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The next big legal battle on sexual harassment will probably center on free-speech concerns. UCLA's Volokh says liberal court rulings have had a "chilling effect" on free speech at work. He says many employers are scared to write anything other than zero-tolerance policies that prohibit any potentially offensive speech. "Something like 'Women don't belong here,' that's sexist, but it should be protected speech," Volokh says. Few defendants have used the First Amendment as a defense. ("Lawyers just don't think about it," Volokh adds.) As sexual-harassment laws strike further and further into what we are allowed to say to our co-workers, look for that to change.
Of course, some contend that giving up our right to tell dirty jokes is a small price to pay to prevent harassment. Georgetown's Epstein argues, "I think that one has to balance your concern for the First Amendment with your concern for equality." Maybe. But because so many of us spend more time at work than at home, today's co-workers are the neighbors and bowling-league partners of yesteryear. It's difficult to imagine that we can't talk to them about sexual topics--not just our personal lives but Monica and Bill, the teacher and her 13-year-old student lover, or Marv Albert and his dating habits.
Before this term, the high court had issued just two major decisions on workplace sexual harassment. This term it has four cases, one of which it decided this month: it broadened sexual harassment to include same-sex cases. The three other rulings, expected before July, won't address the First Amendment, but they should end some other disputes over the law. In two of the cases--both scheduled for oral argument this week--the court will determine to what extent employers are liable for harassment to which top management has not been explicitly alerted. In the absence of such a ruling, many companies have assumed they are liable for just about anything and adopted zero-tolerance policies for everyone from the janitor to the CEO.
In one of the two cases, the court will decide whether to hold a Texas school district responsible for the actions of teacher Frank Waldrop. According to court documents, a cop discovered Waldrop having sex with an eighth-grader, who later claimed that the couple had had sex regularly. Her mother sued the school system, even though no school-district employees (except Waldrop, of course) knew about the affair. She argued that the district was liable anyway, on the theory that employers are responsible for an employee's bad acts if his employment status helped the employee commit them.
The other case, Faragher v. City of Boca Raton, involves two municipal lifeguards in the town north of Miami who claimed that they were sexually harassed by their supervisors. A judge found that they had been harassed but that the city should not be held responsible because no officials in city hall knew about the abuse.