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Workplace harassment law is a speech curtailment of remarkable amplitude. It goes far beyond slanderous statements, pornography, and vulgar sexual premises. It can restrain, among other things, political assertions, religious endorsements, sexual anecdotes, and such kinds of verbal expressions that can be termed as constitutionally protected. This paper will provide a brief analysis of Eugene Volokh, What Speech Does “Hostile Work Environment” Harassment Law Restrict? 85 Geo. L.J. 627 (1997), detailing aspects such as Political, Artistic, Religious, and Social approaches towards “Harassment”; how the law’s vagueness elevates the breadth of “Harassment”; and the Law’s ramifications on individual utterances.
Harassment in the political, artistic, religious and social outlooks can be deemed as workplace aggravation if it’s severe or extensive enough to generate a hostile or disparaging work ecosystem. The annoyance will be subjected to a penalty if based on racial creed, divinity, sex, national origin or age. The same is true if a disability issue, military membership or veteran status, sexual alignment, marital status, transsexualism, political amalgamation, criminal history, prior psychiatric record, occupation, citizenship status, personal appearance, receipt of public relief, among others. Note that the definition does not necessitate that the articulation consists of debauchery or fighting words or intimidation or other legally unprotected assertions, neither does it demand that the speech be profanity or eroticism. The judge or jury must conclude not only that the address was offensive, based on race, religion, sex, or some other attribute, but also that it was either “severe” or “pervasive” enough to create a hostile or abusive environment for the plaintiff. And if the outcome is an odd judicial misapplications or an exception[s] to the dictate that should be shrugged off in determining the rule’s actual scope, it could only be because the speech in those cases didn’t meet the severity or pervasiveness thresholds.
Often times, the law’s vagueness increases its breadth. This is because the words “severe”, “pervasive”, “hostile”, and “abusive”, are sometimes vague and immeasurable. Thus “We won’t know until it gets to court” situation arises. Harassment law, like many other laws, is underenforced as well as overenforced. Many employers, because of ignorance or bigotry or whatever else, ignore the risk of liability and don’t suppress speech or conduct that should be restricted. Some fact-finders (judge or jury) impose reasonably sparse thresholds of severity or pervasiveness, even as others are commanding higher ones. As a cure, the law may pose First Amendment problems notwithstanding whether it was underenforced in other situations.
On the law’s effect on individual assertions, we find that there is inevitable necessity to quell these statements. An antagonistic atmosphere can be formed by many different employees, each making only one or several aggressive remarks. Individually, the comments might not be “severe or pervasive” enough to create liability, but in the aggregate, they may be actionable. Thus many employment specialists are recommending that employers stifle individual instances of offensive speech. (Avoid Costly Lawsuits for Sexual Harassment).
According to the EEOCC, while some incidents of harassment commonly do not infringe the federal law, a pattern of such occurrences may be unlawful. Therefore, to fulfill its duty of preventive care, the business must make clear to employees that it will arrest harassment before it rises to the level of a contravention of federal law.
In conclusion, the scope of harassment law is thus guided by three facts, and namely: harassment law does not distinguish slurs, pornography, administrative, religious, or social explication, jokes, art, and other makes of speech. Secondly, the ambiguity of the terms “severe” and “pervasive” means that the law may practically restrict any speech that an employer concludes might be found by a fact-finder to be severe or pervasive enough. Finally, because an employer is liable for the aggregate of all its employees’ speech, wise employers will bar any statement that might, if repeated by enough people, be “severe or pervasive” enough to create a hostile environment.
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