Speech at Work

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6 Responses

  1. DevinB says:

    Perhaps the Justice is worried about broadening (diluting) the definition to such an extent that a worker who has been validly fired can file a retaliation claim based on the fact that they had at one point spoken about a workplace bias.

    I am not for any kind of workplace bias, nor would I consider it acceptable that a worker be fired FOR discussing opposition to their employer. However, the fact that they have discussed opposition to their employer unbidden in casual conversation does not thereafter protect them from being fired.

  2. Helen Norton says:

    I agree that the worker must prove the causal connection between her oppositional speech and any adverse employment action she experiences — i.e., that she was demoted or transferred because of her dissent rather than for her poor performance, personality shortfalls, or any other (lawful) basis. The causation element turns out to be a significant hurdle for many plaintiffs in retaliation and other cases (e.g., First Amendment cases where public employees must prove a causal connection between their protected speech and their government employer’s punitive action).

  3. JP says:

    I think Alito and Thomas very much have in mind the expense of litigation. Expanding the definition of protected activity to anyone who has non-constructively complained gives a valid cause of action to nearly everyone. (Who hasn’t complained that a supervisor treated them “unfairly?”).

    Sure, the non-meritorious claims will fail absent proof of causation, but that happens after hundreds of thousands of dollars have been spent on litigation. (More likely, these cases will settle for nuisance value early on–thus encouraging more frivolous litigation.)

    Also, it is the employer’s responsibility to “identify, address, and deter discriminatory behavior.” Title VII provides employees significant protection when complain, and Faragher/Ellerth creates a strong incentive for employers to react promptly and effectively. Limiting protected activity to “purposive conduct” should encourage employees to make constructive complaints, rather than simply engage in often-harmful watercooler gossip.

  4. A.W. says:


    Maybe the concern was to respect the view of some employers that there are proper channels for complaint and that should be respected. Its not my favorite management style, but it’s a common idea and it is a bit much to outlaw it, especially because the statute doesn’t clearly ban it.

    But personally on the topic I am more concerned about the severe chilling effect caused by harassment laws. Of course if a man says to a woman “sleep with me or you are fired” and even where an African American is subjected to images of black men hung in effigy, or something on that level. But when a man can be fired merely for slightly boorish behavior when reciting what happened on an episode of Seinfeld, we can be clear that we have gone too far the other way. The fact the man later won a wrongful dismissal suit only proves my point, because given that we are talking about chilling effects, look how fearful the company was of sexual harassment claims.


  5. Helen Norton says:

    Thanks for the thoughtful comments. While I understand the concerns about increased litigation and related expenses, I must confess that I don’t share them. A number of studies — including one earlier this year by Kevin Clermont and Stewart Schwab — confirm a significant drop in employment discrimination filings in recent years. Clermont and Schwab attribute this to the fact that plaintiffs’ success rate is so low. For similar reasons, I’m not persuaded that the prospect of harassment litigation chills workplace speech in a meaningful way: courts are very slow to find that alleged harassment is sufficiently “severe or pervasive to alter the terms and conditions of emloyment and create an abusive working environment” as required by Title VII.

  6. JP says:


    The recent drop in filings was, of course, preceded by a massive increase in filings through the 1990’s. Also, my tentative theory is that the case law fleshing out the reach of workplace discrimination law, and experiential data resulting from that earlier spike gave attorneys on both sides the ability to pretty accurately value a case very early on.

    A defense attorney can provide a client with a reasonable ballpark estimate of the cost-of-defense, liability exposure, and the probability of success on summary judgment and at trial based on an EEOC charge and preliminary investigation. As a result, a increasingly large number of claims are settled during the administrative stage.