Justices Uphold Workplace Ban on Racial Slurs

A deeply divided California Supreme Court ruled Monday that judges do not violate 1st Amendment rights by prohibiting, in advance, the use of racial slurs on the job--a hotly debated issue pitting the right of free speech against the right to a hostility-free workplace.

“A remedial injunction prohibiting the continued use of racial epithets in the workplace does not violate the right to freedom of speech,” Chief Justice Ronald George wrote, if a lower court has determined that the use of such language “will contribute to the continuation of a hostile or abusive work environment and therefore will constitute employment discrimination.”

But the justices issued five separate opinions on the difficult issue: the relatively narrow one written by George and signed by two others, a concurring opinion that took a broader view of workplace harassment law and three separate dissents all decrying what was characterized as unconstitutional prior restraint on free speech.

In fact, some legal scholars suggested Monday that the ruling could be used in future efforts to restrain speech or news publications.

Both the U.S. Constitution and its California counterpart restrict prior restraint. But the order upheld by the California Supreme Court on Monday “constitutes just such a prior restraint,” wrote Justice Stanley Mosk in dissent. “It impermissibly restricts speech based on the mere assumption that these words will invariably create a hostile and abusive work environment amounting to employment discrimination.”

The case stems from a 1993 lawsuit in which 17 Latino employees of Avis Rent-a-Car sued the company and its managers for creating an abusive work environment at its San Francisco International Airport outlet.

A San Francisco jury awarded eight of the workers $135,000 in damages in part because of service station manager John Lawrence’s repeated use of racially tinged obscenities and ethnic slurs deriding Latinos. Moreover, Superior Court Judge Carlos Bea ordered Lawrence to stop using such language and ordered Avis not to permit it in the future.

Avis appealed Bea’s order, arguing that such an injunction amounted to unconstitutional prior restraint on free speech--but did not appeal the damages.

In 1996, a divided Court of Appeal ordered Bea to narrow the injunction to apply just to behavior at work, and to create a list of prohibited terms. It ruled that such a modified injunction “is not a prior restraint on freedom of expression, but lawfully precludes employment discrimination as a secondary effect of severe or persistent racist speech.”

Because Avis did not provide a transcript of the original trial to be used during the appeal process, the justices did not have a list of the offensive words that Lawrence used. As a result, George wrote, nothing in the court record suggested that Bea’s injunction was too broad.

Indirect Consequences

Attorney Paul W. Cane Jr., who represents employers in labor and employment law issues, does not think that the decision will have much impact at most workplaces, because “most employers would informally enjoin their employees from this kind of conduct anyway.”

UCLA law professor Eugene Volokh agrees that the decision is relatively narrow as to harassment issues--addressing slurs, but not religious proselytizing, sexual jokes or offensive political statements. But he says that media outlets could face indirect consequences because the decision opens new ground for prior restraint of speech.

The California Constitution has always offered stronger speech protections than the U.S. Constitution in outlawing prior restraint, he said. But in Monday’s opinion, Volokh added, “the majority seems to be cutting back on that.”

“After this case, it seems much more plausible for someone to sue a newspaper asking for an injunction barring publication of something he considers libelous,” he said.

The intersection of the 1st Amendment and workplace harassment has been widely debated in legal circles and is a relatively new issue that more courts probably will face in the future.

Volokh, who specializes in such issues, said that California’s Supreme Court is the first high court to confront two thorny questions: “Is prior restraint allowable in the workplace harassment context? Is it permissible for a court to issue an injunction--potentially enforceable by a criminal sentence for contempt--prohibiting racial slurs in the workplace?”

In an odd twist on its 79-year tradition of championing freedom of expression, the American Civil Liberties Union of Northern California weighed into the case on the side of the Latino workers. In a 1997 friend of the court brief, the ACLU supported “limits on the unrestrained speech of bigots in the workplace, particularly when they are in positions of authority on the job.”

Michelle Alexander, director of the racial justice project for the ACLU of Northern California, on Monday applauded what she called an “appropriate and modest effort” to protect workers from discrimination.

“It would have been stunning for the California Supreme Court to have held otherwise,” Alexander said. “Anti-discrimination laws really would be meaningless if they did not protect employees from the type of racist speech and conduct perpetrated by the Avis supervisors in this case.”

Donna M. Rutter, who tried the case on behalf of Avis, declined to comment Monday because she had not read the lengthy opinions. “We would like to read it before we can make a comment on it,” she said. But “I was most taken by the number of dissents.”

Lawrence, another Avis counsel said last week, remains in the same position with the company.

Attorneys for the workers could not be reached for comment.

In their opinion upholding the Court of Appeal’s order, the justices noted that while it is broadly stated, “the right to free speech is not absolute.” Many crimes, in fact, consist solely of spoken words, such as soliciting a bribe and making a terrorist threat.

And while the government may not prohibit an individual from expressing racially demeaning views during a public protest, the U.S. Supreme Court has made it clear that speech that is protected on a street corner may not be protected in the workplace.

In 1986, the high court ruled in the case of Meritor Savings Bank vs. Vinson that verbal sexual harassment may constitute employment discrimination under Title VII of the Civil Rights Act and held that employees have “the right to work in an environment free from discriminatory intimidation, ridicule and insult.”

The Fair Employment and Housing Act is California’s version of Title VII, and the Avis employees sued under this act, alleging that Lawrence engaged in constant verbal racial harassment, called them “derogatory names and continually demeaned them on the basis of their race, national origin and lack of English language skills.”

Disagreement on Prior Restraint

Avis and Lawrence did not appeal the monetary damages awarded to the victims. As a result, the justices wrote, there is no question that Lawrence’s conduct “created a hostile or abusive work environment for plaintiffs on the basis of race” and therefore is illegal.

But while the defendants argued that punishment for a violation of the Fair Employment and Housing Act based on speech is proper, they said that the court’s injunction against future slurs was unconstitutional prior restraint.

George, in his opinion, wrote that “under well-established law, however, the injunction at issue is not invalid prior restraint, because the order was issued only after the jury determined that defendants had engaged in employment discrimination, and the order simply precluded defendants from continuing their unlawful activity.”

Cliff Palefsky, a civil rights employment lawyer, agreed that it is definitely appropriate under “certain and unique circumstances” to restrain speech in the workplace, but he worried about Monday’s decision for two reasons. For starters, he doesn’t think prior restraint is the appropriate remedy.

And “it will be almost impossible to clearly define the kind of speech that is prohibited in a way that will give adequate constitutional notice to the person you’re trying to restrain,” Palefsky said. “Its like capturing gas. It’s going to be hard to do.”

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Times staff writer Henry Weinstein contributed to this story.

* NO SHIELD FOR CAR MAKERS

The state Supreme Court has ruled that car makers are not shielded by Proposition 213. A3