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Thursday, July 7, 2022

Does The First Amendment Mean Anti-Harassment Policies Are Illegal? Florida Court Says Yes

 In a what-the-frack moment, I took a look at what seems to be an opinion that has no relation to employment law, and realized that it has far-reaching implications. The 11th Circuit has ruled that the University of Central Florida's anti-harassment policy that applies to students violates the First Amendment.

Now, granted, as I've said before, the First Amendment only applies to governments. UCF is a government-run school. So this issue will only apply to governments. But it also seems to apply to anti-harassment policies that government employers might try to impose. And it might apply to other anti-harassment policies because of the way the Court analyzed the policy.

The issue was a student who wanted to say stuff like, "abortion is immoral," "government should not be able to force religious organizations to recognize marriages with whihc they disagree," "affirmative action is deeply unfair," and "a man cannot become a woman because he 'feels like one.'" The student said he was afraid to speak up because he might be disciplined under the university's discriminatory harassment policy, which prohibited harassment based on race, color, ethnicity, national origin, religion, non-religion, age, genetic information, sex, pregnancy, parental status, gender identity or expression, sexual orientation, marital status, disability, political affiliation, or veteran's status. 

The Court said that this policy violates the First Amendment because it is content-based, in that the "University must 'examine the content of the message that is conveyed to determine whether' it harasses another student 'based upon' any of a long list of characteristics." They said that, because it is content-based, it is subject to strict scrutiny, and that the policy is very broad. For instance, the Court points to language in the policy that says it's prohibited if the conduct "may be humiliating." 

They also said the policy is illegal because it discriminates on the basis of viewpoint, because it only prohibits speech that is discriminatory.

Well, duh. Of course an anti-harassment policy prohibits speech that is discriminatory. And for a court to say governments can't bar discriminatory speech opens up a can of worms for employment lawyers. Can a government discipline an employee who walks up to a Black coworker and says, "In my opinion, Black people should go back to being slaves," or who walks up to a pregnant coworker and says, "You shouldn't be allowed to work while you're pregnant or have children"? What if the person who says these things is a supervisor? 

So I say again, what the frack? If anti-harassment policies are going to be invalidated because they require employers to actually analyze what was said and whether it is discriminatory, then how can there ever be valid anti-harassment policies in government? And once the courts start saying viewpoint discrimination is illegal, then all bad actors have to do is phrase their discriminatory comments in the form of an opinion.

Will employment law be like Jeopardy? You only lose if you fail to phrase your statement in the form of an opinion?

If anyone can explain why this opinion isn't beyond outrageous, I'd love to hear from you.

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I appreciate your comments and general questions but this isn't the place to ask confidential legal questions. If you need an employee-side employment lawyer, try http://exchange.nela.org/findalawyer to locate one in your state.