The Volokh Conspiracy
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First Amendment Limits on Workplace Harassment Liability, in Claim of Anti-Semitic Harassment at CUNY Hunter College Following October 7 Attacks
I've long been interested in what limits the First Amendment imposes on "hostile work environment harassment" law (as well as the similar rules as to education, public accommodation, and housing); I wrote my 1992 law student article on the subject, and have monitored it since. Friday's Report and Recommendation in Garrett v. City Univ. of N.Y. (S.D.N.Y.) (written by Magistrate Judge Robert Lehrburger) offers an interesting analysis, and one that I think is generally sound (even if I would quibble with a few details). The opinion is long, so I've divided it into several parts; this part sets forth the general legal framework, and later parts will talk more about the details of the specific CUNY case.
In the wake of the October 7, 2023 terrorist attack in Israel, political unrest embroiled City University of New York's ("CUNY") Hunter College ("Hunter") campus. Dr. Leah Garrett, a Jewish professor who chairs the Jewish Studies department at Hunter, asserts that events during that period perpetuated antisemitism on campus and created a hostile work environment in violation of Title VII ….
Title VII makes it unlawful for an employer "to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." Proscribed conduct includes subjecting employees to "harassment that, while not affecting economic benefits, creates a hostile or offensive working environment."
To state a hostile work environment claim under Title VII in this circuit, "a plaintiff must plead facts that would tend to show that the complained of conduct: (1) is objectively severe or pervasive—that is, creates an environment that a reasonable person would find hostile or abusive; (2) creates an environment that the plaintiff subjectively perceives as hostile or abusive; and (3) creates such an environment because of the plaintiff's [protected characteristic]." …
Anti-discrimination laws, including Title VII, do not operate in a vacuum. As courts and commentators have recognized, these laws may run up against the First Amendment and its protection of free expression. See, e.g., Saxe v. State College Area School District (3d Cir. 2001) ("anti-discrimination laws are [not necessarily] categorically immune from First Amendment challenge"); DeAngelis v. El Paso Municipal Police Officers Association (5th Cir. 1995) ("Where pure expression is involved, Title VII steers into the territory of the First Amendment"); Richard Fallon, Sexual Harassment, Content Neutrality, and the First Amendment Dog That Didn't Bark, 1994 Sup. Ct. Rev. 1, 17-19 (1994) (discussing "First Amendment Boundaries" on Title VII hostile environment claims); Rodney A. Smolla and Melville B. Nimmer, Smolla & Nimmer on Freedom of Speech § 13:17 (while Title VII and the First Amendment "are not on an apocalyptic collision course," there will be "difficult cases" requiring distinguishing between protected and unprotected speech).
Speech that is discriminatory, offensive, or hateful often falls within the protective ambit of the First Amendment. Matal v. Tam (2017) ("Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express 'the thought that we hate'"); Volokh v. James (2d Cir. 2025) ("the Supreme Court has consistently held that expression motivated by bias, hatred, or bigotry falls within the First Amendment's protection"). Conversely, pure political speech—for which the First Amendment provides the most fulsome protection—may well be considered harassing. Eugene Volokh, Freedom of Speech and Workplace Harassment, 39 UCLA L. Rev. 1791, 1804 (1992) ("core protected speech can indeed constitute harassment"); see Snyder v. Phelps (2011) (political speech can "inflict great pain" on the targeted listener).
An overly capacious construction of Title VII would force employers to censor political speech to avoid civil liability and run afoul of the First Amendment. See New York Times Co. v. Sullivan (1964) (warning "fear of damage awards … may be markedly more inhibiting [of free expression] than the fear of prosecution under a criminal statute"); Gomez v. United States (1989) (courts must avoid interpreting federal statutes in ways that "engender[] constitutional issues if a reasonable alternative interpretation poses no constitutional question"). An unduly narrow construction would undermine Title VII's vital role in eradicating invidious workplace discrimination, a compelling government interest.
