Title VII and Free Speech: The First Amendment is Not Hostile to a Content- Neutral Hostile-Environment Theory

First Amendment challenges to the discriminatory-workplace theory of liability have proceeded from an invalid assumption that the theory calls for selective regulation of speech based on its content. Properly interpreted and applied, this theory regulates selective targeting of members of a protected class for harassment that alters the victims' working conditions-regardless of the political or social content of the harassing speech or conduct. This hostile-environment theory poses a much lower threat to First Amendment values and can be evaluated under a less exacting level of constitutional scrutiny. Although difficult questions remain, they can be analyzed within a constitutional framework that is less hostile to regulation than if Title VII sought to selectively suppress unpopular political or social ideas.