Thursday, November 15, 2007

How To ENDA Free Speech

No, this isn't a joke with Italian accent. Hans Bader over at points out that the sexual orientation non-discrimination bill, even while not directly a suppression of free speech bill, has that potential because of the mixed and confused state of current jurisprudence:
While well-intended, it could lead to very costly lawsuits against employers for things their employees say, even if the employer itself has no discriminatory bias.
The bill would have little impact on most firms’ hiring decisions, since companies typically do not hire based on sexual orientation (although the military and churches, which are exempt from ENDA, sometimes do).

It would have a much larger impact on employees and workplace speech, however, since the bill regulates not just hiring and firing, but also “terms, conditions, or privileges of employment.” In Meritor Savings Bank v. Vinson (1986), the Supreme Court interpreted the same vague language in another statute, Title VII of the Civil Rights Act, as requiring employers to prohibit employee speech or conduct that creates a “hostile or offensive work environment” for women, blacks, or religious minorities. The employer becomes liable for damages and attorneys fees if a court decides that it was negligent in failing to detect, prevent, or punish such speech or conduct. ENDA could thus lead to employers being sued for “sexual orientation harassment” over employee speech, even speech they disagreed with.
Some supporters of ENDA hope to use it to squelch viewpoints that offend them. For example, a detractor of the New York Post, who dislikes its coverage of gay celebrities and public figures, hopes that the Post’s gay employees will sue the newspaper if ENDA passes, under the theory that its content creates a hostile work environment for gay employees. In Seattle, a city human rights commission official suggested that complainant John Dill might have had a valid sexual-orientation harassment claim based on allegations that a co-worker listened to conservative talk radio shows and posted a letter from a Congresswoman skeptical of repealing the military’s ban on gays.
Look: if there are already people talking about using ENDA or similar state laws to shut up other employees, this should worry you. While Bader points out that many of these secondhand bias claims don't survive in the courts, some of them do:
But First Amendment defenses over non-job-related speech are usually rejected, and some court decisions, such as Stair v. Lehigh Valley Carpenters, have ruled that a harassing work environment can be created solely by speech not even aimed at the complainant, such as swimsuit calendars, and that speech that creates a hostile work environment automatically loses its protection under the First Amendment.
How these cases would apply to a Christian bookstore (which is apparently not exempt from ENDA) is unclear. Working in a fire-and-brimstone conservative Christian bookstore might be said to be a “hostile or offensive environment” for a gay or lesbian employee, but the contents of the bookstore ought nonetheless to be protected by the First Amendment. The entire purpose of the First Amendment is to protect speech that is so offensive that it risks being suppressed.
It is entirely possible that the courts will reject attempts to use ENDA as a tool of censorship. But the prospect of such suits is likely to make employers increasingly willing to tell employees to shut up (even over lunch) or to mandate sensitivity training programs that should make you worried. Especially because a previous post by Bader points to this worrisome issue:
Moreover, ENDA may lead to employers settling even weak or dubious discrimination claims, especially those alleging wrongful termination or harassment, since ENDA incorporates the Christiansburg Garment standard for awarding attorneys fees — a sort of “heads I win, tails you lose” scheme under which the plaintiff gets his attorneys fees paid for by the other side if he wins, but the employer has to pay its own attorneys fees even if it wins (a win at trial typically costs an employer at least $250,000).
If you know that you are going to have to pay your legal costs even if you win, the incentive to either settle out of court for less than the likely legal fees--or worse, create a code of employee conduct designed to shut people up--is very strong. Think about it for a minute or two, and you will realize that a code of employee conduct that says that you may not ever express disapproval of homosexuality, even away from work, provides a basis for firing someone--and on what basis can they file suit?

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