Lead Opinion
A jury found that defendants had engaged in employment discrimination, in part by permitting plaintiffs to be the target of racial epithets repeatedly spoken by a fellow employee. In addition to awarding damages, the trial court issued an injunction prohibiting the offending employee from using such epithets in the future. Defendants argue that such an injunction constitutes a prior restraint that violates their constitutional right to freedom of speech. For the reasons that follow, we hold that a remedial injunction prohibiting the continued use of racial epithets in the workplace does not violate the right to freedom of speech if there has been a judicial determination that the use of such epithets will contribute to the continuation of a hostile or abusive work environment and therefore will constitute employment discrimination.
I
The present appeal is from a judgment awarding damages and injunctive relief. Defendants have not provided a reporter’s transcript of the trial proceedings, and have elected to proceed by means of an appendix in lieu of a clerk’s transcript. We glean the following from this rather limited record.
In a first amended complaint dated April 26, 1993, 17 Latino employees of Avis Rent A Car System, Inc., sued Avis and 10 named individuals, alleging causes of action for employment discrimination in violation of the Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.),
The complaint alleged that plaintiffs were employed by Avis as “drivers,” at its San Francisco airport facility, to move Avis vehicles among parking lots and from one airport location to another. Defendant John Lawrence was “the service station manager at the SFO AVIS location and was authorized to direct and control the drivers.” The complaint alleged that Lawrence “verbally harassed [plaintiffs] constantly. He routinely called only the Latino drivers ‘motherfuckers’ and other derogatory names, and continually demeaned them on the basis of their race, national origin and lack of English language skills.” (Italics in original.) Defendant Kathy Black was alleged to have conducted a discriminatory investigation into the suspected theft of a calculator from a rental vehicle, detaining and questioning only Latino employees. In the course of this inquiry, a police officer was summoned and
On October 27, 1994, the jury returned special verdicts, finding as follows: Plaintiffs Ramiro Hernandez, German Lazo, Oswaldo Ramirez, Carlos Reyes, and Mario Serrano were harassed or discriminated against by a supervisor, Black. Each of these plaintiffs was awarded damages in the amount of $15,000. Plaintiffs Pedro Mojica and Orlando Peraza were harassed or discriminated against by Black and Lawrence. Avis knew or should have known of Lawrence’s conduct with respect to these employees and took no action. Mojica and Peraza each was awarded damages in the amount of $25,000. Plaintiff Marcos Recinos was harassed or discriminated against by Black and Lawrence, but Avis did not know, nor should it have known, about Lawrence’s conduct with respect to him. Recinos was awarded damages in the amount $25,000. Plaintiff Miguel Fonseca was harassed or discriminated against by Lawrence. Avis knew or should have known of Lawrence’s conduct with respect to Fonseca and took no action, but Fonseca did not suffer severe emotional distress, and the jury awarded no damages.
On December 15, 1994, a hearing was held to consider plaintiffs’ request for injunctive relief. Defendants argued there was no evidence of ongoing harm, nor any danger of ongoing harm, and the court responded: “Well, there was evidence presented sufficient for the jury to find that ... as to four plaintiffs who were working there, all of whom had a common characteristic, that is, that they were Latinos or members of Hispanic Latino racial ancestry, Lawrence had engaged in acts of harassment so continual and severe as to alter the working conditions for those people there, because that was the statutory test; [^] Secondly, that Avis knew or should have known of that harassment. It may be that the bringing of the action at the Department of Fair Employment and Housing and the action here had a chilling effect on the harassment. But I want to make sure that that chilling effect survives the end of this process.”
The court further stated during the hearing: “Well, the court is making a finding of fact based on evidence observed during the trial, that based on the evidence showing harassment and discrimination to the extent already commented on by Mr. Lawrence, there’s a substantial likelihood based on his actions that he will do so in the future unless restrained.”
On February 14, 1995, the court entered judgment awarding damages against Avis in the amount of $15,000 each to Hernandez, Lazo, Ramirez, Reyes, and Serrano, and damages against Avis and Lawrence jointly and
The injunction further ordered Avis to post certain notices advising employees to report any instances of discriminatory or harassing conduct by Avis or its employees and to “publish a policy statement in English and Spanish delineating employee rights and manager responsibilities with regard to employee complaints of racial or national origin harassment or discrimination . . . .”
Defendants appealed “from the mandatory and prohibitory injunction portion of the Judgment,” providing the Court of Appeal with the reporter’s transcript of the posttrial hearing at which the injunction was issued, but not providing the court with a reporter’s transcript of the trial proceedings. Defendants further elected to prepare an appellants’ appendix in lieu of a clerk’s transcript.
The Court of Appeal concluded “that to the extent the injunction prohibits Lawrence from continuing to use racist epithets in the workplace it is constitutionally sound, but to the extent it reaches beyond the workplace it improperly exceeds the scope of the FEHA violation sought to be prevented and must be modified accordingly.” The Court of Appeal reversed the injunctive portion of the judgment and remanded the case to the trial court with directions to “redraft the injunction in a manner that . . . limits its scope to the workplace.” In response to defendants’ argument that the injunction’s prohibition of the use of “derogatory racial or ethnic epithets” was vague, the Court of Appeal further ordered the trial court to add “an exemplary list of prohibited derogatory racial or ethnic epithets, specifying epithets such as those actually used in the workplace by Lawrence” in order to “more precisely warn Lawrence and Avis what is forbidden.” Plaintiffs
II
The FEHA declares “as the public policy of this state that it is necessary to protect and safeguard the right and opportunity of all persons to seek, obtain, and hold employment without discrimination or abridgment on account of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, or age.” (§ 12920.) “This court has declared that policy to be ‘fundamental.’ ” (Brown v. Superior Court (1984)
One form of employment discrimination is harassment on the basis of race or national origin. Section 12940, subdivision (h)(1), states that it is unlawful “[f]or an employer ... or any other person, because of race . . . [or] national origin ... to harass an employee or applicant. Harassment of an employee or applicant by an employee other than an agent or supervisor shall be unlawful if the entity, or its agents or supervisors, knows or should have known of this conduct and fails to take immediate and appropriate corrective action.”
Verbal harassment in the workplace also may constitute employment discrimination under title VII of the Civil Rights Act of 1964 (42 U.S.C.
Of course, not every utterance of a racial slur in the workplace violates the FEHA or Title VII. As the United States Supreme Court has recognized in the context of sexual harassment: “[N]ot all workplace conduct that may be described as ‘harassment’ affects a ‘term, condition, or privilege’ of employment within the meaning of Title VII. [Citations.] For sexual harassment to be actionable, it must be sufficiently severe or pervasive ‘to alter the conditions of [the victim’s] employment and create an abusive working environment.’ [Citation.]” (Meritor Savings Bank v. Vinson, supra, 477 U.S. 57, 67 [
California courts have adopted the same standard in evaluating claims under the FEHA. In rejecting an FEHA claim that alleged acts of sexual harassment directed toward other women had created a hostile work environment for the plaintiff, the Court of Appeal in Fisher v. San Pedro Peninsula Hospital (1989)
In the present case, Avis and Lawrence do not contest the validity of that portion of the judgment awarding monetary damages against them. They concede that the jury’s findings that they violated the FEHA are supported by substantial evidence and they do not claim that the damage award violates the First Amendment. For purposes of this case, therefore, it is established that Lawrence’s conduct created a hostile or abusive work environment for plaintiffs on the basis of race, and that Avis properly was held liable for knowingly failing to prevent this misconduct by Lawrence.
IH
Avis and Lawrence challenge only that portion of the judgment awarding injunctive relief. It is beyond question that, in general, both the Department of Fair Employment and Housing and courts enforcing the FEHA are empowered not only to redress past instances of employment discrimination, but to prevent a recurrence of such misconduct. Section 12920 states that the purpose of the FEHA is “to provide effective remedies which will eliminate” employment discrimination. Section 12920.5 adds: “In order to eliminate discrimination, it is necessary to provide effective remedies that will both prevent and deter unlawful employment practices and •redress the adverse effects of those practices on aggrieved persons.” Accordingly, if the Fair Employment and Housing Commission finds that an employer has engaged in an unlawful practice, it may order the employer “to cease and desist from the unlawful practice.” (§ 12970, subd. (a).) Further, the Commission may order “[affirmative or prospective relief to prevent the recurrence of the unlawful practice.” (§ 12970, subd. (a)(5).) Similarly,
Avis and Lawrence argue initially that the injunction was unnecessary, because the record does not demonstrate that “Lawrence used words that are constitutionally prescribable.” As noted above, the jury determined that Lawrence’s conduct violated the FEHA, and defendants concede that this finding is supported by substantial evidence. The record before this court does not reveal the precise words used by Lawrence, because defendants elected not to provide a reporter’s transcript of the trial proceedings. We reject defendants’ claim, therefore, because they failed to provide this court with a record adequate to evaluate this contention. (Ballard v. Uribe (1986)
Defendants also argue that the injunction was unnecessary because the record does not demonstrate that Lawrence “engaged in ongoing conduct that arguably might justify injunctive relief.” The trial court found to the contrary, stating: “[T]he court is making a finding of fact based on evidence observed during the trial, that based on the evidence showing harassment and discrimination to the extent already commented on by Mr. Lawrence, there’s a substantial likelihood based on his actions that he will do so in the future unless restrained.” In order to prevail on this claim, defendants must show that this finding is not supported by substantial evidence. But, as noted above, defendants elected not to provide a reporter’s transcript of the trial proceedings. Accordingly, they have no basis upon which to argue that the evidence adduced at trial was insufficient to support the trial court’s finding that injunctive relief was necessary to prevent a continuation of defendants’ unlawful conduct.
