Memorandum Jenner & Block
February 2, 2004
To: FREEDOM TO READ FOUNDATION
From: JENNER & BLOCK
Subject: Civil Liability for an Alleged Hostile Work Environment Related to Patron or Employee Internet Use
The Freedom to Read Foundation has asked us to evaluate a library's potential liability for an alleged hostile work environment created by a patron's or employee's use of the Internet.
Before we begin that analysis, we must caution that this memorandum is merely a general discussion of these issues, and is not an opinion letter. Because laws differ from state to state, this memorandum necessarily cannot serve as the basis for legal judgments for any library. Additionally, the law related to Internet use and filtering is changing rapidly as new legislation is adopted and new court challenges are filed. A library that offers Internet access should seek legal advice for an analysis of its own particular situation and the current laws of its own state and jurisdiction.
Federal civil rights laws and many states' parallel civil rights laws afford employees the "right to work in an environment free from discriminatory intimidation, ridicule and insult." 1 Some individuals have argued that access to materials over the Internet that are offensive due to their sexually explicit nature or messages regarding race, religion or ethnicity may subject a library to liability for a hostile environment under these antidiscrimination laws. Indeed, the Loudoun County, Virgnia [sic] Library Board of Trustees, which was sued for installing filtering software on library computers, raised as one justification for installing the software the possibility that Internet use could create a hostile work environment. To date, no published judicial opinion addresses such a hostile environment claim brought by a library employee on this basis. There have, however, been administrative complaints filed in Minnesota and Chicago by librarians alleging a hostile work environment. In both cases, the complaints were resolved out of court.
Similarly, to date, no published judicial opinion addresses the legality under the First Amendment of a library's installation of filtering software to avoid such hostile environment claims. Courts have held that there is a First Amendment right to receive information. 2 It is a fundamental principle of First Amendment jurisprudence that a person has a constitutional right to send and receive non-obscene material that may be offensive to others. 3 It is equally fundamental that the government cannot ban speech merely because it is offensive to others. 4 In analogous cases challenging restrictions on access to the library, courts have held that the particular public library whose policy was under consideration was considered a limited public forum, open to the public for "the communication of the written word." 5 Because the library was considered a limited public forum, it could not implement a content-based regulation or rule restricting access to speech, unless the rule restricting access to speech was justified by a compelling government interest and there was no less restrictive alternative for achieving that interest. 6
Libraries are thus in the position of having a legal obligation to provide a non-hostile work environment, and also to ensure that patrons and employees can fully exercise their constitutional rights to receive information available or accessible in the library. To date no court has addressed the possible tension regarding this issue. 7 This memorandum highlights some of the legal doctrines and cases that may be relevant to this issue, and provides general guidance to libraries on how to ensure that patrons can fully exercise their First Amendment rights without creating a hostile work environment for library employees. The law is, however, evolving in this field and may vary among jurisdictions. Legal counsel should be consulted in all instances when developing specific policies and responding to complaints.
A. Can Materials on the Internet Be Sufficient to Create a Hostile Environment?
In order to win a harassment claim based on a hostile environment, a plaintiff must prove that: (1) he or she is a member of a protected group; (2) he or she was subject to pervasive or severe harassment that unreasonably interfered with work performance because of his or her membership in a protected group, e.g., sex, race or religion; 8 (3) both a reasonable person and the employee would view the behavior as harassment; and (4) the employer should be held legally responsible for the environment.
There is no clear answer as to whether an employee's viewing of materials on the Internet alone could constitute a hostile environment. No judicial opinions address this precise question. 9 General principles established in other hostile environment cases provide guidance, however, and strongly suggest that viewing materials on the Internet alone should not constitute a hostile work environment. 10 First, in order to be actionable, harassment must be either "sufficiently severe or pervasive" as "to alter the conditions of [the victim's] employment and create an abusive working environment." 11 In making that determination, courts look to the totality of the circumstances - including the frequency of the conduct, its severity, whether it is physically threatening or humiliating or is a mere offensive utterance, and whether it unreasonably interferes with the employee's work. 12 Furthermore, both the employee and a reasonable person must view the conduct as sufficiently severe or pervasive. 13 Thus, conduct that is merely offensive, such as the "mere utterance of an . . . epithet which engenders offensive feelings in an employee," is not actionable conduct 14 [sic]. Nor is isolated or sporadic conduct that is not severe and which does not sufficiently alter the work environment. 15 Where the offending conduct consists only of visual images that are not permanent fixtures in the work place, but are intermittent and temporary, a judge would probably find the conduct not sufficiently severe or pervasive. 16 Particular cases may depend on fact-specific circumstances.
