A National Speech
Code From The EEOC
UCLA Law School
Reprinted with Permission
(This article has also appeared in the following: in
the Washington Post, Aug. 22, 1997, at A23; also reprinted as Bureaucrats
Trying to Halt Free Speech at Workplace Door in the Rocky Mountain News (Denver), Aug.
31, 1997 at 4B; and as A National Speech Code Courtesy of the EEOC, Chicago
Tribune, Sept. 14, 1997, at 21.)
Telling "ebonics" jokes, the federal government says, is unlawful. Yes, that's
right. You may burn the American flag, advocate violent revolution, post indecent material
on the Internet, but "disseminating derogatory electronic messages regarding
`ebonics' " to your co-workers is against the law.
So says the Equal Employment Opportunity Commission, in a lawsuit filed in federal court
late last month. The EEOC is now trying to force the Federal Home Loan Mortgage Corp. to
"take prompt and effective remedial action to eradicate" such speech by its
Remarkably, the EEOC, aided by some courts and by state civil rights agencies, thinks it
can get away with this, and so far it has. Without much fanfare, the law of
"workplace harassment" has turned into a nationwide speech code.
Under this speech code, it's illegal to say things that are "severe or
pervasive" enough to create a "hostile or offensive work environment" --
whatever that is -- based on race, religion, sex, national origin, veteran status and an
ever-widening list of other attributes.
Here is a brief catalogue of some of what's been described by various agencies and courts
Co-workers' use of "draftsman" and "foreman" (instead of
"draftsperson" and "foreperson"). "Men Working" signs.
Sexually suggestive jokes, even ones that aren't misogynistic. Derogatory pictures of the
Ayatollah Khomeini and American flags burning in Iran. In the words of one court's
injunction: remarks "contrary to your fellow employees' religious beliefs."
"Offensive speech implicating considerations of race."
What could the government possibly be thinking about here? The Supreme Court has never
suggested that the workplace is somehow a First Amendment-free zone. Many of us talk to
more people at work than we do anywhere else. The workplace is where we often discuss the
questions of the day, whether they be the Oakland School Board's ebonics policy or
affirmative action or religion.
Private employers, like private newspaper publishers or private homeowners, are not bound
by the First Amendment and may thus restrict what is said on their property. But the
United States government, which is under a constitutional obligation not to abridge
"the freedom of speech," can't go to court to insist on the
"eradication" of political speech that it thinks is reprehensible.
Of course, many harassment cases involve more than just impolitic jokes. The ebonics case,
for instance, also involved some threats, which are constitutionally unprotected, and some
one-to-one insults, which might also be properly punishable. If the EEOC had just sued
over this conduct, there would be little constitutional difficulty. But the EEOC has no
business claiming that toleration of e-mailed political opinion is "an unlawful
Why have the free-speech implications here been so widely ignored? Hard to say. Maybe
everyone was misled by the law's mushiness. It's always easier to build consensus behind
vague terms such as "hostile or offensive work environment," which can mean all
things to all people. I like to think that if the EEOC proposed a regulation that
explicitly barred ebonics jokes, someone would have made a fuss.
But the breadth of harassment law has now become pretty clear. The federal government
seems to think it's entitled to control what we say in our workplaces so long as a
"reasonable person" would find that our speech makes the environment
"hostile or offensive." Pretty remarkable how far we've let things come.
About the Author: Eugene
Volokh teaches constitutional law at UCLA Law School. He's written five law review
articles about free speech and workplace harassment law, which have been cited in 10 court
decisions and 70 law review articles. He has been cited or quoted on this subject in the
New York Times, The New Republic, U.S. News & World Report, Harper's Magazine, the
Chicago Tribune, Forbes, and many other publications.
He is also the author of many other
scholarly articles on constitutional law and other legal topics, which have appeared in
the Yale Law Journal, the Harvard Law Review, the Stanford Law Review, the Supreme Court
Review, the NYU Law Review, the Pennsylvania Law Review, the Michigan Law Review, the UCLA
Law Review, and other publications. He clerked for Judge Alex Kozinski on the U.S. Court
of Appeals for the 9th Circuit, and for Justice Sandra Day O'Connor on the U.S. Supreme
He can be reached at:
UCLA Law School
405 Hilgard Ave.
Los Angeles, CA 90095
Prof. Volokh's Web Page at UCLA:
END of 'Ebonics' Controversy.