Free Speech at Work: Verbal Harassment as Discriminatory (Mis)Treatment

Abstract

In his reply to my article on workplace harassment law and freedom of speech, Professor Volokh does not respond to my most important critiques of his earlier work. For example, he fails to grapple with the true complexity of the problem by focusing exclusively on one side of this conflict of rights ― the burden that the law imposes on workplace expression. Equal attention must be paid to the other side: the harm inflicted by discriminatory speech on employees of a single gender. As I describe in detail in my original piece, these harms may include: an adverse effect on the quantity and quality of a woman's work; emotional and physical stress-related problems such as fear, anxiety, depression, humiliation, nausea, fatigue, and headaches; and costs to the government of over $130 million a year due to decreased worker productivity, sick leave awards, and replacement of employees who leave their jobs because of sexual harassment.