Fair Measures - Ask the Lawyers

You don't have full freedom of speech at work

The laws prohibiting racial and sexual harassment do not violate the freedom of speech guarantees of the First Amendment, according to a May 21, 1996, California Court of Appeals decision in Aguilar v. Avis Rent-a-Car.

Avis employed the 17 Hispanic/Latino plaintiffs in this case as drivers at its San Francisco airport location, responsible for moving automobiles between parking lots and check-in and service station areas. In 1993, they sued Avis and ten individual managers, alleging employment discrimination.

The jury found that the service station manager routinely called the plaintiffs 'motherfuckers' and other derogatory names, and continually demeaned them on the basis of their race, national origin and lack of English language skills.

The jury awarded each of the plaintiffs damages for emotional distress in the sums of either $15,000 or $25,000, for a total monetary award of $135,000. After the verdicts, the plaintiffs requested injunctive relief.

The injunction states "Defendant John Lawrence shall cease and desist from using any derogatory racial or ethnic epithets directed at, or descriptive of, Hispanic/Latino employees of Avis Rent-A-Car System, Inc., and shall further refrain from any uninvited intentional touching of said Hispanic/Latino employees, as long as he is employed by Avis Rent A Car System, Inc. in California."

Avis first argued that racial harassment was protected free speech, just as cross burning was held by the U. S. Supreme Court to be protected. But the Court of Appeals held that since racial harassment affects working conditions, it is not protected speech.

Avis argued that the injunction's scope was too broad, because it prohibited racial slurs that were made outside the hearing of the Hispanic employees. The court noted, "Avis argues that racist workplace speech that is neither spoken to nor heard by Hispanic/Latino employees will not affect their working conditions. In the context of the present case, we disagree. Continual use of racist epithets poisons the atmosphere of the workplace, even when some of the invective is not directed at or even heard by the victims. If the Hispanic/Latino employees at Avis's San Francisco airport location know that Lawrence is free to continue voicing his on-the-job racist epithets behind their backs, it will remain a hostile place at which to work."

"But the injunction reaches beyond the workplace, and to that extent the court went astray. ... Lawrence's use of racial or ethnic epithets outside the workplace has nothing to do with the fostering of an abusive work environment at Avis's San Francisco airport location."

Avis also argued that the injunction was "vague." The court said, "Avis's opening brief asks, "What do these terms mean?" Complaining that the injunction does not define its terms, Avis wonders how Lawrence will know what is derogatory, what is a racial or ethnic epithet, what it means to be directed at or descriptive of, and what it means for a touching to be uninvited and intentional.

"The nine words at issue -- "derogatory," "racial," "ethnic," "epithets," "directed," "descriptive," "uninvited," "intentional" and "touching" -- are not words of art, are not technical or arcane, and are hardly obscure. This is plain English. Indeed, Lawrence seems to know what is proscribed: as defense counsel pointed out in the posttrial hearings, Lawrence ceased his invective once this lawsuit was filed."

Rita's Opinion

People who are strict civil libertarians will lament the result of this case. As despicable as racial harassment is, they argue, freedom of speech is a greater good. Victims have other options besides suing to avoid harassment; they have the freedom to quit. The court's opinion recognizes implicitly that having a job is a fundamental right, and that freedom to quit is no freedom at all.

This case or one like it may soon end up in the U. S. Supreme Court, as more and more people accused of harassment are making a First Amendment defense.

What do you think? Should verbal harassment -- or some types of sexual speech -- be protected under the First Amendment? Send us an email.

Case Excerpts

OSCAR AGUILAR v. AVIS RENT-A-CAR
Filed May 21, 1996
KING, J.:

I. INTRODUCTION

The employer, Avis Rent-A-Car System, Inc., and the manager, John Lawrence, challenge the constitutionality of an injunction by which the trial court sought to remedy employment discrimination violating the Fair Employment and Housing Act (FEHA) (Gov. Code, section 12900 et seq.). The injunction prohibits Lawrence from "using any derogatory racial or ethnic epithets directed at, or descriptive of, Hispanic/Latino employees," and also orders him to refrain from "any uninvited intentional touching" of those employees, as long as he is employed by Avis in California.

According to the complaint, the individual defendants engaged in racially discriminatory harassment which created an abusive work environment. (Gov. Code, section 12940, subd. (h)(1); Kelly-Zurian v. Wohl Shoe Co. (1994) 22 Cal.App.4th 397, 409.) The complaint alleged that Lawrence in particular, who was the service station manager, routinely called the plaintiffs "'motherfuckers' and other derogatory names, and continually demeaned them on the basis of their race, national origin and lack of English language skills."

The case went to a jury. The jury found racial discrimination as to eight plaintiffs and awarded each of them damages for emotional distress in the sums of either $15,000 or $25,000, for a total monetary award of $135,000. After the verdicts, the eight prevailing plaintiffs requested injunctive relief.

