Cite as: 505 U. S. 377 (1992)
White, J., concurring in judgment
that have long been the targets of discrimination. Accordingly, the ordinance falls within the first exception to the majority's theory.
As its second exception, the Court posits that certain content-based regulations will survive under the new regime if the regulated subclass "happens to be associated with particular 'secondary effects' of the speech . . . ," ante, at 389, which the majority treats as encompassing instances in which "words can . . . violate laws directed not against speech but against conduct . . . ," ibid.11 Again, there is a simple explanation for the Court's eagerness to craft an exception to its new First Amendment rule: Under the general rule the Court applies in this case, Title VII hostile work environment claims would suddenly be unconstitutional.
Title VII of the Civil Rights Act of 1964 makes it unlawful to discriminate "because of [an] individual's race, color, religion, sex, or national origin," 42 U. S. C. § 2000e-2(a)(1), and the regulations covering hostile workplace claims forbid "sexual harassment," which includes "[u]nwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature" that create "an intimidating, hostile, or offensive working environment," 29 CFR § 1604.11(a) (1991). The regulation does not prohibit work-place harassment generally; it focuses on what the majority would characterize as the "disfavored topi[c]" of sexual harassment. Ante, at 391. In this way, Title VII is similar to the St. Paul ordinance that the majority condemns because it "impose[s] special prohibitions on those speakers who express views on disfavored subjects." Ibid. Under the broad principle the Court uses to decide the present case,
11 The consequences of the majority's conflation of the rarely used secondary effects standard and the O'Brien test for conduct incorporating "speech" and "nonspeech" elements, see generally United States v. O'Brien, 391 U. S. 367, 376-377 (1968), present another question that I fear will haunt us and the lower courts in the aftermath of the majority's opinion.
409
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