Justices Let Stand Ruling on Slurs

In a victory for workplace civility over freedom of speech, the Supreme Court on Monday let stand a California judge’s order that bars a supervisor from uttering ethnic slurs at work around Latino employees.

In an 8-1 vote, the justices refused to hear an appeal from the Avis Rent a Car System, which insisted that the prohibition on “derogatory racial and ethnic epithets” is unconstitutional and violates the 1st Amendment.

Monday’s court action sets no binding national precedent, but it leaves intact a state ruling that gives judges the power in some instances to regulate what words can be spoken in the workplace.

The outcome is consistent with rulings over the last decade when anti-bias laws have trumped the right to free speech. In the workplace, unlike on the street, offensive speech can be limited, the courts have said.

From the beginning, the Avis case was closely watched because it clearly pitted two cherished American values: the right to equal treatment in the workplace and the right to free speech.

In 1993, 17 Latino employees who worked for Avis at San Francisco International Airport sued their employer over the actions of supervisor John Lawrence. They said that he verbally harassed them with obscenities, racial slurs and comments about their lack of English-language skills. It is not clear exactly what words he used since the lawyers filing the appeal chose not to include the trial transcript.

When the trial ended, a jury in San Francisco ruled for the Latino employees and awarded them a total of $135,000 in damages.

Avis had taken no disciplinary action against Lawrence and had kept him in the same job. In response, lawyers for the workers asked the judge to prohibit Lawrence from using the same kind of slurs in the future.

In 1995, Judge Carlos Bea agreed that there was a “substantial likelihood” that Lawrence would harass workers in the future, and he issued an injunction that says: “Defendant John Lawrence shall cease and desist from using derogatory racial or ethnic epithets directed at, or descriptive of, Hispanic/Latino employers of Avis Rent a Car System Inc., and shall further refrain from any uninvited touching of said employees.” If Lawrence violates this order, he could be fined or even imprisoned for contempt of court.

Lawyers for Avis challenged the order as “astounding” and said that it creates a major exception to the 1st Amendment just “because racially derogatory speech in the workplace may happen to offend someone.”

A state appeals court upheld the order but made clear that it applied only to the workplace.

Last year, the California Supreme Court also upheld the judge’s order on a 4-3 vote. It ruled that such orders are necessary sometimes to enforce the state’s anti-discrimination laws. “Continual use of racist epithets poisons the atmosphere of the workplace,” the state court said.

“A remedial injunction prohibiting the continued use of racial epithets in the workplace does not violate the right to freedom of speech,” wrote state Chief Justice Ronald George, if it is shown that those words will create “a hostile or abusive work environment and therefore will constitute employment discrimination.”

In appealing to the Supreme Court, Avis said that it was concerned about the precedent of making “bad words” a basis for criminal penalties.

“We thought it was preposterous to say anyone could go to jail in this country for what they say. This is a pure prohibition on speech,” said Jo Anne Dellaverson, a San Francisco lawyer for Avis.

But only Justice Clarence Thomas voted to take up the appeal. “The unprecedented injunction entered by the courts below . . . very likely suppresses fully protected speech,” he said in a eight-page dissent.

Although the Avis case (Avis vs. Aguilar, 99-781) concerned racial slurs, disputes over the legal status of workplace speech have arisen most often in cases of sexual harassment. Since 1986, the Supreme Court has said that employers can be forced to pay damages under anti-discrimination laws for making sexist and demeaning comments to female employees. The 1st Amendment’s freedom of speech has not shielded the violators.

The Avis case goes one step further, as Thomas noted, because the judge’s order outlaws such speech in the future. In past rulings, the high court has been skeptical of so-called prior restraints on speech.

Patricia Shiu, a San Francisco lawyer who represented the workers, praised the action. “This was a case of serious racial harassment by a managerial employee. And without this restraint, he would continue to engage in the same harassment,” said Shiu. “The authority of the court to deter that kind of behavior is critical to achieving the goal of an equal workplace.”

In her brief to the court, she pointed out that the 1st Amendment has never been an absolute shield, since people can be prosecuted for making threats, publishing obscene material, defaming others, fixing prices or making fraudulent promises.

UCLA Professor Eugene Volokh, who has closely tracked cases involving workplace speech, said that he expects the Supreme Court to take up the issue in the future.

“This was an easier case for restricting speech because it involved racial slurs. It doesn’t tell us how they will view offensive jokes, for example,” he said. “I’m also glad one Supreme Court justice sent a signal there is a 1st Amendment issue here.”