The injunction states in pertinent part: "Defendant John Lawrence shall cease and desist from using any derogatory racial or ethnic epithets directed at, or descriptive of, Hispanic/Latino employees of Avis Rent-A-Car System, Inc., and shall further refrain from any uninvited intentional touching of said Hispanic/Latino employees, as long as he is employed by Avis Rent A Car System, Inc. in California." The injunction also orders Avis not to allow Lawrence to commit such acts "under circumstances in which it knew or should have known of such acts . . . ."[FOOTNOTE 3]

The key issue is whether employment discrimination law as applied to racist speech in the workplace is changed by R. A. V. v. St. Paul, supra, 505 U.S. 377. In R. A. V., the Supreme Court invalidated a city ordinance against cross burning, which was treated in that case as a form of fighting words, because the ordinance did not proscribe all fighting words but discriminated against a subclass of them based on race, color, creed, religion or gender -- i.e., because of their content. (Id. at p. 391.) The gist of R. A. V. is that "while certain categories of speech and expressive conduct may be regulated, such regulation may not discriminate within that category on the basis of content." (In re Steven S. (1994) 25 Cal.App.4th 598, 610, original italics.) Avis contends the prohibition against Lawrence's use of racial slurs is content based and thus violates the rule set forth in R. A. V.

But R. A. V. enunciated several exceptions to the rule it announced, one of which allows the prohibition of expression because of its secondary effects rather than its content. The classic example, cited in R. A. V. (505 U.S. at p. 389), is the imposition of zoning restrictions on adult motion picture theaters in order to prevent urban blight, which is a secondary effect of such theaters. (Renton v. Playtime Theatres, Inc. (1986) 475 U.S. 41, 47-48.) The majority opinion in R. A. V. said that "since words can in some circumstances violate laws directed not against speech but against conduct . . . , a particular content-based subcategory of a proscribable class of speech can be swept up incidentally within the reach of a statute directed at conduct rather than speech." [505 U.S. at p. 389.) The opinion then gave an example -- sexual harassment -- that is particularly germane to the present appeal: "Thus, for example, sexually derogatory 'fighting words,' among other words, may produce a violation of Title VII's general prohibition against sexual discrimination in employment practices [citation]." (Ibid..) The opinion concluded, "Where the government does not target conduct on the basis of its expressive content, acts are not shielded from regulation merely because they express a discriminatory idea or philosophy." (Id. at p. 390.)

R. A. V.'s singling out of sexist epithets tells us that the law against severe or pervasive workplace use of racist epithets creating an abusive work environment is alive and well. Indeed, a concurring opinion in that case pointed out that the majority's discussion of the secondary effects rule was specifically intended to preserve abusive work environment claims. (Id. at p. 409-410 (conc. opn. of White, J.).) If severe or pervasive use of sexist epithets may constitute proscribable employment discrimination and "can be swept up incidentally within the reach of a statute directed at conduct rather than speech" (id. at p. 389), then the same must be true of such use of racist epithets in the workplace. In both instances, the law targets conduct that alters the conditions of employment -- that is, employment discrimination -- rather than mere expression, and is not content based.

Thus, although racist epithets "express a discriminatory idea or philosophy" (ibid.), that of racial supremacy, their pervasive use in the workplace is not shielded from regulation under Title VII and FEHA because the target of the regulation is the secondary effect of such conduct -- employment discrimination -- not its expressive content.

This point is driven home in a post-R. A. V. case, Harris v. Forklift Systems, Inc., supra, ___ U.S. ___ [126 L.Ed.2d 295], where the United States Supreme Court observed in the closely-related field of workplace sexual harassment, "A discriminatorily abusive work environment, even one that does not seriously affect employees' psychological well-being, can and often will detract from employees' job performance, discourage employees from remaining on the job, or keep them from advancing in their careers." (Id. at p. ___ [126 L.Ed.2d at p. 302].) Surely these are secondary effects of severe or pervasive sexist speech; that is what enables government regulation of such speech in the workplace. In FEHA, our Legislature has declared that employment discrimination "foments domestic strife and unrest, deprives the state of the fullest utilization of its capacities for development and advance, and substantially and adversely affects the interests of employees, employers, and the public in general." (Gov. Code, section 12920.) Again, these various societal ills are secondary effects of a discriminatorily abusive work environment, as surely as urban blight is a secondary effect of adult motion picture theaters.

