The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent


Marquette University tells employees: "Opposition to same-sex marriage" could be "unlawful harassment"


Marquette's suspension of a professor—apparently for criticizing an instructor who seemingly refused to allow discussion of anti-gay views in her philosophy of ethics class—reminds me about the Marquette "unlawful harassment" training, which I'd been meaning to blog about.

Some months ago, Marquette conducted training on "Unlawful Harassment Prevention for Higher Ed Faculty and Graduate Assistants." As usual, the training involved some specific vignettes, with questions and answers. I have copies of the screenshots from one of the vignettes, and here are some excerpts (this John McAdams (Marquette Warrior) post also has more):

All week, Becky and Maria have been talking about their opposition to same-sex marriage….

Their coworker Hans is offended ….

Even though Becky and Maria were only expressing their opinions and didn't mean to offend, they could still be engaging in harassment. The complainant does not need to be involved in the conversation to be offended….

Liability Avoidance Tip[:] Although employees have free speech rights under the United States Constitution, in academic and other workplaces those rights are limited when they infringe upon another person's right to work in an environment free of unlawful harassment….

Practical Points[:] Having good intentions does not necessarily prevent liability for unlawful harassment.

Unfortunately, given that Wisconsin law bans sexual orientation discrimination, and that discrimination laws have been read as banning "hostile environment harassment"—including political and social commentary that offends people based on race, religion, sex and (in those states that cover this) sexual orientation discrimination—there is indeed a risk that such speech by co-workers would be found to be unlawful. But this risk is far from a certainty, and there are indeed cases (e.g., this one) stating that the First Amendment forbids legal liability for this sort of political or social commentary overheard by offended co-workers. (The First Amendment, of course, doesn't itself bar private employers from restricting employee speech, but it would indeed bar legal liability that pressures employers to restrict such speech.)

Universities, it seems to me, shouldn't just take the most liability-avoiding, speech-restrictive position in such situations—if they want to continue being taken seriously as places where people are free to investigate, debate and challenge orthodox views. A professor at Marquette (not Prof. McAdams) tells me: "[T]he new harassment training, which McAdams mentions on his blog and which we as faculty all had to go through this fall, has a chilling quality to it, … then basically urging people, when in doubt, to refrain from expression." A sad thing to see at a university.