How Free Is Speech at Work
Mary E. Becker · bepress Legal Repository · 1996
INTRODUcTION©Free speech challenges to Title VII regulation are a recent development although Title VII of the Civil Rights Act of 1964, banning discrimination on the basis of sex in employment, has been on the books for over two decades and charges involving harassing speech have been recognized for decades.Only a few lower courts have considered such challenges to date.In this Article, I do assume that Title VII's prohibition of racial and sexual harassment does raise First Amendment concerns.The initial question, as always under the First Amendment, is which set of cases is applicable.If the cases setting standards for general governmental regulation of speech on the basis of content are applicable, then the Free Speech Clause likely places severe limits on the scope of Title VII's ban on sexually harassing speech at work.Thus, if the fighting words doctrine and similar stringent limitations on speech regulation apply, the permissible scope of Title VII regulation is likely to be exceedingly narrow.There are, however, many First Amendment doctrines and cases far more tolerant of restrictions on speech.