Defendants claim we must conclude that injunctive relief is unnecessary, because it appears from the trial court’s comments that Lawrence had ceased his unlawful conduct during the pendency of the present proceedings. The trial court rejected this contention, observing that “[i]t may be that the bringing of the action at the Department of Fair Employment and Housing and the action here had a chilling effect on the harassment,” and finding that “based on the evidence showing harassment and discrimination [by Mr. Lawrence] to the extent already commented on . . . , there’s a substantial likelihood based on his actions that he will do so in the future unless
“[M]any courts have rejected arguments against injunctive relief where defendants changed their practices only in response to being sued.” (2 Lindemann, Employment Discrimination Law (3d ed. 1996) ch. 40, p. 1748, fn. omitted.) “Generally, a person subjected to employment discrimination is entitled to an injunction against future discrimination, [citation], unless the employer proves it is unlikely to repeat the practice, [citations]. . . . An employer that takes curative actions only after it has been sued fails to provide sufficient assurances that it will not repeat the violation to justify denying an injunction.” (E.E.O.C. v. Goodyear Aerospace Corp. (9th Cir. 1989)
IV
Avis and Lawrence further claim that the injunction is invalid because it is a prior restraint that violates their rights to free speech guaranteed by the First Amendment to the federal Constitution, and article I, section 2, of the California Constitution. We first consider defendants’ claims under the federal Constitution.
A.
The First Amendment to the United States Constitution states: “Congress shall make no law . . . abridging the freedom of speech . . . .” This fundamental right to free speech applies to the states through the Fourteenth
Although stated in broad terms, the right to free speech is not absolute. (Near v. Minnesota (1931)
This reasoning applies equally when spoken words, either alone or in conjunction with conduct, amount to employment discrimination. As already noted, the United States Supreme Court has held that the use of racial epithets that is sufficiently severe or pervasive constitutes “employment discrimination” in violation of Title VII (Harris v. Forklift Systems, Inc.,
Justice Werdegar’s concurring opinion asserts that we fail to “address . . . a critical preliminary question, that is, whether the First Amendment permits imposition of civil liability under FEHA for pure speech that creates a racially hostile or abusive work environment,” and asserts that this issue takes us “into uncharted First Amendment waters.” (Conc. opn. of Werdegar, J., post, at pp. 147-148.) To the contrary, as noted above, we conclude that it is clear from the high court’s decisions in Harris, Meritor, and R.A.V., that the First Amendment permits imposition of civil liability for past instances of pure speech that create a hostile work environment. Defendants do not argue otherwise. The sole issue in the present case is whether the First Amendment also permits the issuance of an injunction to prohibit the continuation of such discriminatory actions.
In Kingsley Books, Inc. v. Brown (1957)
In Times Film Corp. v. Chicago (1961)
The decision in Freedman v. Maryland (1965)
In Paris Adult Theatre I v. Slaton (1973)
In Pittsburgh Press Co. v. Human Rel. Comm’n, supra,
The court in Pittsburgh Press Co. then addressed the argument that the order forbidding the newspaper from publishing the advertisements in gender-designated columns was a prohibited prior restraint on expression. The high court, first noting that it never had held that all injunctions against newspapers were impermissible, stated: “The special vice of a prior restraint is that communication will be suppressed . . . before an adequate determination that it is unprotected by the First Amendment. [^] The present order does not endanger arguably protected speech. Because the order is based on a continuing course of repetitive conduct, this is not a case in which the Court is asked to speculate as to the effect of publication. [Citations.] Moreover, the order is clear and sweeps no more broadly than necessary. And because no interim relief was granted, the order will not have gone into effect before our final determination that the actions of Pittsburgh Press were unprotected.” (
The foregoing high court decisions recognize that once a court has found that a specific pattern of speech is unlawful, an injunctive order prohibiting the repetition, perpetuation, or continuation of that practice is not a prohibited “prior restraint” of speech. (Kramer v. Thompson (3d Cir. 1991)
A persuasive discussion is found in Auburn Police Union v. Carpenter (1st Cir. 1993)
By parity of reasoning, the pervasive use of racial epithets that has been judicially determined to violate the FEHA is not protected by the First
B.
Defendants also argue that the injunction violates the California Constitution. Article I, section 2, subdivision (a), of the California Constitution states: “Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right. A law may not restrain or abridge liberty of speech or press.” Avis and Lawrence rely heavily on a decision of this court, handed down more than a century ago, interpreting an earlier version of this provision.
In Dailey v. Superior Court (1896)
The above quoted language in Dailey cannot be interpreted as broadly as defendants suggest, to prohibit a court, under all circumstances, from enjoining “speech.” The circumstances in Dailey involved a true prior restraint in which the superior court had prohibited the production of a play prior to its first performance simply because the play was based upon the circumstances of a pending criminal case. The court in Dailey was not faced with the question whether an injunction prohibiting the continuation of conduct that has been judicially determined to be unlawful constitutes a prior restraint. Dailey, therefore, does not support the position that the injunction in the present case constitutes an invalid prior restraint. (Ginns v. Savage (1964)
Recent decisions of this court demonstrate that we have not adopted the rule advocated by defendants, that any injunction impinging upon the right of free expression constitutes an invalid prior restraint. In Wilson v. Superior Court (1975)
In Goldin v. Public Utilities Commission (1979)
Most recently, in People ex rel. Gallo v. Acuna (1997)
Under the California Constitution, as under its federal counterpart, the injunction in the present case thus does not constitute a prohibited prior
V
Defendants further claim that, even if some injunctive relief against future racial epithets is permissible, the order in this case is invalid because it is overly broad. As noted above, one provision of the injunction prohibited defendant Lawrence from “using any derogatory racial or ethnic epithets directed at, or descriptive of, Hispanic/Latino employees of Avis Rent A Car System, Inc. . . .” The Court of Appeal upheld this provision to the extent it prohibited Lawrence “from continuing to use racist epithets in the workplace,” but ruled that, to the extent the prohibition applied to conduct outside the workplace, “it improperly exceeds the scope of the FEHA violation sought to be prevented and must be modified accordingly.” In further response to defendants’ claim, the Court of Appeal additionally restricted the injunction by directing the trial court to add to the injunction “an exemplary list of prohibited derogatory racial or ethnic epithets, specifying epithets, such as those actually used in the workplace by Lawrence” in order to “more precisely warn Lawrence and Avis what is forbidden.” Because neither plaintiffs nor defendants have sought review of those limitations of the scope of the injunction, their validity is not before us and we express no opinion on that matter.
Defendants assert that, even as modified by the Court of Appeal, the injunction is overly broad because it enjoins Lawrence from employing racially derogatory terms ‘.‘descriptive of’ Avis’s Hispanic employees, even outside the hearing of those employees.
Defendants argue that the use of racial epithets outside the hearing of Hispanic employees does not contribute to a hostile work environment if the audience does not find the speech unwelcome and the subjects of the racial invective are unaware they are being maligned. The Court of Appeal disagreed, stating: “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.”
The United States Supreme Court has held that an injunction that imposes a content-neutral restriction upon expression must “burden no more speech
Because defendants elected not to provide a transcript of the trial proceedings, we have no basis upon which to conclude that, in the particular circumstances of this case, it was unnecessary to prohibit the use of the racial epithets even outside the hearing of plaintiffs, in order to prevent a continuation of the hostile work environment. It certainly is possible that the use of racial epithets even outside the hearing of plaintiffs would contribute to an atmosphere of racial hostility that would perpetuate the hostile work environment created by defendants. Nothing in the limited record before us suggests that the injunction was more burdensome than necessary to prevent future violations of the FEHA.
VI
The judgment of the Court of Appeal is affirmed.
Baxter, J., and Chin, J., concurred.
Notes
All further statutory references are to the Government Code, unless otherwise specified.
Avis and Lawrence move to augment the record on appeal with a document entitled “Jury Instruction No. 23” that states, in pertinent part, that “John Lawrence is not a supervisor of Avis.” Plaintiffs object on the ground, among others, that this motion is untimely. We deny the motion to augment the record, but observe that it does not appear from the special verdicts that the jury found that Lawrence was a “supervisor” of plaintiffs within the meaning of section 12940, subdivision (h)(1).
