Commentary

Saying ‘OK, Boomer’ May Lead to Lawsuits in Virginia

By Hans Bader | January 29, 2021 | 10:54am EST
Lady Justice holds her scales. (Photo credit: LOIC VENANCE/AFP via Getty Images)
Lady Justice holds her scales. (Photo credit: LOIC VENANCE/AFP via Getty Images)

Thanks to laws against "hostile work environments," saying "OK, boomer" in the workplace can get you fired, notes human-resource professional Suzanne Lucas. That's because it expresses prejudice based on age, and thus contributes to a hostile environment for older workers. Under federal law, conduct is illegal when it creates a "hostile or abusive working environment" for people based on their ageracesex, disability, or other protected characteristic.

A bill that is likely to become law in Virginia may expand this liability further. It would make employers liable for work environments that are hostile or "offensive," based on age, race, sex, sexual orientation, religion, disability, or marital status, defining that as "workplace harassment."

Being told "OK, boomer" could certainly be "offensive" to an older worker, so employers could be sued when someone says this phrase to someone else in their workplace. I agree that there should be remedies for severe age-based harassment, and as an older person, I would not like to repeatedly be taunted with "OK, boomer." That would be abusive.

But I do not like the bill's statement that an "offensive work environment" is a basis for finding "workplace harassment." In my opinion, offensiveness -- as opposed to abusiveness or hostility -- should not be a reason to restrict speech. As the Supreme Court noted in striking down a ban on flag-burning, "If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable." (See Texas v. Johnson (1989)).

The fact that your co-workers periodically say offensive things -- that gradually add up to an "offensive work environment" -- should not be a reason to sue your employer. (There are admittedly EEOC sexual harassment guidelines that use the word "offensive," but EEOC harassment guidelines do not have the force of law, as courts have explained in cases such as Garcia v. Spun Steak Co. (1993)).

Even institutions subject to the civil-rights laws -- like state colleges -- can't necessarily ban speech just because it offends employees or students. In 1995, an appeals court struck down as a violation of free speech a racial harassment policy that banned "any intentional, unintentional, physical, verbal, or nonverbal behavior that subjects an individual to an intimidating, hostile or offensive educational, employment or living environment" (See Dambrot v. Central Michigan University (1995)(emphasis added)).

Still, federal law does ban conduct (including jokes and insults) that create a "hostile or abusive work environment" based on traits like race or sex. The Supreme Court has so stated, in sexual-harassment rulings such as Harris v. Forklift Systems (1993). Such conduct can constitute illegal harassment as a result.

So employers that want to avoid lawsuits already have a good reason to ban employees from saying "OK, boomer," notes Ms. Lucas:

[I]f you have an employee, of any age, dropping the "OK, boomer" line against any employee who is over the age of 40, you have to take it seriously. You can't dismiss it as a harmless banter. Just the same way you wouldn't dismiss it if someone said, "OK, Mexican."...One time is a joke, but it can lead to patterns that create a hostile work environment, putting the company on the receiving end of a lawsuit.

So employers have a reason to regulate workplace speech. And the pressure to restrict such speech will be even greater under the Virginia bill, known as the Safe & Thriving Workplace Act (SB 1360 /HB 2155). Federal law limits total damages for "harassment" to $300,000 or less, depending on employer size. But the Virginia bill, which was approved by a state senate committee on January 27, permits unlimited compensatory damages, and up to $350,000 in punitive damages, against even small employers.

The bill also encourages juries to find employers liable in close or ambiguous situations, because it contains language saying that:

"A single incident may constitute workplace harassment."

"The conduct...may include....verbal, pictorial, audio, or visual conduct"

"Conduct may be workplace harassment regardless of whether (i) the complaining party is the individual being harassed" or "the conduct occurred outside of the workplace."

That could lead to verdicts against employers for "sexual harassment" or "workplace harassment" that make no sense (such as an employer being held liable because one employee told the other "OK, boomer" outside the workplace).

But the location where conduct happens is in fact very relevant to whether it creates a hostile or offensive work environment, so it is misleading for this language in the bill to suggest that conduct is "harassment" "regardless of whether" it "occurred outside of the workplace."

Courts have often noted that inappropriate behavior outside the workplace has much less impact on the "work environment." As Judge Barbara Crabb ruled in one sexual harassment case, “even top level executives are entitled to make fools of themselves after work and on their own time.” (See Alvey v. Rayovac Corp. (1996)).

The bill's punishing speech that is not aimed at the plaintiff could cause additional problems under the First Amendment.

In 2010, a federal appeals court dismissed a racial harassment lawsuit against a professor for his recurrent racially-charged emails about immigration. It found that the lawsuit against him for creating a hostile work environment was barred by the First Amendment, where his emails were not aimed at the particular Hispanic college staffers who sued him. (See Rodriguez v. Maricopa Community College District (2010)).

Similarly, that court earlier overturned on First Amendment vagueness ground a professor's discipline for sexually-themed lectures that created a hostile learning environment. His lectures -- which were given to both men and women, and not aimed at women, the "protected class" -- fell within the "ambiguous outer reaches" of the college's harassment policy, but his lectures were not so clearly or flagrantly harassing or discriminatory that he had fair notice that they were forbidden by the policy. The policy, like the Virginia bill, banned verbal conduct of a sexual nature that creates a "hostile, or offensive" environment. (See Cohen v. San Bernardino Valley College (1996).)

Lastly, the Virginia bill's text does not contain the words "severe" or "pervasive." Campus sexual harassment codes that lacked the words "severe" and "pervasive" were struck down as violations of free speech in Saxe v. State College Area School District (2001) and DeJohn v. Temple University (2008)).

Hans Bader practices law in Washington, D.C. After studying economics and history at the University of Virginia and law at Harvard, he practiced civil-rights, international-trade, and constitutional law. He also once worked in the Education Department.

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