis wrote,

"Fear of serious injury cannot alone justify the suppression of free speech.... Men feared witches and burned women.... Those who won our independence ... were not cowards. They did not fear political change. They did not exalt order at the cost of liberty.... If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence. Only an emergency can justify repression. Such must be the rule if authority is to be reconciled with freedom."¹⁸

1http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=249&invol=47

2http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=385&invol=589

3http://www.eeoc.gov/policy/vii.html

4http://www4.law.cornell.edu/uscode/29/158.html

5http://www4.law.cornell.edu/uscode/11/328.html

6http://www.eeoc.gov/facts/fs-sex.html

7http://www4.law.cornell.edu/uscode/18/2261A.html

8http://www4.law.cornell.edu/uscode/18/1514.html

9http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=342&invol=485

10http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=372&invol=58

11http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=477&invol=57

12 Ibid.

13 Ibid.

14http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=250&invol=616

15http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=302&invol=319

16http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=505&invol=377

17http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=250&invol=616

18http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=274&invol=357