In those cases that have found liability based, in part, on the presence of visual images, the images were typically coupled with additional severe and pervasive sexually discriminatory verbal or physical conduct. 17 For example, in Robinson v. Jacksonville Shipyards, Inc., 760 F. Supp. 1486 (M.D. Fla. 1991), in addition to visual material, there was graffiti directed at the employee, sexually explicit material placed in the employee's personal toolbox, and co-workers repeatedly made comments of a sexual nature to the employee and her co-workers. Other women were also subject to unwelcome physical touching and degrading comments. In Andrews v. City of Philadelphia, 895 F.2d 1469 (3d Cir. 1990), in addition to sexually explicit pictures, the employees were repeatedly referred to by co-workers in an offensive and obscene manner, one employee was sexually propositioned by a supervisor, sexually explicit materials were placed in one employee's personal desk, the victims' cars were vandalized, threatening and obscene phone calls were made to employees' homes, and one employee was severely burned as the result of lime being placed inside her shirt. But see West v. Philadelphia Elec. Co., 45 F.3d 744 (3d Cir. 1995) (finding harassment predominantly consisting of frequent presence of pictures of Ku Klux Klan and nooses and other racially offensive pictures in work place, although evidence of racially harassing conversations also was present). 18 Thus, while few, if any, cases directly address the question of whether temporary visual images alone could create a hostile environment, the current case law strongly suggests that the presence of actual conduct directed at the employee is required to create a hostile environment. The context in which the offending conduct takes place is key. 19 Further, the case law requires that the behavior must be severe or pervasive. 20
B. Liability of Library for Patron's Behavior. 21
Another hurdle to liability depends on whether a library can be held accountable to its employee for behavior of a non-employee. The law on this subject is relatively new and undeveloped. It is clear that an employer can be held liable for the actions of a non-employee where the employer knew or should have known of the offending behavior and ratifies or acquiesces in the behavior by failing to take prompt remedial action. 22
Although the law on this subject is evolving, current authority suggests that two important factors must also be evaluated in assessing an employer's potential liability for a non-employee's harassing behavior - (1) the extent of the employer's control over the non-employee harasser; and (2) any other legal responsibility the employer may have with respect to the conduct of the non-employee. 23 A library's First Amendment legal obligations to its patrons should be considered an important factor by any court evaluating legal liability. It is difficult to predict what effect this countervailing consideration would have, given that few, if any, courts have considered employer liability where there were important First Amendment obligations to non-employees or where the employer operated a limited public forum. Plainly, however, a library could not be held liable for a patron's actions unless it had some notice of the alleged harassment. Once a library receives notice from an employee of potential harassment, the library must take immediate steps to investigate the complaint and seek legal counsel.
C. First Amendment Concerns.
Very few courts have addressed the tension between hostile environment claims and the First Amendment. Those that have considered these issues have reached differing conclusions. While subject to much academic criticism, several courts have rejected First Amendment defenses raised in hostile environment cases. For example, in Jacksonville Shipyards, 760 F. Supp. 1486, and Baty v. Willamette Indus., Inc., 985 F. Supp. 987 (D. Kan. 1997), aff'd, 172 F.3d 1232 (10th Cir. 1999), courts rejected arguments that employers could not be held liable for discrimination because the hostile work environment was based on written and oral comments protected by the First Amendment. The Baty court relied heavily on Supreme Court opinions citing Title VII as an example of a federal statute that does not regulate speech in violation of the First Amendment because it is a content-neutral regulation of conduct. 24 The courts also refused to treat the speech at issue as constitutionally protected, deeming the pictures in combination with verbal harassment directed at the employee to constitute illegal discriminatory conduct. Jacksonville Shipyards, 760 F. Supp. at 1535. Such reasoning is unlikely to be applied to public libraries in that the access of patrons to non-obscene materials are constitutionally protected. Further, the viewing of images on the Internet, without more, is unlikely to be viewed as conduct, rather than speech.
Courts have also recognized that banning constitutionally protected sexually explicit materials, which an employee finds offensive, violates the First Amendment. In Stanley v. Lawson Co., 993 F. Supp. 1084 (N.D. Ohio 1997), the court addressed claims by a convenience store employee that the job requirement that she sell sexually oriented magazines created a hostile environment in violation of federal and state anti-discrimination laws. The court rejected her claims on several bases, including that the removal of the magazines would violate the First Amendment.
Courts have also found certain content-based policies and rules aimed at preventing sexual harassment to be violations of the First Amendment. In Johnson v. County of Los Angeles Fire Dep't, 865 F. Supp. 1430 (C.D. Cal. 1994), a court held that a rule prohibiting Playboy in the firehouse in furtherance of a sexual harassment policy violated the First Amendment, where the material was for private use only and was read in private spaces or shared consensually. 25 In Urofsky v. Allen, 995 F. Supp. 634 (E.D. Va. Feb. 26, 1998), rev'd, 167 F.3d 191 (4th Cir. 1999), vacated on reh'g en banc (4th Cir. June 3, 1999), the court ruled that a Virginia statute restricting state employees' access to sexually explicit materials on the Internet was unconstitutional. In this case the court based its reasoning, in part, on the fact that content-neutral sexual discrimination laws already addressed any problems created by such images fostering a hostile environment.