The question whether, and to what extent, the regulation of speech that constitutes racial or sexual harassment may violate the First Amendment has been the subject of scholarly debate. (Compare Browne, Title VII as Censorship: Hostile-Environment Harassment and the First Amendment (1991) 52 Ohio St. LJ. 481 and Gerard, The First Amendment in a Hostile Environment: A Primer on Free Speech and Sexual Harassment (1993) 68 Notre Dame L.Rev. 1003, with Comment, Freedom of Speech and Workplace Harassment (1992) 39 UCLA L.Rev. 1791 and Sangree, Title VII Prohibitions Against Hostile Environment Sexual Harassment and the First Amendment: No Collision in Sight (1995) 47 Rutgers L.Rev. 461.) Because defendants have not challenged the finding that their past conduct amounted to unlawful employment discrimination in violation of the FEHA, we need not, and do not, address that broad issue here.
Relying upon the decision in R.A.V. v. St. Paul, supra,
The concurring opinion cites several law review articles for the proposition that “the question [whether the First Amendment permits imposition of civil liability for pure speech that creates a hostile work environment] is one of considerable debate among First Amendment scholars” (cone. opn. of Werdegar, J., post, at p. 148, fn. omitted), but the controversy reflected in the cited articles has a different focus. Although there is considerable academic debate concerning the extent to which sexually and racially discriminatory speech may be regulated, consistent with the First Amendment, with a single exception every scholar cited by the concurring opinion agrees that, in some circumstances, pure speech that violates Title VII is not protected by the First Amendment.
Professor Sangree believes “that hostile environment law passes First Amendment scrutiny” and “concludes that while debate concerning the parameters of protected speech and unlawful discrimination can clarify why hostile environments are prohibitable, Title VII protections should not be curtailed.” (Sangree, Title VII Prohibitions Against Hostile Environment Sexual Harassment and the First Amendment: No Collision in Sight, supra, 47 Rutgers L.Rev. 461, 465, 479.) Professor Strauss discusses at length the extent to which “sexist speech” in the workplace is protected by the First Amendment, but has no difficulty concluding that speech that violates Title VII is not protected: “Once the plaintiff alleges a cause of action under Title VII, and demonstrates a discriminatory intent or effect, the employer cannot successfully defend on first amendment grounds.” (Strauss, Sexist Speech in the Workplace (1990) 25 Harv. C.R.-C.L. L.Rev. 1, 43.) Professor Volokh concludes that only the prohibition of “undirected” speech that contributes to the creation of a hostile work environment would offend the First Amendment: “Liability could be imposed not for any speech that creates a hostile work environment, but only for speech that the speaker knows is offensive, that is directed at an employee because of her race, sex, religion, or national origin, and creates (together with whatever other nonspeech conduct might be present) a hostile work environment.” (Comment, Freedom of Speech and Workplace Harassment, supra, 39 UCLA L.Rev.' 1791, 1846, fn. omitted.) Professor Fallon states: “After Harris ... it is virtually inconceivable that the Supreme Court might hold that the First Amendment forbids the imposition of Title VII liability for a broad category of sexually harassing speech. Some trimming of the cause of action remains possible, but it is highly unlikely that workplace expressions of gender-based hostility and communications of explicitly sexual messages will
As explained above, in this case we have no occasion to address the issue on which these commentators are divided, because defendants have not provided a record that discloses the precise nature or extent of the racial epithets and insults that were found by the jury to have created a racially abusive working environment, and because defendants do not contend that the past racial epithets and insults, found by the jury, comprise constitutionally, protected speech for which no damage award may be imposed. None of the cited law review articles specifically address the much narrower issue presented by this case, namely whether, once it has been judicially determined that a racially abusive working environment has been created by pervasive racial epithets and insults, a court may enjoin the offending employee from uttering similar racial epithets in the future that will perpetuate the discriminatory abusive environment.
Justice Brown’s dissenting opinion quotes numerous decisions that eloquently explicate the unquestioned proposition that the First Amendment protects the expression of ideas that are reviled as well as those that are revered. But just as it is perfectly clear that the First Amendment does not protect an individual’s right to commit treason (or, for that matter, securities fraud) through the use of the spoken word, it is equally clear that the First Amendment does not protect an employer’s or employee’s right to engage in employment discrimination through the use of the spoken word. An employer that posted a “Whites Only” sign outside its workplace could not claim that the First Amendment right of free expression shielded its “speech” from the reach of a law prohibiting racial discrimination in employment (cf. Pittsburgh Press Co. v. Human Rel. Comm’n (1973)
In Central Hudson Gas & Elec. v. Public Serv. Comm’n (1980)
In a variety of contexts, courts have upheld injunctions prohibiting the continuation of a course of expressive conduct that violates a specific statutory prohibition. (Vendo Co. v. Lektro-Vend Corp. (1997)
Justice Kennard’s dissenting opinion suggests that the injunction is necessarily overbroad because it is not limited to the type of repeated or pervasive racial epithets that must initially be shown in order to establish the creation of an abusive or hostile work environment. The dissent cites no authority, however, to support the proposition that once it has been established that the existence of sufficiently severe or pervasive racial insults or epithets in a workplace already has created an abusive work environment, a court may not enjoin the offending party from perpetuating the abusive environment by continuing to use such racial insults or epithets in the future.
As a general matter, when a repeated course of conduct has been found to constitute a nuisance or unlawful employment practice, a court is authorized to enjoin future individual acts that are likely to continue or perpetuate the nuisance or unlawful practice. In E.E.O.C. v. Wilson Metal Casket Co. (6th Cir. 1994)
Thus, although a single use of a racial epithet, standing alone, would not create a hostile work environment, once the jury had determined that a pervasive pattern of such use had created a hostile work environment, the trial court in this case did not abuse its discretion in concluding that each additional instance would perpetuate the hostile environment and should be enjoined.
Concurrence Opinion
This case presents the collision of two very basic values protected by the United States Constitution. The first is to live one’s life free of racial discrimination. (U.S. Const., Amend. XIV.) The second is to speak one’s mind free of government censorship. (U.S. Const., Amend. I.) The trial court balanced these two bedrock constitutional principles to conclude defendant John Lawrence validly could be enjoined from engaging in a form of speech a jury found was in violation of the Fair Employment and Housing Act. (Gov. Code, § 12900 et seq. (hereafter FEHA).) A divided Court of Appeal affirmed the trial court judgment, but remanded the case to the trial court with directions to narrow the terms of the injunction by limiting it to the workplace and to provide an exemplary list of prohibited words.
To the extent the plurality opinion affirms the judgment of the Court of Appeal, and with my understanding of the purpose and context of the “exemplary list” of words (see post, at p. 169, fn. 9), I concur.
As I explain, despite the absence of any direct United States Supreme Court authority finding speech creating a hostile work environment falls outside the protection of the First Amendment, existing high court decisions provide strands of analysis that, woven together, produce a coherent theory that explains why the injunction in this case does not violate defendant Lawrence’s First Amendment rights.
I
At the outset, I note the appellate record in this case is woefully inadequate. Defendants proceeded in this appeal by relying on an appellants’ appendix in lieu of a clerk’s transcript. This is a permissible choice under the
Even if defendants took this risk willingly, for an appellate court to adjudicate an important First Amendment case on such a sketchy record is unfortunate. Were we apprised of the nature and frequency of Lawrence’s verbal outbursts against plaintiffs, perhaps we would find his speech did not actually create a hostile work environment, thereby rendering resolution of this important constitutional issue unnecessary. (See People v. Hernandez (1998)
Lacking a record that would resolve these questions, we must decide the case as we find it. I proceed now to explain briefly why I find the plurality opinion’s analysis unsatisfactory; I next put forth a different analysis supportive of the judgment.
n
From the abbreviated record provided by defendants, we may discern that the jury found defendant Lawrence created a hostile work environment by
By taking this approach, the plurality opinion never establishes the speech at issue in this case is unprotected by the First Amendment. Although the opinion declares that under “well-established law” the injunction is not an 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” (plur. opn., ante, at p. 138), as discussed at greater length hereafter (post, at pp. 152-155), I can locate no authority from this court or the United States Supreme Court that concludes speech in the workplace that creates a racially hostile work environment, standing alone, can be made the basis of civil liability (under either FEHA or the similar federal law, title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e et seq.) (hereafter title VII)
The plurality opinion’s implicit assumption that a legislative body can validly pass a statute having the effect of removing constitutional protection from speech is unfounded. For example, the mere fact Congress has decreed (by enacting title VII) that the creation of an abusive or hostile work environment violates federal law does not necessarily mean racial speech creating such a work atmosphere is unprotected by the First Amendment. Congress cannot, by legislation, change the scope of one’s First Amendment rights. (United States v. Eichman (1990)
In sum, by relying on the jury’s finding that defendants were liable for violating FEHA, together with defendants’ failure to challenge that finding on appeal, the plurality opinion attempts to resolve this case without deciding the critical First Amendment question involved. In contrast, I believe we must confront the fundamental preliminary question whether speech creating a racially hostile work environment is protected by the First Amendment. I now turn to that question.
