If women outnumber men in graduate schools and are entering professional and other workplaces in unprecedented numbers, and if Title VII has aimed to eradicate workplace discrimination for almost fifty years, why are women still so woefully underrepresented at the highest levels of power, leadership, wealth, and prestige in the contemporary workplace?
This Article is about abusive speech in the workplace. It explores how the expression of bias in the workplace has evolved and been shaped by antidiscrimination legislation and jurisprudence. It identifies a category of biased speech that eludes prosecution under Title VII. Moreover, this Article seeks to provide explanations as to why this category of speech goes uncaptured by the law. It posits that changes in workplace behavior and demographics, as well as narrow judicial interpretations of the law, are responsible for the law’s failure to recognize and acknowledge the nexus between some abusive workplace speech and actionable Title VII harassment and “because of” claims. Is it the case that the strictures of Title VII, the benefits of free speech, and the unobstructed marketplace of ideas make this the appropriate result? Or is it the case that Title VII’s objectives simply cannot be met by mechanically relegating some biased speech in certain contexts to the realm of the unlawful, while allowing other, possibly equally corrosive, speech to taint and poison workplace operations and experiences?
Kerri Lynn Stone,
28 Berkeley J. Gender L. & Just.