Case of racist workplace speech piques interest of high court justice

Tuesday, May 23, 2000

The Supreme Court yesterday sidestepped one of the thorniest unanswered questions in First Amendment law: whether laws against bias in the workplace impinge on freedom of expression.

Only Justice Clarence Thomas wrote that he wanted to take on the “troubling First Amendment issues” raised by the California case of Avis Rent-A-Car System v. Aguilar. But the rest of the court declined to review the case. Under the court’s unwritten rules, the agreement of four of the nine justices is needed to docket a case for review.

As a result, the California Supreme Court’s decision in the Avis case stands, allowing lower courts to enforce an injunction against Avis forbidding one of its supervisors from using derogatory epithets toward the company’s Latino employees in San Francisco.

Oscar Aguilar and other Hispanic Avis workers obtained the injunction after also winning money damages against the company under state anti-discrimination laws. The supervisor, John Lawrence, had been found guilty of harassing Latino employees by creating a hostile work environment with the epithets. Lawrence and Avis appealed, but a divided California high court upheld both the award and the injunction, which ordered Lawrence to “cease and desist” all racial epithets while on the job. It told a lower court judge to draft a list of forbidden words.

Thomas said he wanted to review the California ruling because “attaching liability to the utterance of words in the workplace is likely invalid for the simple reason that this speech is fully protected speech.” The content-based nature of the restriction on the supervisor’s speech, Thomas said, would probably make it unconstitutional under the court’s 1992 R.A.V. v. St. Paul decision. “To uphold the application of a content-based antidiscrimination law … to pure speech in the workplace, then, we would have to substantially modify our First Amendment jurisprudence.” Thomas also said the injunction was not narrowly tailored to achieve the government’s anti-discrimination objectives.

“We must remember that we deal here with a claim at the core of the First Amendment — that the state is suppressing speech that it dislikes,” Thomas wrote.

The strong objection to the California ruling may seem unusual coming from the court’s only black justice. But Thomas has emerged in recent years as a strong First Amendment supporter. And in civil rights cases, he has also frequently taken the stance that minorities do not need or benefit from special protections under the law.

In a recent column in Legal Times, First Amendment advocate Nat Hentoff expressed alarm at the California ruling in the Avis case, also criticizing the American Civil Liberties Union for supporting the decision.

“If the Avis decision stands,” Hentoff wrote, “courts throughout the land will have wide and confusing authority to decide which particular words — even if they are protected speech in other contexts — will be permitted in the nation’s workplaces or banished permanently.”

Tony Mauro covers the Supreme Court for American Lawyer Media and is a legal correspondent for the First Amendment Center.

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