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Copyright The Regents of the University of California, 1992.

UCLA Law Review

COMMENT: FREEDOM OF SPEECH AND WORKPLACE HARASSMENT.

AUGUST, 1992

39 UCLA L. Rev. 1791

Author

Eugene Volokh *

Excerpt

INTRODUCTION

In essence, while Title VII does not require an employer to fire all 'Archie Bunkers' in its employ, the law does require that an employer take prompt action to prevent such bigots from expressing their opinions in a way that abuses or offends their co-workers. By informing people that the expression of racist or sexist attitudes in public is unacceptable, people may eventually learn that such views are undesirable in private, as well. Thus, Title VII may advance the goal of eliminating prejudices and biases in our society. 1

Said about almost any other variety of opinion, this statement -- by a federal appeals court -- would be a civil libertarian's nightmare. Imagine a law requiring that "an employer take prompt action to prevent [Communists] from expressing their opinions in a way that abuses or offends their co-workers," or a law that, "by informing people that the expression of [unpatriotic] attitudes in public is unacceptable" will eventually teach them "that such views are undesirable in private, as well." Most would agree that such a law would raise grave First Amendment concerns, even if applied only to speech in the workplace.

But harassment law -- the body of law under Title VII 2 and related state statutes that govern harassing speech in the workplace 3 -- has faced remarkably few First Amendment challenges. Few courts applying harassment law even discuss free speech issues, and many commentators have almost taken the constitutionality of harassment law for granted. 4 In part ...
 
 
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