When reviewing the above cases, a public library must keep in mind that it differs from all of the employers in the above situations in that it has an affirmative duty to protect the First Amendment rights of its patrons.
D. Minimizing Liability.
A library can and should adopt, with the advice of counsel, a harassment policy that makes clear that it does not condone, encourage, or tolerate the harassment of employees by other employees or by patrons through the use of any means, whether or not those means include images from the Internet. The library also should establish procedures for addressing complaints of a hostile work environment by an employee, and these procedures should be easily accessible and made well-known to employees. Any complaints should immediately be directed for investigation to an employment counselor or legal counsel. Individual cases are likely to be very fact-specific and must be evaluated based on the particular facts of the case. Additionally, the law may have changed or there may be regional differences which must be reviewed. A library can also take steps to minimize employees' exposure to potentially offensive Internet images by locating Internet terminals in more private areas of the library or by using privacy screens on Internet computer terminals.
Filtering software does not appear to be a solution to problems raised by potentially offensive Internet images. Filtering cannot guarantee that offensive materials will be blocked. Nor can filters prevent employees or patrons from using other materials to harass an employee. Further, the use of currently available filtering software by public libraries poses serious First Amendment concerns because such filtering would almost certainly restrict adults, older minors or even younger minors from constitutionally protected material. 26
A library considering hostile work environment or filtering policies should determine, however, whether there are any current laws regarding its obligations by consulting with legal counsel.
1 Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65 (1986).
2 Reno v. ACLU, 521 U.S. 844, 874 (1997).
3 Ashcroft v. Free Speech Coalition, 535 U.S. 234, 256 (2002); Reno v. ACLU, 521 U.S. at 874-76; United States v. X-Citement Video, Inc., 513 U.S. 64, 72-73 (1994).
4 Texas v. Johnson, 491 U.S. 397 (1989); Hustler Magazine v. Falwell, 485 U.S. 46 (1988).
5 Kreimer v. Bureau of Police, 958 F.2d 1242, 1259 (3d Cir 1992).
6 See, e.g., Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 46 (1983).
7 Established law addressing private employers, while instructive, may not be directly applicable to public libraries because of their status as limited public fora.
8 The Supreme Court recently emphasized that federal antidiscrimination laws "do not prohibit all verbal or physical harassment in the workplace; [they] are directed only at 'discriminat[ion] . . . because of . . . sex,'" or other protected characteristics, such as race or religion. Oncale v. Sundowner Offshore Servs. Inc., 523 U.S. 75, 80 (1998).
9 In Urofsky v. Allen, 995 F. Supp. 634 (E.D. Va. 1998), rev'd, 167 F.3d 191 (4th cir. 1999), vacated on reh'g en banc (4th Cir. June 3, 1999), the court recognized that material on the Internet, just as books and calendars, could offend workers and that pre-existing content-neutral civil rights laws protected employees against such harassment "cut[ting] across media to include print displays of sexually hostile material." Id. at 643. The court, however, rejected the argument that a female employee's voluntary decision to access sexually explicit material on the Internet could be construed as sexual hostility directed against that employee. Id. at 640 n.6.
10 These issues are not limited to use of the Internet. Similar concerns can arise from other printed material available in the library or material brought in by patrons from outside the library.
11 Meritor Sav. Bank, 477 U.S. at 67 (internal quotation marks and citation omitted, alteration in original). The EEOC defines hostile environment sexual harassment as "[u]nwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature" that unreasonably interferes with the individual's work performance. EEOC Guidelines, 29 C.F.R. § 1604.11(a). [NOTE: The following was in an earlier version of this memorandum: (EEOC Guidelines are not binding on courts, but are often looked to as persuasive authority, General Elec. Co. v. Gilbert, 429 U.S. 125, 141-42 (1976)).]
12 Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993).
13 Id. at 21-22.
14 Id. at 21 (quoting Meritor, 477 U.S. at 67, alteration in original).
15 See, e.g., Baskerville v. Culligan Int'l Co., 50 F.3d 428, 430-31 (7th Cir. 1995).
16 In other contexts the Supreme Court has minimized the effect of temporary images from which a viewer may avert his or her eyes. For example, in Erznoznik v. City of Jacksonville, 422 U.S. 205, 210-11 (1975), the Supreme Court ruled that an ordinance prohibiting films containing nudity in drive-in theaters was unconstitutional. The Court reasoned that viewers passing drive-in theaters on the street or sidewalk were not captive audiences in that they could easily avert their eyes to avoid further bombardment of their sensibilities; see also, e.g., United States v. Playboy Entm't Group, Inc., 529 U.S. 803, 813 (2000); Cohen v. California, 403 U.S. 15, 21 (1971).