Avis relies on R. A. V.'s observation that "[t]he emotive impact of speech on its audience is not a 'secondary effect.'" (R. A. V. v. St. Paul, supra, 505 U.S. at p. 394, quoting Boos v. Barry (1988) 485 U.S. 312, 334.) Our concern here, however, is not with the emotive impact of racist speech -- e.g., the hurt feelings or anger caused by a single racial slur -- but with employment discrimination resulting from an abusive work environment created by a continual barrage of racist invective. The key difference is that the employment discrimination claim, like a claim of sexual harassment, is founded on harassing speech that is so severe or pervasive as to alter the conditions of the victim's employment. (Harris v. Forklift Systems, Inc., supra, ___ U.S. at p. ___ [126 L.Ed.2d at p. 301].) Such speech has more than an emotive impact. By altering the conditions of employment, as adult motion picture theaters alter the conditions of a neighborhood, such speech crosses the line between constitutionally protected expression and proscribable discriminatory conduct. (Cf. In re Steven S., supra, 25 Cal.App.4th at p. 612 ["fear and intimidation" from cross burning aimed at specific victim "crosses the line between emotive reaction and tangible injury"].)

In short, R. A. V. and Harris tell us in no uncertain terms that the workplace use of discriminatory epithets, whether racist or sexist, that is sufficiently severe or pervasive to alter the conditions of employment may be proscribed in order to prevent the secondary effects of an abusive work environment. We conclude that employment discrimination law as applied to such conduct -- authorizing injunctive relief under both Title VII and FEHA -- is not only unchanged, but expressly validated, by R. A. V.

E. The Injunction

1. Scope

This brings us to the injunction at hand. It prohibits Lawrence from using racial or ethnic epithets "directed at" Hispanic/Latino employees. With regard to such use in the workplace, there is no constitutional problem. This prohibition is an acceptable FEHA remedy for employment discrimination, aimed at the secondary effects of conduct rather than the expressive content of speech.

The injunction also prohibits Lawrence from using racial or ethnic epithets "descriptive of" Hispanic/Latino employees, and thus goes beyond speech directed at the persons who are the subjects of the invective. Again, with regard to such use in the workplace, there is no constitutional infirmity. Avis argues that racist workplace speech that is neither spoken to nor heard by Hispanic/Latino employees will not affect their working conditions. (See Volokh, Freedom of Speech and Workplace Harassment (1992) 39 U.C.L.A. L.Rev.1791, 1871-1872 [proposing workplace harassment rule prohibiting "offensive speech that is targeted at a particular employee" but not "undirected speech, such as overheard conversations between willing employees"].) In the context of the present case, we disagree. Continual use of racist epithets poisons the atmosphere of the workplace, even when some of the invective is not directed at or even heard by the victims. If the Hispanic/Latino employees at Avis's San Francisco airport location know that Lawrence is free to continue voicing his on-the-job racist epithets behind their backs, it will remain a hostile place at which to work. Under the present circumstances, where there was direct racist invective, continued indirect invective would serve to maintain an abusive work environment, and thus both are properly enjoined.

But the injunction reaches beyond the workplace, and to that extent the court went astray. "It is a familiar doctrine of equity that the scope of [an] injunction will be limited to the wrongful act sought to be prevented." (Magill Bros. v. Bldg. Service etc. Union (1942) 20 Cal.2d 506, 512.) Here, the wrongful act sought to be prevented is employment discrimination through racial harassment that creates an abusive work environment. Lawrence's use of racial or ethnic epithets outside the workplace has nothing to do with the fostering of an abusive work environment at Avis's San Francisco airport location, and thus is beyond the scope of the secondary effects rule as described in R. A. V. Such speech will not contribute to the employment discrimination at issue here. Thus, the inclusion of non-workplace speech (and, likewise, non-workplace uninvited intentional touching) within the scope of the injunction was error. Avis contends the injunction is vague and ambiguous in prohibiting "derogatory racial or ethnic epithets directed at, or descriptive of," Hispanic/Latino employees, and any "uninvited intentional touching." Avis's opening brief asks, "What do these terms mean?" Complaining that the injunction does not define its terms, Avis wonders how Lawrence will know what is derogatory, what is a racial or ethnic epithet, what it means to be directed at or descriptive of, and what it means for a touching to be uninvited and intentional.

The nine words at issue -- "derogatory," "racial," "ethnic," "epithets," "directed," "descriptive," "uninvited," "intentional" and "touching" -- are not words of art, are not technical or arcane, and are hardly obscure. This is plain English. Indeed, Lawrence seems to know what is proscribed: as defense counsel pointed out in the posttrial hearings, Lawrence ceased his invective once this lawsuit was filed.

Our preference is for the injunction to specify further an exemplary list of prohibited epithets, in the manner of the injunction in Snell v. Suffolk County, supra, 611 F.Supp. at page 532, which required a jail warden to "forbid the use by correction officers on any County property and on all County business of: (1) epithets such as 'nigger,' 'polack,' 'kike,' 'spic,' 'guinea,' 'honky,' 'mick,' 'coon,' and 'black bitch' (all of which have been used on the job by correction officers in recent years) . . . ." A similar listing of prohibited words -- specifying epithets "such as" those actually used in the workplace by Lawrence -- would more precisely warn Lawrence and Avis what is forbidden.

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.