IH
I begin my analysis with the recognition that we must assume for purposes of this appeal that defendant Lawrence engaged in a pervasive practice of hurling racially tinged insults at Latino workers, singling them out as the recipients of his offensive epithets. Defendant Avis Rent A Car System, Inc., Lawrence’s employer, tolerated this outrageous workplace behavior and was thus complicit in the creation of a racially hostile and abusive work environment. Though I assume the majority of persons finds such words distasteful, their utterance nevertheless is generally protected by the free speech guarantee of the First Amendment to the United States Constitution. If Lawrence’s invective would not have caused a reasonable person to react with violence (Chaplinsky v. New Hampshire, supra,
It is true Lawrence chose to express himself in a rude and provocative manner, inevitably producing feelings of anger, hostility and humiliation in
What, then, of the rights of the Latino workers, who were the unwilling targets of Lawrence’s racial invective? Do they have the right not to listen, a right to work free of racial discrimination and intimidation? Do Lawrence’s First Amendment rights trump their rights? Most fundamentally, do Lawrence’s racially offensive epithets come within the protection of the First Amendment?
A. The Relevance of R.A.V. and Harris
As noted, ante, nothing in the decisions of the Supreme Court provides definitive guidance on whether racist speech at the workplace that is so pervasive and constant that it creates a hostile and abusive work environment is protected by the First Amendment’s guarantee of freedom of speech. Hints from two decisions, however, suggest the high court considers such speech outside the protective scope of the First Amendment.
In 1992, the Supreme Court held the City of St. Paul’s municipal ordinance banning certain hate speech was unconstitutional. (R. A. V. v. St. Paul
The justices concurring separately in the R.A.V. decision expressed concern that the majority’s rationale called into question the constitutionality of sexual harassment claims under title VII, which declares it “an unlawful employment practice for an employer ... to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” (42 U.S.C. § 2000e-2(a)(l).) Thus, Justice White, writing for four justices, stated that “[u]nder the broad principle the Court uses to decide the present case, hostile work environment claims based on sexual harassment should fail First Amendment review . . . .” (R.A.V., supra, 505 U.S. at pp. 409-410 [
Addressing this question, Justice Scalia replied that title VII claims did not come within the ambit of the majority’s analysis: “since words can in some circumstances violate laws directed not against speech but against conduct (a law against treason, for example, is violated by telling the enemy the Nation’s defense secrets), a particular content-based subcategory of a prescribable class of speech can be swept up incidentally within the reach of a statute directed at conduct rather than speech. [Citations.] 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, [citations].” (R.A.V., supra,
Of course, R.A.V. did not involve a title VII claim and thus its pronouncement on whether such a claim would survive under the First Amendment is dictum. Moreover, what Justice Scalia was referring to when he explained that, in addition to fighting words, some “other words” could produce a constitutionally valid hostile work environment claim under title VII is
The next year, the Supreme Court gave a further hint of its views when it decided Harris v. Forklift Systems, Inc. (1993)
It was not to be. The Supreme Court in Harris simply found that, where an abusive and hostile work environment is created in violation of title VII, the plaintiff’s entitlement to relief is not dependent on her ability to show she suffered psychological injury. (Harris, supra,
The question thus remains open.
B. Speech in the Workplace
Of course, speech is not wholly protected from government regulation in all places; the location of the speech is relevant to the degree of protection, if any, the speech will receive under the First Amendment. (Frisby v. Schultz (1988)
For example, speech uttered in a traditional public forum is afforded the highest degree of protection from state regulation. (Perry Ed. Assn. v. Perry Local Educators’ Assn. (1983)
Speech may occur in nonpublic fora as well, but in such cases the government is permitted to place reasonable restrictions on speech, even based on its content. (See Jones v. North Carolina Prisoners’ Union (1977)
The intersection of an individual’s place of employment and his or her free speech rights also appeared in CSC v. Letter Carriers (1973)
Thus, in order to vindicate sufficiently weighty public policies governing the workplace, the high court has in the past found the First Amendment rights of employees must sometimes give way. In the cases described above, however, the government directly restricted the speech of public employees. Not so with NLRB v. Gissel Packing Co. (1969)
As pertinent here, the National Labor Relations Board (NLRB) found Sinclair Company’s communications with its workers violated section 8(a)(1) of the National Labor Relations Act, codified at 29 United States Code section 158(a): “It shall be an unfair labor practice for an employer— [H] (1) to interfere with, restrain, or coerce employees in the exercise of the
On certiorari before the Supreme Court, Sinclair Company argued that application of these rules to the speech of its president violated his First Amendment rights. The high court rejected the argument, reasoning that “[a]ny assessment of the precise scope of employer expression, of course, must be made in the context of its labor relations setting.” (Gissel, supra,
Of course, employees retain First Amendment rights while on the job (Rankin, supra,
Thus, Connick, Letter Carriers and Gissel demonstrate the Supreme Court’s recognition that strong public policies governing the workplace—
C. Employees Are a Captive Audience
In addition to high court authority recognizing free speech limitations at the workplace, another analytical strand that recurs frequently in Supreme Court decisions is relevant here. The Supreme Court has in a number of cases recognized that when an audience has no reasonable way to escape hearing an unwelcome message, greater restrictions on a speaker’s freedom of expression may be tolerated. Stated differently, even if the speaker enjoys the right to free speech, he or she has no corollary right to force people to listen.
The relevance of a captive audience to determining the scope of First Amendment protection of speech is exemplified by Frisby, supra,
The high court responded to similar concerns in Bethel School Dist. No. 403 v. Fraser (1986)
In addition to Frisby, Bethel School and Rowan, numerous other cases have cited an audience’s “captivity” as a factor justifying limitations on free speech. (FCC v. Pacifica Foundation (1978)
The relative captivity of plaintiffs here supports the restriction on defendant Lawrence’s speech. Plaintiffs were not present at their job because they wished to hear Lawrence’s particular views on their Latino heritage, but neither were they reasonably free to walk away when confronted with his
Most of the cases cited above concededly did not solely concern a captive audience. Frisby, Pacifica and Rowan relied in addition on the increased privacy interest in one’s home. (Frisby, supra, 487 U.S. at pp. 484-485 [
The applicability of the captive audience doctrine to harassing speech in the workplace is, moreover, debated by legal commentators. (Compare Volokh, Workplace Harassment, supra, 39 UCLA L.Rev. at pp. 1832-1843 [captive audience doctrine should not apply to the workplace], with Sangree,
D. The Injunction Here Is Similar to a Time, Place and Manner Regulation
A separate, but related, basis for countenancing an injunction in these circumstances is that an injunction restricting speech that creates a racially hostile work environment is analogous to a permissible time, place and manner restriction on speech. As a general matter, speech in even a traditional public forum may be subject to reasonable time, place and manner restrictions. (Perry, supra,
Time, place and manner rules generally have been applied to public and nonpublic fora. As a private employer’s place of business, defendants’ workplace is neither a public nor a nonpublic forum; it is private property. Nevertheless, the Supreme Court has “on at least one occasion applied [the time, place and manner doctrine] to conduct occurring on private property”
I begin with the state’s interest in restricting workplace speech that creates a racially hostile work environment. The state has announced that it is “the public policy of this state that it is necessary to protect and safeguard the right and opportunity of all persons to seek, obtain, and hold employment without discrimination or abridgment on account of race . . . .” (Gov. Code, § 12920.) The state recognizes that such 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 interest of employees, employers, and the public in general.” (Ibid.)
Of course, the elimination of racial discrimination, even by private parties or entities, has often been found to be a governmental interest of the highest order. (See, e.g., Edmonson v. Leesville Concrete Co. (1991)
Madsen v. Women’s Health Center, Inc. (1994)
The Supreme Court, although striking down other parts of the injunction, upheld the requirement of a 36-foot buffer zone, finding the limitation was a valid time, place and manner restriction on speech. As pertinent to the question here, the high court noted the “petitioners are not prevented from expressing their message in any one of several different ways; they are simply prohibited from expressing it within the 36-foot buffer zone.” (Madsen, supra,
The Supreme Court’s existing time, place and manner decisions admittedly do not wholly govern this case, for not only does this case not involve a public forum, the injunction here is not content-neutral. “The Supreme Court has stated repeatedly . . . that time, place, and manner regulations must be content neutral in order to receive deferential judicial review.” (Fallon, Sexual Harassment, supra, 1994 Sup. Ct. Rev. at pp. 16-17, fn. omitted.) “[The] principal inquiry in determining content neutrality is whether the government has adopted a regulation of speech ‘without reference to the content of the regulated speech.’ ” (Madsen, supra,
Whether the content-based nature of the injunction wholly disqualifies the time, place and manner doctrine from any application to this case need not be decided, however. Instead, it is sufficient to consider components of the doctrine as relevant to the overall assessment of whether the injunction violates defendant Lawrence’s First Amendment rights. When those components—a compelling state interest and alternative channels of communication—are considered together with the facts the speech sought to be enjoined occurred in the workplace and the recipients of the unwelcome speech were a captive audience, a strong case for upholding the injunction appears.