Harmonizing the interests protected by Title VII and the First Amendment is particularly precarious in the context of higher education. Political disagreement and protest on college campuses foster student learning, advance academic scholarship, and shape public opinion. At the same time, Congress extended Title VII protections to educational institutions, explicitly recognizing the importance of ensuring academics have an equal opportunity to advance their careers and research unencumbered by workplace discrimination.
In striking the right balance, courts have explained that a reasonable person—the objective measure of what conduct is severe or pervasive under Harris—will distinguish between speech on matters of public concern "directed to the community at large through generally accepted methods of communication," and speech that constitutes "targeted, personal harassment aimed at a particular" individual or individuals. Gartenberg v. Cooper Union (S.D.N.Y. 2025) ("Gartenberg I"), reconsideration denied (S.D.N.Y. 2025) ("Gartenberg II"); accord Landau v. Corporation of Haverford College (E.D. Pa. 2025) (a "reasonable person should understand that … public [political] speech" is not harassment); see also Volokh at 1871 (distinguishing between offensive speech directed at particular individuals in a targeted manner and speech that is not so directed); Smolla § 13.17 ("The Court in Harris was speaking about speech that is severe, usually repeated many times, and sufficient to cause physical fear or humiliation. General comments on gender politics and race relations do not usually cause these reactions—at least they should not in the reasonable person who must learn to live with a degree of contrariness in social life").
The former—speech on matters of public concern directed to the community at large—is political speech to which civil liability does not attach. Gartenberg I; Yelling v. St. Vincent's Health System (11th Cir. 2023) (Brasher, J., concurring) ("the objective prong of our hostile-work-environment standard must be applied consistent with First Amendment principles"). Title VII reaches the latter—targeted personal harassment. Put another way, the former would not be reasonably understood as actionable harassment, while the latter would be.
Gartenberg, a case similarly arising out of campus protests following October 7, 2023, is instructive. The court began its analysis by filtering out allegations deemed to be non-actionable political speech. Examples of such non-actionable expression included a sidewalk protest by pro-Palestinian students, a public letter from alumni supporting the Palestinian cause, pro-Palestinian student newspaper articles, an art installation advocating resistance to colonialism, a vigil to honor Palestinian martyrs, and flyers supporting the Palestinian cause distributed across campus. On the plaintiffs' motion for reconsideration, the Gartenberg court confirmed that Title VII does not impose liability on the defendant for failing to censor these "instances of pure speech by pro-Palestinian members of Cooper Union's community that, as pleaded, were reasonably designed or intended to contribute to an ongoing debate regarding the Israeli-Palestinian conflict."
Sufficient allegations of actionable harassment—including "physically threatening or humiliating conduct and repeated acts of antisemitic vandalism"—remained, however, leading the Court to conclude that the plaintiffs had plausibly pled a hostile environment claim. The court relied primarily on two incidents.
First, plaintiffs' complaint chronicled a harrowing event where a "mob of protestors forced their way past campus security guards" and surrounded a campus library. The mob banged on the library's doors and floor-to-ceiling glass windows "shouting 'let us in!'" and "directed [chants] at the visibly Jewish students [trapped] inside."
Second, the complaint alleged incidents of discriminatory vandalism on campus, including the tearing down of Israeli hostage posters and graffiti "written in a font commonly associated with Mein Kampf." Not only did these allegations involve actionable harassment (as opposed to pure political speech), but, together, they plausibly demonstrated a severe or pervasive hostile environment.
Gartenberg involved a hostile educational environment claim brought by a group of Jewish students against their college under Title VI. Here, the parties—and the Court—agree that the same First Amendment analysis applies in the Title VII context. See Kopmar v. Association of Legal Aid Attorneys (S.D.N.Y. 2025) (applying Gartenberg in Title VII case). Accordingly, both Garrett and CUNY adopt the dividing line articulated in Gartenberg between actionable "physically threatening or humiliating conduct and repeated acts of antisemitic vandalism," on the one hand, and, on the other, non-actionable "pure speech on matters of public concern" expressed through "generally accepted methods of communication" and "reasonably designed or intended to contribute to public debate."
