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Free Speech Case Can Be Title VII Lesson for Employers

A university is supposed to be a marketplace of free ideas. But Christian DeJohn, a graduate student at Temple University in Philadelphia, said the university's sexual harassment policy violated his free speech rights--and the
3rd Circuit agreed. In a decision free speech advocates are hailing, the appeals court found that Temple's former policy was overbroad and prohibited speech that the First Amendment protects.

Temple's policy stated that "all forms of sexual harassment are prohibited, including ... expressive, visual, or physical conduct of a sexual or gender-motivated nature when ... such conduct has the purpose or effect of unreasonably interfering with an individual's work, educational performance, or status, or such conduct has the purpose or effect of creating an intimidating, hostile, or offensive environment."

In his suit, DeJohn called the policy vague and overbroad, stating it stifled the speech of students who held religious and conservative views. While he cited no specific incident, DeJohn, a sergeant in the Pennsylvania Army National Guard, stated he felt inhibited when expressing his opinions in class concerning women in combat and women in the military.

In April 2007, the District Court for the Eastern District of Pennsylvania found in favor of DeJohn, awarding him $1 in nominal damages and enjoining Temple from enforcing its sexual harassment policy. Temple appealed after amending its policy to eliminate the overbroad language. The university asked the 3rd Circuit to dismiss the case, arguing the issue was moot.

In August, the 3rd Circuit upheld the lower court's decision. The unanimous three-judge appellate panel found that because Temple had defended its policy in court for more than a year before it amended it--and had continued to defend the old policy after making changes--there was no guarantee the university would not reinstitute it later.

Circuit Judge D. Brooks Smith wrote in his 38-page opinion that Temple's policy was unconstitutionally overbroad because it threatened to punish not only speech that actually interfered with other students' work, but also speech that was intended to do so.

Smith also found that the university's use of the terms "hostile," "offensive" and "gender-motivated" made the policy so broad that it could be applied to cover any gender-related speech that offended someone. "This could include 'core' political and religious speech, such as gender politics and sexual morality," Smith wrote.

Unfriendly Claim
While the decision in DeJohn v. Temple University will cause university counsel to re-evaluate their sexual harassment policies, it has little direct application in the private employment sector, even though Temple's policy was similar to many implemented by private employers. That's because private employers may adopt policies that restrict what employees say in the workplace, and such policies cannot be challenged under the
First Amendment.

However, there is still precedent for free speech issues to arise in private employment sexual harassment cases.

In Lyle v. Warner Brothers Television Productions, a writer's assistant on the television show Friends filed a sexual harassment claim against Warner Brothers and the show's writers based on sexually explicit language the writers used while writing the show, even though the statements were not directed at her.

The California Supreme Court ruled in 2006 that the plaintiff failed to make a prima facie case that the Friends'
writers' sexual banter created a hostile work environment and added that any liability in this case would have violated the First Amendment rights of the defendants, who were involved in the creative process of creating protected speech.

"Employers need to be aware of their environment, they need to be aware of employees rights to be free from harassing and inappropriate conduct, and they need to be aware that if what they do as part of their business entails utilization of certain language, then their employees have to be apprised of it," says Helene Wasserman,
a shareholder at Littler Mendelson.

Conflicting Rights
More frequently, free speech issues arise in the workplace when employees seek to exercise their Title VII protection against religious discrimination by expressing religious views to co-workers.

Stephen Sheinfeld, a partner at Winston & Strawn, says this comes up in the private employment sector when dealing with religion, in terms of what the limits are of what people can say and do. "[This includes] the conflicts that arise in the workplace between an individual's right to express him or herself and their religious beliefs and the rights of others to be free from hearing those views or being affected by those views or conduct," he says.

Sheinfeld noted that on July 22 the EEOC adopted compliance guidance on religious bias providing instructions for investigating and analyzing alleged religion-based discrimination.

According to the EEOC, the guidance was issued because of the increase in questions about religion in the workplace as religious pluralism has increased. The EEOC reports the number of religious discrimination charges filed with EEOC has more than doubled from 1992 to 2007.

So to the extent that Temple underscores the importance of employer vigilance to the sometimes delicate task of protecting employee rights, it resonates beyond the realm of higher education.

"Temple highlights the intersection of rights of religion and free speech and the rights of the workplace to be free of those things," Sheinfeld says.

Managing Editor

Yesenia Salcedo

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