We must consider the implications of a contrary holding. The state’s interest in eradicating racial discrimination in the workplace is compelling, and the state has made a reasonable determination that such discrimination causes “domestic strife and unrest” and is harmful to “the interest of employees, employers, and the public in general.” (Gov. Code, § 12920.) The state’s interest is fully applicable to this case, as it is undisputed the speech in question occurred at the workplace where both plaintiffs and defendant Lawrence work. Plaintiffs do not wish to listen to Lawrence’s constant stream
Diverse interests are in play in this case, and balancing them is undeniably a difficult task. Were we to find the injunction violates Lawrence’s First
Balancing Lawrence’s First Amendment free speech rights with the equally weighty right of plaintiffs to be let alone at their jobsite, free of racial discrimination, I find the several factors coalescing in this case— speech occurring in the workplace, an unwilling and captive audience, a compelling state interest in eradicating racial discrimination, and ample alternative speech venues for the speaker—support the conclusion that the injunction, if sufficiently narrowed on remand to apply to the workplace only, will pass constitutional muster.
IV
Having found the injunction, properly narrowed on remand, would not violate the First Amendment, I reach the same result under the California Constitution. Article I, section 2, subdivision (a) of the state Constitution provides: “Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right. A law may not restrain or abridge liberty of speech or press.” We have in the past observed this state constitutional free speech guarantee is “[a] protective provision more definitive and inclusive that the First Amendment” (Wilson v. Superior Court (1975)
Although the First Amendment is written in absolute terms, it has not been so interpreted. The same is true for article I, section 2, subdivision (a) of the
As with the federal constitutional analysis set forth above, in the state constitutional analysis as well two powerful constitutional interests are at issue. In addition to the protection for one’s freedom to “speak, write and publish his or her sentiments on all subjects,” the state Constitution—like the Fourteenth Amendment to the federal Constitution—also mandates people not be “denied equal protection of the laws.” (Cal. Const., art. I, § 7, subd. (a).) Moreover, just as the state Constitution’s free speech guarantee provides greater protection than its federal counterpart, our state charter also provides heightened protection against racial discrimination in the workplace. Article I, section 8 provides “[a] person may not be disqualified from entering or pursuing a business, profession, vocation, or employment because of . . . race . . . .” It is thus no answer to observe that free speech rights are greater under the state Constitution, because the same document also grants greater protection against racial discrimination in the workplace. We are once again faced with a difficult balance between competing constitutional values.
The confluence of factors that justifies the limitation on defendant Lawrence’s speech under the First Amendment to the United States Constitution supports the same result under the California Constitution. For example, that a potential listener is unable to escape hearing an unwanted message has been cited as a significant factor in the evaluation of free speech rights in this state. In Braxton v. Municipal Court (1973)
Notwithstanding the heightened protection free speech rights enjoy under the state Constitution, time, place and manner restrictions are also recognized under our state charter. (Robins v. Pruneyard Shopping Center (1979)
As noted, the California Constitution itself recognizes the importance of eliminating racial discrimination in the workplace. (Cal. Const., art. I, § 8.) Our Legislature has similarly declared such workplace discrimination odious. (Gov. Code, § 12920 [FEHA]; see also Civ. Code, § 51 [“All persons within the jurisdiction of this state are free and equal, and no matter what their . . . race, ... are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.”].) This court has also observed that the “policy that promotes the right to seek and hold employment free of prejudice is fundamental.” (Commodore Home Systems, Inc. v. Superior Court (1982)
In short, I find defendants’ rights under the California Constitution do not compel the conclusion the injunction must be set aside.
V
When we leave our homes, we enter a hurly-burly world where we are sometimes required to endure the unpleasant and undesirable opinions and entreaties of others. Unfortunately, such unwelcome speech sometimes attacks us on the basis of our race, gender or ethnic heritage. (See, e.g., Brandenburg v. Ohio, supra,
The workplace is different from sidewalks and parks, however; workers are not so free to leave to avoid undesired messages. When employees are forced to endure racially harassing speech on the job, it is arguable that “substantial privacy interests are being invaded in an essentially intolerable manner.” (Cohen v. California, supra,
No single factor present in this case justifies the restraint on speech here; indeed, another case posing different facts may lead to a different conclusion. However, for all the reasons stated above, I conclude that Lawrence’s speech, even if constitutionally protected, may nevertheless be subject to the modest time and place restrictions discussed above, and that an injunction, properly narrowed on remand,
I also agree with the plurality opinion’s conclusion that the “secondary effects” doctrine does not control this case. (Plur. opn., ante, at p. 135, fn. 4.)
“There is a lively debate within First Amendment scholarship over the constitutional status of discriminatory verbal harassment, particularly in the workplace. A number of decisions finding harassment liability under Title VII have turned in whole or in part on what we would ordinarily recognize as ‘speech’; yet few courts have seriously considered the relevance of the First Amendment in this regard. The commentators have stepped into the judicial vacuum with gusto. Some commentators have argued that Title VII’s harassment law, as applied to nearly all speech, abridges the freedom of speech protected by the First Amendment. Others have defended harassment law as both necessary to workplace equality and entirely consistent with free speech principles and doctrine. Still others situate themselves at some point in the middle and advocate some restrictions on the application of Title VII to speech.” (Estlund, The Architecture of the First Amendment and the Case of Workplace Harassment (1997) 72 Notre Dame L.Rev. 1361, 1363-1364, fns. omitted.)
Harassment in the workplace is also prohibited by federal law. (42 U.S.C. § 2000e et seq.) “Although the wording of title VII differs in some particulars from the wording of FEHA, the antidiscriminatory objectives and overriding public policy purposes of the two acts are identical.” (Beyda v. City of Los Angeles (1998)
The law generally prohibiting prior restraints on speech is settled. “Any system of prior restraint . . . ‘comes to this Court bearing a heavy presumption against its constitutional validity.’ Bantam Books, Inc. v. Sullivan, [(1963)] 372 U. S. [58,] 70 [
The Harris majority at one point noted that whether a hostile or abusive work environment exists under title VII requires consideration of several factors, including whether the harassing conduct is severe “or a mere offensive utterance.” (Harris, supra,
Professor Fallon argues that after R.A.V., supra,
Indeed, private employers commonly place any number of restrictions on the speech of their employees, from requiring salespersons to speak well of an employer’s products to potential customers and instructing restaurant wait staff not to speak ill of the food they are serving, to requiring employees to keep trade secrets confidential.
“In determining what constitutes ‘sufficiently pervasive’ harassment, the courts have held that acts of harassment cannot be occasional, isolated, sporadic, or trivial, rather the plaintiff must show a concerted pattern of harassment of a repeated, routine or a generalized nature. [Citation.]” (Fisher v. San Pedro Peninsula Hospital (1989)
Insofar as the “exemplary list of prohibited derogatory racial or ethnic epithets,” which the appellate court directed the trial court to provide, is fashioned in the context of an injunction directed not against individual words per se, but the creation of, or perpetuation of, a racially hostile work environment, I concur in this limitation as well. Such a list should be intended as illustrative and explanatory, rather than prohibiting the mere utterance of specified words regardless of context. In this way, defendants will have additional notice what types of speech are prohibited by the injunction, reducing any potential vagueness that may inhere in an injunction that even partially restricts speech.
Dissenting Opinion
I dissent.
The plurality conclude that a remedial injunction under the Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.), banning a list
Both the First Amendment of the United States Constitution and article I, section 2, subdivision (a), of the California Constitution restrict the use of content-based prior restraints on speech. The order at issue here—enjoining any future use in the workplace of specified words—constitutes just such a prior restraint. It impermissibly restricts speech based on the mere assumption that these words will inevitably create a hostile and abusive work environment amounting to employment discrimination. Nor is this injunction salvaged by labeling it a restraint on conduct rather than speech.
The plurality’s error is particularly glaring because they are deciding this matter in a contextual vacuum, without the benefit of a factual record. They thus overlook the duty of an appellate court, where free speech rights are at stake, to independently review the trial court’s findings and the whole record to assure that any injunction is narrowly tailored and justified by compelling necessity. That duty is no less imperative in a matter involving speech in the workplace. As the United States Supreme Court recently emphasized: “The real social impact of workplace behavior often depends on a constellation of surrounding circumstances, expectations, and relationships which are not fully captured by a simple recitation of the words used or the physical acts performed.” (Oncale v. Sundowner Offshore Services, Inc. (1998)
Like my colleagues, I abhor discrimination in any form. But I feel equally strongly that we cannot use the instrumentality of the courts to penalize speech before we know what was said, to whom, and with what effect. It should be obvious that we may not do so in advance, based only on predictions of future harm.
