410
White, J., concurring in judgment
hostile work environment claims based on sexual harassment should fail First Amendment review; because a general ban on harassment in the workplace would cover the problem of sexual harassment, any attempt to proscribe the subcategory of sexually harassing expression would violate the First Amendment.
Hence, the majority's second exception, which the Court indicates would insulate a Title VII hostile work environment claim from an underinclusiveness challenge because "sexually derogatory 'fighting words' . . . may produce a violation of Title VII's general prohibition against sexual discrimination in employment practices." Ante, at 389. But application of this exception to a hostile work environment claim does not hold up under close examination.
First, the hostile work environment regulation is not keyed to the presence or absence of an economic quid pro quo, Meritor Savings Bank, F. S. B. v. Vinson, 477 U. S. 57, 65 (1986), but to the impact of the speech on the victimized worker. Consequently, the regulation would no more fall within a secondary effects exception than does the St. Paul ordinance. Ante, at 394. Second, the majority's focus on the statute's general prohibition on discrimination glosses over the language of the specific regulation governing hostile working environment, which reaches beyond any "incidental" effect on speech. United States v. O'Brien, 391 U. S. 367, 376 (1968). If the relationship between the broader statute and specific regulation is sufficent to bring the Title VII regulation within O'Brien, then all St. Paul need do to bring its ordinance within this exception is to add some prefatory language concerning discrimination generally.
As to the third exception to the Court's theory for deciding this case, the majority concocts a catchall exclusion to protect against unforeseen problems, a concern that is heightened here given the lack of briefing on the majority's decisional theory. This final exception would apply in cases in which "there is no realistic possibility that official suppression of ideas is afoot." Ante, at 390. As I have demon-
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