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Notes -
I'd point to Gustafson, but it's kinda in a weird limbo right now.
As a trivial matter, the 14th Amendment is how the 1st Amendment is incorporated, and I'll point again to the hat. And I use that case rather than a t-shirt because nobody talks about Dawson to the point where you can play Google Golf with it.
You've focused on 'discrimination' in the simple contract or refuse-to-contract sense, and to some extent that case is at least more arguable (though I'd quibble whether the modern contract clause jurisprudence is so clear an honest trim-back from Lochner invention), but under modern CRA jurisprudence that's no longer the boundaries and often not even the central example of modern-day discrimination. For employment discrimination purposes, allowing employees to play the wrong radio stations or tape up the wrong posters is part of the mainstream definition and just as clearly discrimination. So, for that matter post-Bostock, have the bounds of covered frameworks expanded: I emphasize Demkovich for throwing away the ministerial exception (overturned on appeal), but it was not overturned or even seriously questioned on the hostile work environment claim, separate from any employment action claims, despite the court finding explicitly that : "The conduct plaintiff alleges here is classic tortious harassment under Meritor Savings Bank, Harris, Ellerth, Faragher, and countless other cases: his supervisor allegedly subjected him to a campaign of verbal abuse based on his sex, sexual orientation, and disabilities, ultimately interfering with his job performance and mental and physical health."
This may have at one point been limited to actual conduct or conduct-enough-speech to have evaded normal First Amendment jurisprudence (the original hostile work environment in Meritor was serial rape, and Faragher v Boca Raton was handling a case with "unwanted touching" and threats of employment actions when it noted that it was not trying to produce a general civility code), but Faragher was 1998, and Reeves v. C.H. Robinson was 2010, and the law has not slowed. We have a civility code, and the extent employees may want to operate the same conventions independently is interesting but does little to evade the constitutional questions when there are routine actions by the EEOC.
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