California appeals court holds assault is not illegal harassment

We now have the first California Court of Appeals decision since the U. S. Supreme Court's decision in Harris v. Forklift Systems, ruling specifically on the issue of when harassment is sufficiently severe or pervasive to constitute harassment. The case follows the federal trend of an extremely narrow interpretation of harassment, and also rules that harassing speech may be protected by the First Amendment.

In the case of California Department of Corrections v. State Personnel Board (Wallace), the Third District Court of Appeals ruled in a case involving a state prison that was undergoing disruption as a result of its Affirmative Action program. Many officers discussed their opinions about AA in general, and about people who were promoted "out of turn" due to AA.

A white supervisor, Wallace, said he thought that a Hispanic female officer, Picone, did not deserve her sergeant's stripes. This got back to Picone, who considered Wallace a friend (he was not her supervisor). She asked Wallace to meet with her privately. She led him out to an isolated corridor and asked him not to talk bad about her.

Wallace's response was to tell her about his own frustration not being eligible for promotion. He lost his temper, slapped the wall with his hand, and said to her in a low voice, "I am tired of this Hispanic shit; us white guys are tired of being looked over." He stated that he was "sick and tired about hearing about poor fucking [Picone] getting shafted." He was irate, clenching his teeth, and talking in a very low, irritated voice. Picone said she could understand why he felt that way, but he was handling it all wrong. She started crying. Wallace had tears in his eyes and seemed to be out of control. He grabbed her shirt lapel and started shaking her saying, "Do you understand what I'm saying? Do you understand what I'm feeling? We're sick and tired of it." After a few seconds, he let go of her lapels.

Picone was crying and asked Wallace to walk her out to her car, which he did. Wallace calmed down and they talked a bit more. Later that night he apologized to her. However, she did request to be transferred from the unit as a result of this incident.

The Court ruled on two issues. The first was whether Wallace's comments about Affirmative Action were protected speech under the First Amendment. (The Court noted that grabbing her shirt was not protected speech). The Court held that AA is a matter of public concern, deserving of First Amendment protection. The Court held that the employee's interest in speaking out on Affirmative Action, a subject of public concern, outweighed the employer's interest in maintaining harmony and order in the workplace in this case, where there was no evidence that this conversation disrupted the workplace any more than it already was disrupted.

Second, the Court ruled on whether the conduct alleged was illegal harassment. Citing Harris, the Court said that because the conduct alleged was isolated, not pervasive, it did not constitute an illegal hostile environment.

Significance of this case: This case was decided in the public sector, where employees have far more First Amendment rights than in the private sector. Since this case was decided on First Amendment grounds, it could be appealed all the way to the U. S. Supreme Court. There was a vigorous dissent arguing that this behavior clearly is and ought to be illegal. However, the decision in this case is consistent with the trend in the federal courts.

CALIFORNIA DEPARTMENT OF CORRECTIONS v. STATE PERSONNEL BOARD
(WALLACE, Real Party in Interest and Appellant),
___Cal.App.4th___, 97 C.D.O.S. 8644 (CA 3rd, November 13, 1997)

Information here is correct at the time it is posted. Case decisions cited here may be reversed. Please do not rely on this information without consulting an attorney first.