The Volokh Conspiracy

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Free Speech

New Jersey Attorney General: Employers May Have to Restrict Employees' Saying "Chinese Virus"


From a document just released by New Jersey Division on Civil Rights, endorsed by N.J. Attorney General Gurbir S. Grewal: (emphasis added):

What are the LAD's [New Jersey Law Against Discrimination's] protections related to COVID-19 in employment?

An employer cannot discriminate against you because of your actual or perceived race, national origin, religion, disability, or other LAD-protected characteristic. The LAD also prohibits bias-based harassment that creates a hostile work environment. Your employer must take reasonable steps to stop the harassment if they knew or should have known about it, regardless of whether the harasser is a coworker or supervisor.

These protections apply even if the conduct at issue stems from concerns related to COVID-19. So, for example, your employer cannot fire you because you coughed at work and they perceived you to have a disability related to COVID-19. And if you have east-Asian heritage and a coworker repeatedly harasses you by claiming that Asian people caused COVID-19 or calling this "the Chinese virus," your employer must take reasonable action to stop the harassment if they knew or should have known about it.

Now if this were limited to persistent unwanted statements said directly to a particular employee who doesn't want to hear them, that may well be constitutional; there is considerable precedent for the proposition that such speech said specifically to a particular unwilling listener is less constitutionally protected.

But hostile environment harassment law also potentially covers speech said to willing listeners, so long as some listeners are offended. See here for a summary of some examples (though unfortunately I haven't updated it recently). For more recent examples, see Sherman K. v. Brennan, EEOC DOC 0120142089, 2016 WL 3662608 (EEOC) (coworkers' wearing Confederate flag T-shirts on occasion constituted racial harassment); Shelton D. v. Brennan, EEOC DOC 0520140441, 2016 WL 3361228 (EEOC) (remanding for factfinding on whether coworker's repeatedly wearing cap with "Don't Tread On Me" flag constituted racial harassment).

"Harasses you by … calling this 'the Chinese virus'" thus potentially includes a coworker using the phrase in a multi-person online conversation (not about you, but just about the virus or about whether the Chinese government is responsibility responsible for its spread). Or in a chat in the video lunchroom. Or in a joke passed around by e-mail, or a wide range of similar speech. According to the New Jersey government, private employers have a legally binding. governmentally imposed obligation to restrict such speech. Unconstitutional, I think, though I acknowledge that court decisions are sparse and split on the First Amendment question here.

Nor is this limited to employment; the same rules apply to other places where discrimination is forbidden, such as places of public accommodation:

The place of public accommodation also must take action to stop harassment
based on these characteristics if they know or should have known about it, even if the harassment comes from another patient, customer, or student.

These protections apply even if the conduct at issue stems from concerns related to COVID-19. So, for example, if a classmate repeatedly told your child that they must have the coronavirus because they are from China, the school could be liable if you reported it and they did not investigate or take action. Similarly, if someone on a public bus sees that you are wearing a yarmulke and starts screaming that "Jews are spreading the virus," the LAD requires the bus driver and bus company to take action to stop the harassment.

Now it seems to me that bus companies would normally try to do something (to the extent the bus driver can do it) to stop people from "screaming" anything on the bus. But hostile environment harassment law isn't limited to people "screaming." The same logic would apply to people talking to the people they're traveling with about Jews spreading the virus (for the record, we wouldn't do that, since that would interfere with our running the banks and Hollywood), or wearing shirts that have anti-Semitic messages on them—which are fully constitutionally protected speech, whether on buses, in hospitals, in bars and restaurants (when we have them again), or in other places of public accommodation.

Here too, these restrictions imposed by the government on privately owned places of public accommodation violate the First Amendment. The private property owner isn't bound by the First Amendment, and may institute various speech restrictions itself, and the government as employer has some extra authority over speech by its employees. But here the rules are being imposed by the government as sovereign, threatening massive civil liability if the private property owner refuses to restrict speech. For example, the government pressuring private Internet platforms (through the threat of civil liability) to restrict racist or anti-Semitic speech—or speech labeling the coronavirus "Chinese"—would violate the First Amendment, even though the platforms could impose such restrictions on their own. Likewise, the government pressuring other private companies to restrict such speech violates the First Amendment as well.