As I noted earlier this morning, Friday's Report and Recommendation in Garrett v. City Univ. of N.Y. (S.D.N.Y.) (written by Magistrate Judge Robert Lehrburger) discusses the limits the First Amendment imposes on "hostile work environment harassment" law (as well as the similar rules as to education, public accommodation, and housing). It concludes that the First Amendment generally protects material on matters of public concern that isn't directly targeted to particular offended people based on their religion, race, sex, etc., but that other speech and conduct that is severe or pervasive enough to create a hostile work environment based on those attributes may be actionable.
The opinion is long, so I've divided it into several parts. Another post discusses the alleged behavior that the court concluded were protected by the First Amendment, while this post discusses the alleged incidents that are "actionable in the sense that they are within the reach of Title VII and not merely political speech protected by the First Amendment":
[1.] Accepting all allegations as pled and drawing all reasonable inferences in Garrett's favor, the anti-Hillel protest plausibly crossed the line into targeted harassment. President Kirschner described the protest as "reach[ing] a new level of aggression by targeting Hillel" and "personal[ly] targeting Jewish students." Many students—as well as Garrett—felt "compelled" to leave campus. While protestors are free to criticize Hillel, or any campus organization for that matter, with strong and even offensive language, antidiscrimination law does not permit an employer to stand idly by when, as here, protestors "isolated or targeted individual[s]" in the protected class. Landau.
To be sure, discovery may show the protest did not involve threatening or humiliating targeted conduct. But given President Kirschner's own description of the event as "personal[l]y targeting" Jewish students and reaching a "new level of aggression" that compelled students and Garrett to leave campus, the Court concludes that Garrett has, at this early stage, plausibly pled actionable harassment from the Hillel protest.
{Generally, a plaintiff cannot transform political speech into actionable harassment by alleging, in a conclusory fashion, that the protected expression was targeted or otherwise actionable. See Gartenberg ("conclusory suggestion that [certain] speech included [actionable] 'threats of violence' … does not plausibly allege that any of this expressive conduct constituted" harassment). Here, however, the Complaint relies on Hunter President Kirschner's own account of the event.}
[2.] Garrett alleges a student was "physically assaulted, as his pro-Israel sign was forcibly taken from him" at one protest. This allegation is actionable because the "First Amendment does not protect violence." NAACP v. Claiborne Hardware Co. (1982).
