Waxing philosophical: workplace speech vs. anti-discrimination law

Federal anti-discrimination laws protect people, not the content of their speech. Amy Wax, a Penn law professor (who, frankly, should have known better) just learned this lesson the hard way.

The law school disciplined her for what the it labeled "flagrant unprofessional conduct" stemming from a string of statements she made—some in the classroom, others in media—that denigrated racial minorities and others, including:

• Insinuating that Black people are inherently inferior to whites.
• Asserting the U.S. would be "better off with more whites and fewer nonwhites."
• Telling a Black colleague it's "rational to be afraid of Black men in elevators."
• Dismissing interracial marriage as misguiding advertising.
• Commenting on a podcast that Black women are "single moms with a bunch of guys who float in and out."
• Saying same-sex relationships are selfish and not about community or family.
• Claiming the country is better off with "fewer Asians" and describing them as resentful and envious of Western achievements.

Wax sued, claiming that punishing her for years of inappropriate racist, sexist, and homophobic statements was discrimination against her as a White Jewish woman.

The district court wasn't buying it and dismissed her lawsuit outright: "Federal anti-discrimination law does not provide a cause of action for disparate treatment of speech conduct. In other words, it is the speaker, not the speech, that is protected."

This isn't "cancel culture." It isn't "academic freedom." It’s accountability. Period. Tenure doesn't mean you get to humiliate your students or colleagues without consequence.

Here's the lesson for all employers: Don't let the fear of litigation paralyze you. If conduct violates your standards, act. Anchor discipline in professionalism, respect, and policy. And document like your case depends on it… because it will.

Amy Wax tried to stretch discrimination law into a shield for bigotry. The court slammed that door shut.