I
The crux of the plurality opinion is that the injunction forbidding the use of a list of words does not amount to a prior restraint so long as it was issued
“The term ‘prior restraint’ is used ‘to describe administrative and judicial orders forbidding certain communications when issued in advance of the time that such communications are to occur.’ [Citation.] Temporary restraining orders and permanent injunctions—i.e., court orders that actually forbid speech activities—are classic examples of prior restraints.” (Alexander v. United States (1993)
According to the Chief Justice, the injunction passes constitutional muster because it simply precludes defendants from continuing their unlawful activity. It does more than that. It directly targets otherwise protected speech, forbidding any future use of a list of offensive words in the workplace—even outside the presence of plaintiffs and even if welcome or overtly permitted. Although the plurality opinion insists that it would prohibit an illegal course of conduct, in fact it regulates speech on the basis of expressive content. (See DeAngelis v. El Paso Mun. Police Officers Ass’n. (5th Cir. 1995)
Moreover, it is not true that any and all future use even of offensive epithets will necessarily amount to a continuation of the same unlawful activity. As the plurality opinion concedes, “not every utterance of a racial slur in the workplace violates the FEHA or Title VII [of the Civil Rights Act of 1964 (42 U.S.C. § 2000e et seq.)].” (Plur. opn., ante, at p. 130; see Fisher v. San Pedro Peninsula Hospital (1989)
The plurality opinion draws analogies to several United States Supreme Court decisions. None is in point.
Thus, the plurality opinion relies on several decisions involving limited injunctive remedies against the sale or exhibition of obscene materials, including Kingsley Books, Inc. v. Brown (1957)
The plurality opinion’s analogy to Pittsburgh Press Co. v. Human Rel. Comm’n (1973)
By contrast, the injunction at issue constitutes a broad prohibition touching on core protected speech. It applies to words that, although offensive,
Even assuming that the use of derogatory speech can amount to employment discrimination, I disagree that any future use even of slurs, vulgarity, or derogatory epithets in the workplace—even by a person who has previously engaged in employment discrimination—can constitutionally be proscribed. That is because the offensive content and effect of using any one, or more, of a list of verboten words cannot be determined in advance: “The question whether speech is, or is not, protected by the First Amendment often depends on the content of the speech. Thus, the line between permissible advocacy and impermissible incitation to crime or violence depends, not merely on the setting in which the speech occurs, but also on exactly what the speaker had to say. Similarly, it is the content of the utterance that determines whether it is a protected epithet or an unprotected ‘fighting comment.’ ” (Young v. American Mini Theatres (1976)
But we need look no farther than article I, section 2, subdivision (a), of the California Constitution to resolve this matter: “Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for abuse of this right. A law may not restrain or abridge liberty of speech or press.” As explained in the majority opinion I authored in Wilson v. Superior Court, supra,
California Constitution, article I, section 2, subdivision (a), plainly permits holding Lawrence and Avis responsible for abuse of the right, but not censorship by way of a prior restraint. “The wording of this section is terse and vigorous, and its meaning so plain that construction is not needed. The right of the citizen to freely speak, write, and publish his sentiments is unlimited, but he is responsible at the hands of the law for an abuse of that right. . . . It is patent that this right to speak, write, and publish, cannot be abused until it is exercised, and before it is exercised there can be no responsibility.” (Dailey v. Superior Court (1896)
As the dissenting opinion in the Court of Appeal below correctly observed: “Punishment for and suppression of speech are two very different things. . . . No California appellate court has ever held . . . that persons can be subjected to prior restraint on speech, and legally forbidden to speak on pain of fine or being sent to jail, for merely making rude or even immoral comments that might have bad effects on the listener.”
The plurality opinion also relies on Goldin v. Public Utilities Commission (1979)
Finally, the plurality opinion cites People ex rel. Gallo v. Acuna (1997)
The plurality express a concern that unless an injunction issues in this matter, plaintiffs will be confined to bringing repetitive lawsuits. I hope that
In any event, I disagree that the threat of repetitive litigation would be less effective in terms of avoiding future workplace discrimination by Avis than the possibility that an individual supervisor will be jailed for contempt. As the damages action in this matter demonstrates, speech may be subject to strong sanctions under FEHA if it amounts to employment discrimination. Faced with the high costs of defending against such suits—including compensatory damages, attorney fees, and punitive damages—employers like Avis are likely to regard it as a potent remedy indeed.
Ill
For the foregoing reasons, I would reverse the judgment of the Court of Appeal.
“Fighting words”—“those which by their very utterance inflict injury or tend to incite an immediate breach of the peace”—are not safeguarded by the federal Constitution. (Chaplinsky v. New Hampshire (1942)
Auburn Police Union v. Carpenter (1st Cir. 1993)
I am also unpersuaded by the concurring opinion’s attempt to create an exception to the the prohibition against prior restraints in the case of workplace discrimination using “strands of analysis” from United States Supreme Court precedents. The logic of the concurring opinion unravels upon closer scrutiny. Thus, R.A.V. v. St. Paul (1992) 505 U.S. 377 [112 S.Ct.
The First Amendment issue addressed in Gallo involved not free speech, as the plurality here erroneously suggest, but freedom of association, i.e., an injunction against “ ‘[standing, sitting, walking, driving, gathering or appearing anywhere in public view with any other defendant’ ” or any other gang member. (People ex rel. Gallo v. Acuna, supra,
Dissenting Opinion
I dissent.
Constitutional free speech guarantees are in undeniable tension, if not conflict, with the statutory rights of employees to be free from discriminatory verbal harassment that creates a hostile work environment. Although this tension has generated lively debate in scholarly legal journals, the United States Supreme Court has yet to address the issue. This case presents one aspect of the problem: the use of injunctions prohibiting certain kinds of future speech, on the basis of its content, as a remedy for hostile environment employment discrimination.
As I will explain, the particular content-based injunction at issue here, both as drafted by the trial court and as modified by the Court of Appeal, is invalid under the free speech guarantees of both the federal and state Constitutions because the record fails to establish that an injunction restricting future speech is necessary to prevent a recurrence of the wrongful acts of employment discrimination. Moreover, even assuming a need for some content-based speech restriction could be shown, the injunction here is invalid because it is not narrowly drawn to target only the prohibited discrimination.
These defects are not curable. In particular, the Court of Appeal’s proposal to amend the injunction by adding a list of forbidden “bad words” will not make the injunction any less an abridgment of the right of free speech. Indeed, I question whether any injunction prohibiting workplace expression of particular views, however abhorrent those views, can be reconciled with
I
Seventeen employees brought this action claiming employment discrimination in violation of the state Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.). They named as defendants their common employer, Avis Rent A Car System, Inc. (Avis), and 10 Avis employees, one of whom was John Lawrence. Of relevance to the issue raised here, plaintiffs alleged that Avis had employed them as drivers and that Lawrence, who was assigned to Avis’s service station at the San Francisco International Airport, created a hostile work environment by verbally harassing and demeaning them “on the basis of their race, national origin and lack of English language skills.” They also alleged that Kathy Black, an Avis supervisor, had conducted a discriminatory investigation of an alleged theft.
For reasons not disclosed by the appellate record, the case proceeded to trial as to only 12 of the 17 plaintiffs. By special verdicts, the jury found that Lawrence had unlawfully harassed and discriminated against four of these plaintiffs, three of whom Black had also discriminated against. With respect to three of these four plaintiffs, the jury found that Avis knew or should have known of Lawrence’s conduct and failed to stop it. The jury awarded $25,000 in emotional distress damages to each of the three plaintiffs against whom both Lawrence and Black had discriminated, but it awarded no damages to the plaintiff against whom Lawrence alone had discriminated.
After the jury returned these special verdicts, the trial court decided to grant injunctive relief. Interpreting the special verdicts as findings that Lawrence had “engaged in acts of harassment so continual and severe as to alter the working conditions” for the four plaintiffs, the court found “a substantial likelihood based on his actions that he will do so in the future unless restrained.” Referring to Lawrence, the court said that “[i]f he has done it four times against four Latinos, there is a substantial likelihood that he will do it again . . . .” But neither the plaintiff nor the court disputed the representations of defendants’ attorney that only one of the plaintiffs still worked for Avis in San Francisco and that Lawrence had not engaged in any harassment during the pendency of the lawsuit. Defendants Avis and
The trial court found that Lawrence’s discriminatory acts had consisted of offensive touching and the utterance of derogatory racial or ethnic epithets. As here relevant, the trial court granted a permanent injunction prohibiting Lawrence “from using any derogatory racial or ethnic epithets directed at, or descriptive of, Hispanic/Latino employees of [Avis]” and also “from any uninvited intentional touching of said Hispanic/Latino employees, as long as he is employed by [Avis] in California.” The injunction prohibited Avis from “allowing defendant John Lawrence to commit any [such] acts . . . under circumstances in which it knew or should have known of such acts . . ."
Lawrence and Avis appealed from the portion of the judgment granting the permanent injunction. The Court of Appeal found the injunction over-broad insofar as it restricted Lawrence’s activities other than at the workplace, and it found the injunction vague in its prohibition against “derogatory racial or ethnic epithets.” To cure these defects, the Court of Appeal reversed and remanded to permit the trial court to redraft the injunction to limit its scope to the workplace and to add “an exemplary list of prohibited derogatory racial or ethnic epithets, specifying epithets such as those actually used in the workplace by Lawrence.”
