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).
