Justices bar epithets as on-the-job free speech

Richard Carelli

Monday, May 22, 2000 | 8:52 a.m.

WASHINGTON - Rejecting a free-speech appeal from the nation's second-largest car rental company, the Supreme Court today refused to let an Avis employee use ethnic epithets at his San Francisco International Airport job.

The justices left intact a ruling in which the California Supreme Court said an Avis Rent a Car service station manager who harassed co-workers with bigoted words could be ordered to stop using such language at work in the future.

Today's action, taken over Justice Clarence Thomas' dissent, set no national precedent. But it left standing a decision Avis lawyers said gives California judges "astounding" new power to impose prior restraints on speech.

The challenged ruling "obliterates fundamental free-speech guarantees, concluding that racially offensive speech is constitutionally unprotected and can be banned in advance in the workplace," the Avis lawyers said.

The Avis appeal did not challenge a jury's finding that both Avis and station manager John Lawrence illegally discriminated against Hispanics employed as drivers to move rental cars between parking lots and check-in and service areas.

The company and Lawrence had been sued by 17 Hispanic employees in 1993. The lawsuit said Lawrence's treatment of them - constantly calling them vulgar and derogatory names based on their ethnicity and lack of English skills - violated the state Fair Employment and Housing Act.

The lawsuit accused Avis of doing nothing to stop Lawrence.

Avis was ordered to pay a $135,000 award to eight Hispanic employees.

The company challenged Judge Carlos Bea's injunction prohibiting Lawrence from using epithets against all Hispanic employees and ordering Avis to stop him if possible. Violations of the injunction are considered contempt of court.

The state Supreme Court, by a 4-3 vote last August, said the judge's order "does not violate ... 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."

The spoken word, if discriminatory, can lose its constitutional protection "like violence or other types of potentially expressive activities that produce special harms distinct from their communicative impact," the state court said.

The Avis appeal said the finding of past harassment "is constitutionally irrelevant" and cannot be used to justify the restraint on future speech. Avis "does not condone racial discrimination in the workplace. However, the issue here is speech, not discrimination, since the injunction extends to the use of words that (do) not violate the law," the appeal said.

In a dissenting opinion, Thomas said, "Even if some types of harassing speech in the workplace do not enjoy First Amendment protection, there has been no showing that a prior restraint, rather than the less severe remedy of money damages for any future violations, is necessary to regulate Lawrence's speech."

The case is Avis vs. Aguilar, 99-781.

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On the Net: For the state court ruling: http://www.courts.net and click on California.