To determine whether the injunction, even as limited by the Court of Appeal, is an unconstitutional abridgment of constitutional free speech rights, this court granted the petition for review filed by defendants Avis and Lawrence.
II
The First Amendment to the federal Constitution, made applicable to the states by the Fourteenth Amendment (Near v. Minnesota (1931)
An injunction that regulates speech on the basis of its topic is termed a content-based regulation and is presumptively invalid. (Rosenberger v. Rector and Visitors of Univ. of Va. (1995)
An injunction that regulates speech on the basis of its content or viewpoint is scrutinized more strictly than a content-neutral injunction. (Madsen v. Women’s Health Center, Inc., supra,
The injunction at issue here is based on both content and viewpoint. It is based on content because it prohibits speech for its communicative impact— its potential to offend the person who hears it. (Reno v. American Civil Liberties Union (1997)
The state may prohibit racial or ethnic discrimination in housing and employment. Indeed, it has a compelling interest in doing so. (See R.A.V. v. St. Paul, supra,
The state has a compelling interest in eradicating invidious employment discrimination (see R.A.V. v. St. Paul, supra,
Even assuming for the sake of argument that injunctive relief were necessary, the record does not demonstrate the necessity of an injunction restricting speech. The trial court found that Lawrence’s harassment had consisted of both offensive touching and the use of racial and ethnic epithets. The jury’s special verdicts do not specify whether the employment discrimination findings were based on the offensive touching, the epithets, or a combination of the two. The record contains no finding by the jury or by the
Nor is the injunction narrowly drawn to prevent a recurrence of a hostile work environment for plaintiffs. For First Amendment purposes, a regulation is narrowly drawn “if it targets and eliminates no more than the exact source of the ‘evil’ it seeks to remedy.” (Frisby v. Schultz (1988)
Here, the injunction prohibits Lawrence from addressing epithets to any Hispanic employee, not just the four plaintiffs (only one of whom still works for Avis) whom Lawrence was found to have harassed. This is not a class action, a criminal prosecution, or a civil enforcement action by government; it is a civil action by individual private plaintiffs. I am aware of no authority permitting a trial court, in a civil action by individual plaintiffs, to award equitable relief in favor of persons who are strangers to the proceeding.
Also, the injunction prohibits Lawrence not only from addressing racial and ethnic epithets to Hispanic employees, but also from using those epithets as descriptive of these employees. The latter prohibition, because it applies even to statements made outside the hearing and knowledge of any Hispanic employee, encompasses speech unlikely to contribute in any way to a hostile work environment for plaintiffs. Thus, the injunction is an invalid infringement of free speech rights because it prohibits expressive activity that is not the precisely targeted evil of employment discrimination against plaintiffs.
Even if the injunction were narrowed to prohibit Lawrence only from directing epithets at the workplace to the particular Avis employees he previously harassed, it would still prohibit more speech than necessary. As the Chief Justice concedes, “not every utterance of a racial slur in the workplace violates the FEHA.” (Plur. opn., ante, at p. 130.) An isolated use of an epithet, however odious, does not produce a hostile work environment. To establish employment discrimination by verbal harassment, the employee must show that “the workplace is permeated with ‘discriminatory intimidation, ridicule, and insult,’ . . . that is ‘sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive
“[Wjhether an environment is ‘hostile’ or ‘abusive’ can be determined only by looking at all the circumstances.” (Harris v. Forklift Systems, Inc., supra,
Also, as Justice Mosk points out in his dissent, a content-based injunction restricting workplace speech would appear necessarily and invariably to be an invalid prior restraint. “The term ‘prior restraint’ is used ‘to describe administrative and judicial orders forbidding certain communications' when issued in advance of the time that such communications are to occur.’ . . . [Permanent injunctions—i.e., court orders that actually forbid speech activities—are classic examples of prior restraints.” (Alexander v. United States (1993)
The First Amendment “accords greater protection against prior restraints than it does against subsequent punishment for a particular speech.” (Nebraska Press Assn. v. Stuart (1976)
Because isolated remarks seldom, if ever, cause a hostile work environment, and because determining the existence of a hostile work environment requires an examination of all relevant circumstances, it is impossible to demonstrate in advance that any particular workplace speech will create a hostile work environment (and thus potentially be subject to regulation without violating the First Amendment), much less that it will produce direct, immediate, and irreparable injury. Accordingly, the conclusion seems inescapable that injunctions prohibiting any future offensive workplace speech on the basis of content and viewpoint are invariably and necessarily unconstitutional prior restraints on speech.
in
The Chief Justice’s plurality opinion does not treat the injunction at issue here as a prior restraint, nor does it apply the strict test that the United States Supreme Court has mandated for content- and viewpoint-based injunctions. It suggests various reasons why a less rigorous test is appropriate, and plaintiffs and amici curiae offer other reasons. I consider these reasons in turn.
Preliminarily, I note that an otherwise content-neutral statute or injunction may prohibit speech falling within certain narrowly defined categories— such as obscenity, defamation, and “fighting words”—without meeting any separate compelling interest test. (See Chaplinsky v. New Hampshire (1942)
Under what some commentators have termed the “captive audience doctrine,” the United States Supreme Court in a few instances has acknowledged the legitimate interests of persons who would prefer to avoid exposure to unwelcome speech but are unable to do so. (See, e.g., Frisby v. Schultz, supra,
This argument reads more into the captive audience doctrine than the decisions of the United States Supreme Court permit. Under those decisions, a court may impose a content-based restriction to protect unwilling listeners from offensive speech only in the “narrow circumstances” where “the degree of captivity makes it impractical for the unwilling viewer or auditor to avoid exposure” and “ ‘substantial privacy interests are being invaded in an essentially intolerable manner.’ ” (Erznoznik v. City of Jacksonville (1975)
Moreover, in one important respect the work environment is different from other captive audience situations that the United States Supreme Court
In a footnote containing its only reference to this dissent, the Chief Justice’s plurality opinion cites two federal appellate decisions for the proposition “when a repeated course of conduct has been found to constitute a nuisance or unlawful employment practice, a court is authorized to enjoin future individual acts that are likely to continue or perpetuate the nuisance or unlawful practice.” (Plur. opn., ante, at p. 146, fn. 9.) But neither of the cited decisions addresses any issue under the First Amendment. (See People v. Scheid (1997)
Insofar as he deigns to consider the First Amendment at all, the Chief Justice may be understood to argue that once a court has fully and fairly determined that a person has engaged in speech that contributed to a hostile work environment for a particular employee, a court may, without violating the First Amendment, prohibit that person not only from causing the same harm to the same employee by the same speech, but also from engaging in any similar speech that might cause similar harm to any similar employee. The Chief Justice suggests that an injunction is not an invalid prior restraint if it is remedial in this sense.
Isolated remarks by individual justices of the United States Supreme Court suggest there may be some sort of “remedial injunction” exception to the general prohibition against prior restraints. (See, e.g., Madsen v. Women’s Health Center, Inc., supra,
The Chief Justice here seems to rely in particular on Pittsburgh Press Co. v. Human Rel. Comm’n (1973)
Here, by contrast, the speech at issue is not commercial speech, and the determination of employment discrimination does turn on the effect of the prohibited speech on particular employees, because racial and ethnic slurs in the workplace cause employment discrimination only if they have the effect of producing a hostile work environment, which in turn depends upon, among other things, the subjective emotional impact of the speech on the employees claiming discrimination. Because a finding of hostile environment discrimination turns on the effect of particular speech, and because this court cannot know in advance what effect future speech will have, this court is asked to speculate as to the effect of the expression that the injunction prohibits.
