On Wednesday, I discussed how the courts can be downright hostile to employers in sexual harassment cases, playing a game of bait-and-switch regarding whether sexual harassment is "intentional," in order to first make it easier to hold them liable and then maximize the damages that plaintiffs can collect. (Earlier, I discussed judicial double standards in harassment cases and judges' indulgence towards plaintiffs' lawyers who seek to inflame juries with prejudicial appeals, and noted that harassment law is being used by courts to restrict a wide array of once protected speech.)
Although the language of the civil rights laws, such as 42 USC 1981a, clearly requires a harassment plaintiff to show discriminatory intent to recover damages, court sometimes do just the opposite. For example, the Seventh Circuit recently insisted that no discriminatory intent need be shown in a harassment case, yet simultaneously claimed that harassment is "intentional" because it is tort-like in nature in Huff v. Sheehan, 493 F.3d 893, 902-04 (2007).
But "sexual harassment" under federal case law is a term of art referring to whatever speech or conduct gives rise to a specified state -- a "hostile work environment" -- not to "harassment" as defined in the dictionary, or anything closely resembling a traditional tort, like a pattern of invasive conduct by one individual towards another. To be sure, a hostile environment can be created by one malicious individual repeatedly pestering a plaintiff. But it can also (if discriminatory intent is not required) be created gradually by many different people each individually making just one offensive statement within earshot of the plaintiff, if their statements cumulatively add up to a hostile environment over time, even if they harbored no ill-will or discriminatory animus towards the plaintiff. The result, as UCLA Law Professor Eugene Volokh notes, is to effectively force employers to suppress a vast array of otherwise-protected speech.
To be sure, there are other elements of a harassment claim, like the requirement that the plaintiff show that the conduct complained of is "unwelcome" and occurred "based on sex." But the very courts that claim that harassment is "intentional" in the tort-like sense often have gutted these other elements, so that they frequently add nothing relevant to the requirement of a "hostile work environment."
For example, people have responded to my argument that a harassment plaintiff must show discriminatory intent by noting that harassment is only actionable if it is "unwelcome," and suggesting that the fact that harassment is "unwelcome" somehow makes it intentional even absent discriminatory motivation or targeting of the plaintiff. See Meritor Savings Bank v. Vinson, 477 U.S. 57, 68 (1986) (the essence of "any sexual harassment claim is that" the conduct was "unwelcome").
But the courts that don't enforce the requirement of discriminatory intent also typically interpret "unwelcomeness" so broadly as to make it meaningless as a limit on harassment claims. They assume that harassment is "unwelcome" whenever a plaintiff is subjectively offended by it, even if the defendant had no way of knowing that, or even if the plaintiff used language similar to the defendant, which could have led the defendant to believe that the language was permissible. See, e.g., Galloway v. General Motors, 78 F.3d 1164 (7th Cir. 1996) (dictum); Gary v. Tyson Foods (W.D. Mo. 1999); Nuri v. PRC (M.D. Ala. 1998). This matters because, as Fifth Circuit Judge Edith Jones has observed, a common fact pattern in harassment cases is a plaintiff who sues over comments similar to those she herself has frequently made.
Defined purely subjectively, "welcomeness" thus adds nothing to the separate legal requirement that the plaintiff's work environment be "subjectively hostile." See, e.g. Harris v. Forklift Systems, 510 U.S. 17, 21-22 (1993); Mendoza v. Borden, 195 F.3d 1238, 1245-1246 (11th Cir. 1999). That violates the principle of tort law that one element of a tort should not be read as being duplicated, or subsumed by, another element of the tort.
Originally, of course, courts interpreted unwelcomeness as having an objective component, so that a plaintiff who incited a defendant to say offensive things by saying similarly offensive things of her own could not sue based on them. Thus, it served a notice function that protected some speech. See, e.g., Brief of Center for Individual Rights and Boston Coalition for Freedom of Expression as Amici Curiae in Support of the Petition for Certiorari in Avis Rent A Car System v. Aguilar, 529 U.S. 1138 (2000) (citing cases where courts and the EEOC interpreted "unwelcome" as having an objective component); Henson v. Dundee, 682 F.2d 897, 903 (11th Cir. 1982) (early harassment case stated that to show unwelcomeness, plaintiff must show that she neither "solicited nor incited" the conduct and that she "regarded the conduct as undesirable or offensive").
And some federal appeals courts, like the Eighth Circuit, continue to follow this rule, barring plaintiffs from hypocritically suing the employer for comments made by their co-workers that are similar to those made by the plaintiffs themselves, under the theory that they have objectively welcomed such comments. See, e.g., Scusa v. Nestle U.S.A., Inc., 181 F.3d 958 (8th Cir. 1998); Hocevar v. Purdue Frederick Co., 223 F.3d 721, 737 (8th Cir. 2000).
But many courts (especially state courts) do not, viewing the requirement as unfashionable. By interpreting "unwelcomess" as purely subjective, they have effectively dispensed with any notice to the accused, who is now deemed a harasser if his speech unintentionally creates a hostile environment.
What is a "hostile environment" is a very vague notion, as a court noted in Pasqua v. Metropolitan Life Ins. Co, 101 F.3d 514 (7th Cir. 1996). Indeed, a Maryland civil rights agency warned that "the legal boundaries" of what is actionable "are so poorly marked," that "the best course of action is to avoid" any potentially offensive remarks. Reflecting the ambiguity, federal appeals courts differ greatly among themselves as to what conduct they believe is severe or pervasive enough to create a hostile environment. Within the same district, different juries often find starkly similar conduct to either not constitute harassment at all, or to be so patently and egregiously harassing as to warrant punitive damages.
When someone other than the courts is enforcing a ban on harassment, the courts immediately recognize the disturbing vagueness of the "hostile environment" concept. For example, the Ninth Circuit overturned a public college professor's discipline for unintentionally creating a hostile environment on vagueness grounds in Cohen v. San Bernardino Valley College, 92 F.3d 968 (9th Cir. 1996). And the Oregon Supreme Court, on state constitutional grounds, overturned a civil-rights agency's fine on an evangelical Christian employer for unknowingly creating a hostile work environment through religious proselytizing in Meltebeke v. Bureau of Labor and Industries, 903 P.2d 351, 363 (Or. 1995), even though it found that the conduct indeed violated the agency's hostile-environment harassment rule, because ignoring the employer's intentions would have a chilling effect on freedom of religion. And in Dambrot v. Central Michigan University, 55 F.3d 1177 (6th Cir. 1995), the court struck down a college's hostile environment harassment code as unconstitutionally vague, since whether the code was violated turned partly on the subjective reactions of listeners.
But the courts are blind to the vagueness of the "hostile work environment" concept when they themselves apply harassment law through damages liability -- even though the First Amendment vagueness doctrine applies to civil as well as criminal liability, see Bullfrog Films v. Wick, 847 F.2d 502 (9th Cir. 1998), and the Supreme Court has long recognized that the "fear of damage awards" in a lawsuit can chill speech even more than "the fear of prosecution." See New York Times v. Sullivan, 376 U.S. 264, 277 (1964).