The Expressive Workplace Doctrine: Protecting the Public Discourse from Hostile Work Environment Actions

Abstract

This paper reviews the hostile work environment suits that have been filed in expressive workplaces: workplaces that create, distribute or facilitate expression that is protected by the First Amendment. It concludes that these cases pose a danger to the public discourse at large by chilling offensive speech dealing with race, sex, gender and religion. Next, it explains how the hostile work environment action violates the First Amendment when it is applied to expressive workplaces, noting how the action does not fall under any of the recognized exceptions to First Amendment protection. Finally, it proposes that expressive workplaces be given a limited exemption from hostile work environment suits, subject to reasonable accommodation.