To take a different example, if a newspaper has maliciously published a defamatory statement about a public figure, as determined by a jury after a full and fair trial, some (but not all) courts would permit issuance of an injunction prohibiting the newspaper from again publishing the very same defamatory statement. (See Kramer v. Thompson (3d Cir. 1991)
To take another example that the high court has specifically addressed, once a movie theater has shown a film that is obscene, as determined by a jury following a full and fair trial, a trial court may thereafter enjoin the theater from exhibiting that film (Paris Adult Theatre I v. Slaton (1973)
Speech having only the potential to cause hostile environment employment discrimination deserves at least as much protection as speech that is potentially obscene or defamatory, two types of speech that are categorically prescribable under the First Amendment. An employer who has engaged in
IV
Article I, section 2, of the California Constitution declares: “Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right. A law may not restrain or abridge liberty of speech or press.” I agree with Justice Mosk that, for the reasons cogently stated in part II of his dissenting opinion, the injunction at issue here violates our state constitutional free speech guarantee, which is “more definitive and inclusive” than the federal provision. (Wilson v. Superior Court (1975)
V
Employees expect and deserve effective protection against invidious discrimination at work. Federal and state statutes provide this protection. But when the alleged discrimination consists of verbal harassment by a coworker, the statutory right to equal employment opportunity comes into conflict with constitutional free speech guarantees. Employees do not surrender constitutional free speech rights when they go to work. “[T]o wholly exclude workplace speech from the realm of the First Amendment would immeasurably impoverish the freedom of expression in this society. For many people, there is no other time or place in their lives in which they can talk about public issues, personal problems, and spiritual concerns with individuals from diverse backgrounds and perspectives.” (Estlund, The Architecture of the First Amendment and the Case of Workplace Harassment (1997) 72 Notre Dame L.Rev. 1361, 1375; see also Comment, Political Speech, Sexual Harassment, and a Captive Workforce (1995) 83 Cal.L.Rev. 637, 646 [“it is arguable that today more political speech occurs at the workplace than in the public square”].) And, as Justice Holmes reminds us, “we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country.” (Abrams v. United States (1919)
I disagree with the plurality that the appellate record, which includes the pleadings, the jury’s special verdicts, and all postverdict proceedings relating to issuance of the injunction, is inadequate to determine the constitutionality of the injunction or requires this court to indulge in presumptions, belied by the record before us, that the injunction is necessary and narrowly tailored.
Dissenting Opinion
In America, Father Terminiello can give a speech in which he describes the crowd outside the auditorium as “ ‘imported from Russia’ ” (Terminiello v. Chicago (1949)
“[T]ime has upset many fighting faiths.” (Abrams v. United States (1919)
“If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable” (Texas v. Johnson (1989)
In Meritor Savings Bank v. Vinson (1986)
In Harris v. Forklift Systems, Inc. (1993)
The plurality notes that the FEHA has the same broad scope as Title VII, and, like Title VII, it prohibits “[v]erbal harassment” (plur. opn., ante, at p. 129) that is “ ‘sufficiently pervasive so as to . . . create an abusive working environment ....’” (Id. at p. 130, quoting Fisher v. San Pedro Peninsula Hospital (1989)
The issue in R.A.V. had nothing to do with Title VII or workplace discrimination. Rather, R.A.V. held that, even when speech falls within a category that is generally subject to regulation—such as obscenity, defamation, or fighting words—the government cannot regulate the speech in a content-based way. (R.A.V., supra, 505 U.S. at pp. 383-384 [
This tentative dictum is hardly a “rulingO” (plur. opn., ante, at p. 137) that “leave[s] little room for doubt” (id. at p. 136), and, in any case, it is clearly limited to “prescribable speech” such as fighting words. Indeed, if it were not so limited, it would fail to illustrate the high court’s point, which is that the content-neutrality requirement applies less strictly in the case of “prescribable speech.” As such, this dictum can hardly be characterized as a definitive determination that the First Amendment does not protect speech that creates a hostile work environment. On the contrary, R.A.V. emphasizes that the content-neutral requirement is more strict in the ease of “fully protected speech.” (R.A.V., supra,
I can think of no circumstance in which this court has brushed aside such an important constitutional protection as the right to free speech on the basis of so little analysis or authority. And it is no answer that the government is merely proscribing discriminatory conduct, whether or not spoken words are an integral part of that conduct, and therefore it can incidentally regulate speech in the workplace without violating the First Amendment. (Plur. opn., ante, at pp. 134-135, 137, fn. 6.) Here, it is the speaker’s philosophical beliefs and opinions themselves that cause the injury, and it is those beliefs and opinions that the government wants to censor. If government can censor those beliefs and opinions under the rubric of merely proscribing discriminatory conduct, then it can also punish Father Terminiello for discriminatorily denouncing Russian Jews in his speech in a Chicago auditorium, and it can punish Clarence Brandenburg for advocating the deportation of Blacks, and it can prevent Nazis from marching through the streets of Skokie.
Indeed, if applied generally, the plurality’s rule would create the exception that swallowed the First Amendment. As part of the FEHA, the Legislature
Moreover, here we are not dealing merely with a regulation of speech, we are dealing with an absolute prohibition—a prior restraint. Prior restraints of speech are particularly inimical because they do not merely place a burden on the speaker’s ability to communicate a message; rather they erase that message before its effects can be assessed. The plurality repeatedly asserts that the prior restraint at issue here is permitted under the First Amendment “because defendants simply were enjoined from continuing a course of repetitive speech that had been judicially determined to constitute unlawful harassment in violation of the FEHA.” (Plur. opn., ante, at p. 145; see also id. at pp. 126, 140-141, 141-142, 147.) So speech that is “unlawful” is now unprotected by the state and federal Constitutions. That standard turns the world on its head. In effect, the plurality says, “The Legislature, acting in response to current popular sentiments, has carved out certain ideas from the universe of ideas and declared them to be bad ideas, and once an idea has been judicially determined to be one of these bad ideas, courts can prohibit anyone from expressing it.” I disagree.
Justice Werdegar’s concurring opinion, though it agrees the court’s analysis is fatally flawed (conc. opn., ante, at pp. 149-150) and tries harder to address the First Amendment issues, is no more persuasive. Conceding that none of the existing First Amendment doctrines standing alone permits the injunction at issue here, she carves a new exception from the First Amendment because a “contrary holding” (id. at p. 165) would mean “Lawrence’s First Amendment rights . . . outweigh the rights of the Latino plaintiffs to be free of unwanted racial discrimination.” (Id. at pp. 165-166.)
The Constitution, however, has already balanced the scales. Plaintiffs should not be subjected to racial invectives in the workplace. But this case is not, as Justice Werdegar suggests, an all-or-nothing choice between either upholding the injunction or subjecting employees to a “constant stream of [denigrating] verbiage.” (Conc. opn., ante, at p. 165, fn. omitted.) There is a
As Justice Werdegar recognizes, this case pits freedom of speech against racial equality, and because the tension between freedom and equality cannot be reconciled, the best that can be achieved is a rough equilibrium. (Conc. opn., ante, at pp. 165, 167.) In this regard, the California Constitution strikes the appropriate balance by distinguishing between prior restraints and all other regulations of speech. Article I, section 2, subdivision (a), of the state Constitution provides: “Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right. A law may not restrain or abridge liberty of speech or press.” In Dailey v. Superior Court (1896)
Since Dailey, we have upheld injunctions against speech, but only prescribable speech such as obscenity or fighting words, or where other compelling circumstances made injunctive relief absolutely necessary. (Cf. People ex rel. Gallo v. Acuna (1996)
The court also rejects defendants’ argument that the injunction here is overly broad. Justice Werdegar’s concurring opinion does not address this
First, because we are deciding this case on a very limited record, we do not know what exactly plaintiffs’ supervisor said, how often he said it, or what the surrounding circumstances were. Moreover, we do not know whether the damages award, which defendants have chosen not to challenge, was adequate to bring an end to the conduct that created the hostile work environment. Therefore, we do not know if the broad injunction was necessary, or if a more specific one prohibiting, for example, only pervasive use of certain epithets would have sufficed. Second, the injunction does not merely prohibit plaintiffs’ supervisor from repeating his discriminatory comments in plaintiffs’ presence; rather, it prohibits him from repeating them anywhere in the workplace. The United States Supreme Court made clear in Harris that, “if the victim does not subjectively perceive the [work] environment to be abusive, the conduct has not actually altered the conditions of the victim’s employment, and there is no Title VII violation.” (Harris, supra, 510 U.S. at pp. 21-22 [
Every age has its fashionable ideas and its disfavored ideas. In the early part of this century, the public was particularly thin-skinned about communism. Courts tried to prohibit and punish the dissemination of communist ideas, but the United States Supreme Court struck down these decisions with a resounding no. (See, e.g., Gitlow v. New York (1925)
None of us on this court condone ethnic and racial discrimination in the workplace, but the issue in this case is speech, not just discrimination. Speech is unpleasant sometimes. It may be disgusting. It may be offensive. Contrary to the nursery rhyme, it may even be injurious. But, with few exceptions, none of which apply, the state and federal Constitutions prohibit courts from using their injunctive power as a surgical instrument to extricate disfavored ideas from the popular discourse, and this principle applies even here where the ideas in question were, from what we can tell from the limited record, both offensive and abhorrent.
One of the truths we hold to be self-evident is that a government that tells its citizens what they may say will soon be dictating what they may think. But in a country that puts such a high premium on freedom, we cannot allow ourselves to be the captives of orthodox, culturally imposed thinking patterns. Indeed, I can conceive no imprisonment so complete, no subjugation so absolute, no debasement so abject as the enslavement of the mind.
Fundamentally, this is a case about equality and freedom. Thus, it is a case about our most basic political ideals; about our highest aspirations and our greatest failures; our toughest challenges and our deepest fears. It is about a bafflingly elusive dream of equality and the freedom, not immune from abuse, to speak words that make others more than uncomfortable. It is a case about equality and freedom and the irreconcilable tension between the two. We are all the beneficiaries of the freedom the Constitution guarantees, and we all pay its costs, even though the price may sometimes be anguish.
I dissent.