In reaction to the hysteria following the Google Memo by James Damore, Walter Olson was one of the few who understood it as the normal, and inevitable, outcome of a regulatory mechanism that’s been in place for generations.
Because Google and Silicon Valley are cutting-edge workplaces, there’s a tendency to assume that the premise of the Google memo furor — “Your erroneous opinions are making my work environment hostile” — is somehow new as well.
But it isn’t the least bit new. The application of hostile work environment law to workplace speech — including basically political or ideological discussions, not just vulgar jokes or unwanted personal talk — goes back decades.
So how did no one notice this was happening for decades? Well, some did, like Walter and Jonathan Rauch.
Jonathan Rauch, for example, in the New Republic in 1997, wrote that “quietly, gradually, the workplace has become an exception” to the general rule that in America the law does not seek to restrain wrongful opinion and expression.
And Rauch explained the indirect mechanism by which this has come to pass: “What the government cannot do directly, it now requires employers to do in its stead: police ‘discriminatory’ speech.”
It didn’t start out that way. Title VII of the Civil Rights Act of 1964 prohibited discrimination against “on the basis of sex, race, color, national origin, and religion.” But what constitutes discrimination has morphed over time from refusing to hire an employee on prohibited bases to a workplace free from conduct that can characterized as discriminatory, which creates a “hostile work environment.”
Now, as then, government pressure on employers to ban speech consists less of direct you-must-ban mandates and more of litigation incentives whose contours are not explicitly announced.
Legal or HR departments will counsel an employer that allowing certain instances or categories of bad speech to go undisciplined might be an offense under Title VII anti-discrimination law, or evidence of one.
This can span use of offensive words to “inappropriate” jokes, to loose talk and, as the sense of what constitutes “harassment” changes with the tide of the sensitivity of the listener, or in Damore case, the reader, whatever they want it to be.
Some enforcement of these laws is done directly by federal agencies, but most of it takes the form of civil lawsuits by disgruntled workers or class action lawyers.
Litigation is costly and hazardous to employers. Companies will expend significant effort to avoid it or to reduce its risk.
Taking steps against tasteless cartoons, or loose talk, such as the discussion of whether there are any psychological or behavioral differences between the sexes in the now famous Google memo, is perceived as cheaper and safer than facing a lawsuit later.
The threat of a Title VII complaint, and its ensuing litigation with the EEOC, and subsequently in court, creates a compelling incentive for employers to silence their own employees, or shed themselves of employees who create a risk of litigation. To an employer, the value of any individual employee’s speech is far less than the value of avoiding regulatory sanctions and litigation.
What does an employer know about speech that will be determined to be “discriminatory” such that it creates a “hostile work environment”? It doesn’t matter. The answer won’t be had until after the EEOC makes its decision to sue or issue a right to sue letter, and a court rules. By then, the employer is up to its neck in a problem it doesn’t need.
Plus, if the allegations are made public as they often are, it’s a public relations fiasco that is hard to quell. Given the current environment, cries of hostile work environment are turned into a certainty well before any determination is made, as confirmation bias leads the public to believe that every claim must be true. What employer needs that? What’s to be gained by fighting for an employee’s right to speak, or keep a job, when the world of social justice has issued its verdict within seconds of the news breaking?
The initial response is that this is between a private employer and employee, so there are no First Amendment implications involved. But as Walter notes, that ignores the government thumb on the scale by the threat of Title VII and legal sanctions.
So as a way of evading responsibility system-wide it’s kind of brilliant. Those who write laws can blame private actors’ decisions. The private actors in turn can feel as if their hands were tied given the legal reality they might face.
Both sides get plausible deniability, but the outcome is exactly what the incentives demand. So why is this a problem, though, since the upshot is that it eradicates discrimination in the workplace, and certainly no one favors a hostile work environment, right?
But I’ll stop to make just one point: hostile-environment law is not content-neutral. It plays favorites on topics and it takes sides in debates.
By 1997, when I wrote my book, there were already dozens of reported cases in which liability claims cited anti-feminist statements, such as generalizations, stereotypes and loaded language about females.
The speech of this sort that got employers into legal hot water was “frequently not at all obscene but often highly political and analytic in content.”
What made Damore’s memo stand out wasn’t just that it was Google, long alleged to be a boy’s club, or the tech industry, that Nerd Kingdom of misogyny and sexual harassment. It’s that his ideas referred to “harmful stereotypes of women.” Ideas that are decidedly out of favor with feminists and their allies, but hardly calling women “bitches” or making lewd and lascivious remarks to co-workers.
So it’s not just that an employee can’t utter racist or sexist epithets, but that the line has slid down the social justice slope to expression of ideas which may be valid, or at least worthy of discussion, but disfavored by an identitarian group, Rather than confront ideas, Title VII compels the employer to silence his employees, to fire them if it gets bad enough, to assure that the government won’t drop the hammer.
It’s not that the First Amendment applies to private employers’ actions. It’s that a system incentivizes private employers to do the government’s bidding while the government can claim clean hands and the employer can point to the hammer hanging over its head. And the mob is pleased.