Government sues to "eradicate" ebonics joke e-mail at FreddieMac

[Robert Hettinga <rah@shipwright.com>]

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Date:         Fri, 22 Aug 1997 10:35:52 PST
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From:         Eugene Volokh <VOLOKH@LAW.UCLA.EDU>
Organization: UCLA School of Law
Subject:      Government sues to "eradicate" ebonics joke e-mail at FreddieMac
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  (Please feel free to forward; copying authorized by copyright owner)

                A National Speech Code From The EEOC

                         by Eugene Volokh

               Washington Post, Aug. 22, 1997, at A23


    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 workers.

    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 as "harassment":

    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 employment practice."

    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.

    [The writer teaches free-speech law at UCLA.]

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Robert Hettinga (rah@shipwright.com), Philodox
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