-Caveat Lector-
Free speech takes a hit
Avis case: State high court elevates the rights of employees to
have a harassment-free workplace.
BY HOWARD MINTZ
Mercury News Staff Writer
A sharply divided California Supreme Court, struggling with an
unprecedented clash between free-speech rights and workplace
discrimination, decided Monday that the First Amendment can take
a back seat to preventing harassment on the job.
In a case with national implications, the state's high court held
that government has the power to regulate words in the employment
setting, at least when there is a proven need to correct
harassing conduct and discrimination. The ruling, written by
Chief Justice Ronald George, essentially permits a judge to
muzzle an employee found to have created a hostile work setting
by directing racial slurs at colleagues.
Closely watched by civil-liberties groups, the ruling stems from
a long legal battle over a discrimination lawsuit filed against
Avis Rent-A-Car by a group of Latino employees who maintained a
supervisor constantly berated them with racial epithets.
At the end of a 1995 trial, in which a San Francisco jury sided
in part with the Latino workers, a judge barred Avis service
agent John Lawrence from uttering any derogatory statements in
the future. The scope of that order -- and its constitutionality
-- posed unsettled legal questions for California's high court.
Although the justices fell short of carving out a free-speech
exception in the workplace, they concluded that a restraint on
Lawrence was justified by the jury's finding that he caused a
hostile environment at Avis. Justice Kathryn Mickle Werdegar, who
provided the deciding vote in a 4-3 ruling, would have gone
further, saying the state has a fundamental interest in trying to
``eradicate racial discrimination in the workplace.''
Avis attorneys said the company had not fully evaluated the
opinion and would have no comment on it until today. Avis, joined
by several free-speech groups, has argued that while harassing
conduct can be regulated, speech of any kind cannot. They have
warned that gag orders like the one imposed on Lawrence are a
clear violation of free-speech guarantees.
Next stop: Supreme Court?
Avis can appeal the case to the U.S. Supreme Court, which legal
experts say has not addressed the issue head-on. Lawyers worried
about the free-speech implications say Monday's ruling might
force employers to be overly restrictive about speech in the
office.
``I think it leaves us more confused than when we started,'' Los
Angeles attorney Bruce Adelstein, who sided with Avis on behalf
of the Center for Individual Rights, said of the court's
decision.
University of California-Los Angeles law Professor Eugene Volokh,
who has closely studied the case, agreed. ``The case leaves open
a lot more questions than it resolves,'' Volokh said. ``The
majority decision is very narrow, but it does say that racial
slurs may be enjoined by a court consistent with the First
Amendment.''
Lawyers for the Latino workers, with backing from groups
including the American Civil Liberties Union, argued that the
need to keep the workplace free of harassment outweighs any
restraint on free speech. They were pleased with the court's
ruling, saying it simply ratified the importance of protecting
workers against discrimination.
``The opinion was not revolutionary,'' said Michelle Alexander,
director of the racial justice project at the ACLU, which usually
sides with free-speech advocates, but came down on the side of
anti-discrimination forces in the case. ``What would have been
shocking is if the California Supreme Court came out the other
way. The First Amendment is not a license to discriminate.''
Strong dissent
At least three of the justices did find the ruling revolutionary,
however. The three dissenters, in strong language, condemned any
use of a court order to block speech, even if it is designed to
cure workplace discrimination or harassment. One justice called
Monday's ruling ``sailing into uncharted First Amendment
waters,'' and the dissenters invited the U.S. Supreme Court to
settle the matter.
``I can think of no circumstance in which this court has brushed
aside such an important constitutional protection as the right to
freespeech on the basis of so little analysis or authority,''
Justice Janice Rogers Brown observed in her dissent. ``Speech is
unpleasant sometimes. It may be disgusting. It may be offensive.
But, with few exceptions . . . courts (are prohibited) from
using their . . .powers as a surgical instrument to extricate
disfavored ideas.''
Added Justice Joyce Kennard, ``Employees do not surrender their
constitutional free-speech rights when they go to work.'' The
legal dispute dates back to 1991 and 1992, when Lawrence and
other Avis employees were first accused of harassing Latino
service workers at the agency's San Francisco International
Airport facility. Seventeen workers sued, and eight of them
eventually won $135,000 in total damages.
Avis did not appeal the damage award. But the company appealed an
injunction issued by Superior Court Judge Carlos Bea barring
Lawrence from ever directing epithets at his colleagues -- on or
off the job.
First order limited
A divided San Francisco appeals court in 1996 upheld Bea's order,
but found that it was too vague and should be specifically
limited to job-related speech. The state Supreme Court, which
reviewed that ruling, made it clear that it would only permit
restrictions on harassing speech in the workplace.
Bea also has been instructed to come up with a description of the
kinds of words Lawrence should be banned from speaking.
Lawrence remains an Avis employee, according to Avis lawyers.
Contact Howard Mintz at [EMAIL PROTECTED] or (408)286-0236.
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