“[H]ostile environment harassment claims aren’t always (or even usually) this easy to win,” but the governing law is inherently vague — asking courts and commissions to define what’s “severe” or “pervasive,” and requiring that they consider claims from the standpoint of a “reasonable person in [the] complainant’s circumstances.”
So, what do human-resources directors do? Faced with uncertainty, they retreat to a position far short of the legal line. They crack down even more on employee interactions. In other words, one small act of government censorship in one small case metastasizes through the system — leading private and public employees to engage in even more acts of censorship to avoid even a whiff of impropriety or illegality.
This is how free speech slowly but surely dies. It’s not just the finding that the supervisor’s single jokey e-mail was unlawful harassment. It’s not just the inevitable overreaction in HR departments across the land. It’s in the slow and corrosive erosion of our free-speech culture, where an entire society is taught that free speech ends exactly when personal offense begins.
The result is a world like many Americans live in today, where they keep their mouths shut at work, they keep a tight rein on their social-media feeds, and they confine their true opinions to the most private forms of communication. This culture isn’t everywhere, of course, but ask conservative employees in entire areas of public- and private-sector employment if they’re as free to speak as their progressive colleagues, and the answer is a resounding “No.”
How free are they to disagree with their diversity trainer? Can they argue against same-sex marriage with the same vehemence that their colleagues ask for “marriage equality”? Are they as free to discuss, say, the border wall or Trump’s executive order on immigration as their progressive friends? One thing I can say for certain, I have conservative friends who are afraid to test the proposition. They have mortgages to pay.