17 Courts have found that policies prohibiting the private reading of constitutionally protected sexually explicit material in furtherance of sexual harassment policies violate the First Amendment. Johnson v. County of Los Angeles Fire Dep't, 865 F. Supp. 1430 (C.D. Cal. 1994) (discussed infra in section C).
18 Additionally, courts have held that mere language and epithets unaccompanied by other action, which are infrequent and not deeply offensive, are not sufficient to create a hostile environment. See, e.g., Baskerville, 50 F.3d at 430-31. On the other hand, a constant and steady stream of vulgar and offensive epithets can constitute a hostile environment. See, e.g., Gross v. Burggraf Constr. Co., 53 F.3d 1531, 1539 (10th Cir. 1995).
19 Typically, in cases finding a hostile work environment, the sexually explicit visual material is both pervasive throughout the work environment and has no relation to the employer's business. Where the material that offended an employee was related to the employer's business, courts have found that there was no harassment. See, e.g[sic], Stanley v. Lawson Co., 993 F. Supp. 1084 (N.D. Ohio 1997) (discussed infra in section C.).
20 These cases also highlight the general principle that the civil rights laws are not general anti-offense statutes intended to eliminate conduct that employees do not like. Rather, the laws are designed solely to eliminate discriminatory treatment of employees, based on a protected class, e.g., gender or race. Oncale, 523 U.S. at 79-82 (Title VII is not a general civility code).
21 It is well-established that an employer may be liable for a supervisor's conduct or for a coworker's conduct that creates a hostile environment. Meritor Savings Bank, 477 U.S. at 69-72; EEOC Guidelines, 29 C.F.R. § 1604.11(c) & (d). Important factors in assessing employer liability for agents' conduct are whether the employer had a hostile environment policy, clear procedures for victims to raise complaints, and whether the employer took effective remedial steps to protect victims and eliminate harassment. Baskerville, 50 F.3d at 431-32. The Supreme Court has held that an employer can be held vicariously liable for hostile environment harassment by supervisor with authority over a complaining employee. Faragher v. City of Boca Raton, 524 U.S. 775 (1998); Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998). The Court held that an employer defending an allegation of vicarious liability (an allegation that the employer should be liable even if the employer did not know of the hostile environment created by the supervising employee) can raise two affirmative defenses: (a) that the employer exercised reasonable care to prevent and promptly correct any sexually harassing behavior; and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or otherwise failed to avoid harm.
22 See, e.g., Rodriguez-Hernandez v. Miranda-Velez, 132 F.3d 848, 854-55 (1st Cir. 1998); Folkerson v. Circus Circus Enterprises, Inc., 107 F.3d 754 (9th Cir. 1997); Powell v. Las Vegas Hilton Corp., 841 F. Supp. 1024 (D. Nev. 1992); EEOC Guidelines, 29 C.F.R. § 1604.11(e).
23 EEOC Guidelines, 29 C.F.R. § 1604.11(e).
24 Wisconsin v. Mitchell, 508 U.S. 476, 487, 489 (1993).
25 This case suggests that offensive, but legally protected material, viewed with the use of a privacy screen or on computers in private locations, should not be deemed to create a hostile environment.
26 See Memorandum to American Library Association from Jenner & Block, 2003, regarding libraries' liabilities for using or failing to use filtering software. [Internet Filtering in Public Libraries.] Under revision.
Links to non-ALA sites have been provided because these sites may have information of interest. Neither the American Library Association nor the Freedom to Read Foundation necessarily endorses the views expressed or the facts presented on these sites; and furthermore, ALA and FTRF do not endorse any commercial products that may be advertised or available on these sites.
Civil Liability for an Alleged Hostile Work Environment Related to Patron or Employee Internet Use (PDF File)
Notes: Hyperlinks added, dead links removed. Formatting of end note numerals changed. Inconsistent formatting of legal citations in original. Colors in original. Copyright notice is from ala.org as copyright notice on the source page went to a dead link.
Observation: Jenner & Block has been proven wrong in the US Supreme Court so this memorandum of theirs is provided for what it's worth, especially since it appears to hold forth issues already asked and answered. For example, pornography (called "constitutionally protected material" since using the word "pornography" is anathema to the effort to promote it in libraries or to hide that it is responsible for the sexual harassment of librarians, and notice Jenner & Block did not use that word) is not protected by the First Amendment in public libraries but this memo implies otherwise. Worse, Jenner & Block recommends a means to reduce liability that the US Supreme Court found makes the problems worse, and it flat out advises against using filters. Filtering software has vastly improved since this memo was written, and even ALA itself has admitted filters work well. Also, important issues such as constructive discharge and librarians who have successfully sued for sexual harassment are not discussed.