The Role of the United States Constitution in Business

Since the creation of the United States Constitution in 1787, the system we call, our United States Government has existed. Created to balance a centralized and strong government, the U. S. Constitution has protected every American’s individual human right in possibly every facet of life. With this in mind, what about the rights of American businesses? Individual human rights versus the businesses rights? Alternatively, how the constitutional right affects a business? In today’s workplaces, businesses have to not only deal with protecting employees from harassment from other employees but also protect themselves from civil lawsuits that may arise because of harassment issues. Does the first amendment to the United States Constitution truly give people the right of free speech?

The first amendment to the United States Constitution states that “Congress shall make no law……abridging the freedom of speech” (Mount, p. 11, 2007). Rarely have courts infringed on this clear-cut constitutional right but does this clear-cut constitutional right give one person the authority to harass another? Freedom of speech is exactly that freedom to say whatever a person wants, whenever a person wants and to whomever a person wants, right? Living in such a free democratic society enables every American freedom to do many things but there must be some boundaries a person cannot crossover. Workplace conflict and harassment issues happen when boundaries are not enough. In the workplace, a person should be able to work in an environment free from harassment and unsolicited remarks and because companies share a responsibility to assure employees work in a harassment free setting, companies become liable when such events happen.
“In 2003 a California appeals court held an employer liable for failing to control the abusive speech of one of its employees” but doesn’t the first Amendment give us the right to free speech (Hammond, Kleiner, p. 6, 2003)? In an effort to answer this question a person may also wonder just how free speech crosses the line to harassment. Attempting to answer this question, the Ninth Circuit court of appeals in San Francisco ruled that “if the speech was intended to cause offense, it was harassment and therefore not protected under the first amendment” (Hammond, Kleiner, p. 4). In Near v. Minnesota (1931) 283 U. S. 697, 713. freedom of speech restraints became relevant and important. Saying whatever you want to say is one thing but saying it directly to another person with intent to cause harassment is another. Businesses must secure a harassment free environment for all employees and when freedom of speech restraints are relaxed a little too much that business can be held liable when an employee develops a problem working in that kind of environment.
In today’s workplace, harassment laws are just as relevant as the free speech amendment. Employers have an obligation to prevent harassment in the workplace while creating equality and security. “The Fair Employment and Housing Act (FEHA) and Title VII of the Civil Rights Act of 1964 (Title VII’)” clearly provides that the “public policy of this state that it is necessary to protect and safeguard the right and opportunity of all persons to seek, obtain, and hold employment without discrimination or abridgment on account of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, or sexual orientation” (Workplace Conflict, (2005). In the 1993 case between Harris v. Forklift Systems, Inc., the United States Supreme Court declared that working in a environment of hostility and harassment is a clear violation of the FEHA and Title VII’ Acts. Because our legal system maintains a ‘no tolerance level’ for businesses found liable for violating these important acts penalties can be huge (Workplace Conflict).
According to the book The Legal Environment, “the American legal system is one of the most comprehensive, fair and democratic systems of law ever developed and enforced” (Cheeseman, ¶ 1, p. 4, 2007). With respect in recognizing harassment issues, the legal system protects that right by penalizing business with monetary fines. Damages to plaintiffs can differ from case to case. Depending on the nature of the harassment and level of the acts, monetary damages could result in millions of dollars. Along with the businesses, having to payout money there may also be strict stipulations that the business must abide by. Imposing injunctions or forbidding contact between plaintiff and the accused is also often the case and if the company doesn’t abide by the stipulations set forth by the court, the business could be found to be in contempt of court, which would require heavier penalties.
While the first amendment to the United States Constitution was written with intentions to protect everyone’s constitutional right to freedom of speech it must be recognized that since its creation many things have changed. Along with change, have come new variations of what free speech is or more importantly how people exercise that right.

Cheeseman, H. R., (2007). The Legal Environment of Business and Online Commerce (5th ed.). Prentice Hall, 2007. Upper Saddle River, NJ. Retrieved on June 17, 2008 from
Hammond, G., Kleiner, K., (2003). New Developments Concerning Employment Discrinimation and Harassment. Retrieved on June 23, 2008 from
Hobbs, H., (1999). California Court Gags Future Speech. Retrieved on June 23, 2008 from
Mount, S., (2007). The United States Constitution. Retrieved June 23, 2008 from
Workplace Conflict: Harassment Laws and Free Speech Rights. August 2005. Retrieved June 23, 2008 from