Up-to-date information for employers on topics and issues that may affect workplace operations. The posts are current as of the date of the posting.


by D. Gregory Valenza | The Daily Journal | Jul 14, 2010

A client asks what to do about an employee who is sending out global emails to the entire workforce, which contain rants against workplace diversity, cultures other than European, etc. The employee maintains he has a right under the First Amendment to issue such emails. But the other employees are offended and registering complaints under the “zero tolerance” harassment policy.

If you rolled your eyes about that First Amendment argument, the Ninth Circuit’s decision in Rodriguez v. Maricopa County Cmty. College Dist., 605 F.3d 703 (9th Cir. 2010), may change your mind. The First Amendment indeed may provide employers with a defense against certain claims of unlawful “harassment” under Title VII of the Civil Rights Act of 1964, or the Fair Employment and Housing Act. Public-sector employers also must be careful not to infringe upon the “harasser’s” First Amendment rights.

A group of employees brought a class action against Maricopa Community College, in Arizona, claiming a hostile work environment under the Equal Protection Clause of the U.S. Constitution, as well as Title VII of the Civil Rights Act of 1964. The lawsuit was based on racially charged emails, which Professor Walter Kehowski sent to every employee of the community college district who had an email address.

The emails included: “It’s time to acknowledge and celebrate the superiority of Western Civilization,” and “[m]ost thinking people believe that the European, Christian victory over the Moorish, Islamic (and African) culture in Spain is an example of a victory of a ‘backward’ culture over one that was more civilized.” He also wrote: “if we don’t pull ourselves out of the multicultural stupor, another culture with some pretty unsavory characteristics . . . will dominate . . . .” Kehowski’s emails also linked to his website, which contained, among other things, this post: “[t]he only immigration reform imperative is preservation of White majority.”

District employees complained of a hostile work environment. But the district refused to take action because of its concerns about academic freedom. Litigation ensued. The district court denied the district’s motion for summary judgment on the Title VII and Equal Protection Clause claims. The lower court also denied the individually named defendants’ motion to dismiss on the basis of qualified immunity. The district and the individuals — the district’s Chancellor and President — appealed to the Ninth Circuit.

The appeal nominally was limited to the qualified immunity issue. The court’s opinion addresses whether the individuals could be held liable for permitting workplace harassment under the Equal Protection Clause of the U.S. Constitution’s Fourteenth Amendment. The Equal Protection Clause protects public sector employees from racial harassment at the workplace. So, the court had to decide whether Kehowski’s emails amounted to unlawful harassment.

Chief Judge Alex Kozinski wrote for the panel, which included retired Supreme Court Justice Sandra Day O’Connor and Circuit Judge Sandra Ikuta. The court squarely held that the Chancellor and President were immune from suit because the Professor’s “speech was not unlawful harassment” and, therefore, was not an Equal Protection Clause violation.

The basis for the ruling was that the Professor’s emails, however odious, were protected by the First Amendment. The court found significant that Kehowski did not target a particular individual, but effectively stood on an electronic soapbox and addressed everyone with an email account. Additionally, he was not a supervisor and did not make a credible implied or express threat. Finally, and perhaps most importantly, the court emphasized its special deference to academic freedom.

Even outside the academic context, public sector employers may need to revisit their anti-harassment policies. After Rodriguez, purely verbal or visual harassment, not targeted at one individual and not linked with discriminatory adverse employment actions, may be due First Amendment protection.

But can Rodriguez be relevant to harassment claims asserted against private, non-academic employers? The First Amendment itself does not limit private-sector employers’ anti-harassment policies. Private-sector employers therefore may prohibit offensive speech, even if the First Amendment might protect it. So, nothing in Rodriguez would prohibit a private-sector employer from, for example, banning an employee’s use of email to disseminate bigoted opinions. Given employers have a duty to prevent discrimination and harassment, it remains prudent to stop offensive speech before it is combined with other conduct that would not be protected by the First Amendment.

However, the employment discrimination laws prohibiting harassment, including Title VII of the Civil Rights Act of 1964 and the California Fair Employment and Housing Act, do not trump the First Amendment. As then-Judge Samuel Alito put it, there is no general “harassment” exception to the First Amendment. See Saxe v. State College Area Sch. Dist., 240 F.3d 200 (3d Cir. 2001). Therefore, a court would not be able to sustain a statutory harassment claim based exclusively on speech protected by the First Amendment.

That said, Rodriguez will not preclude typical harassment claims. The First Amendment does not protect physical conduct, for example. Harassment cases often involve targeted communications to one person or a small group, which is not considered the same as speech directed to the public. Moreover, a supervisor’s harassment that implies negative and tangible employment action on the basis of protected status would count as unprotected conduct, rather than speech. Therefore, the Rodriguez case in no way is a license to engage in workplace harassment that violates federal or state anti-discrimination laws.

Rodriguez may prove significant in the less common scenario, when an employee’s claim exclusively is based on offensive language directed at no one in particular, as well as employees’ blogs, visual displays, generally disseminated viewpoints, or other expressions that are inconsistent with anti-harassment policies.

Additionally, Rodriguez may prompt the California Supreme Court to revisit its decision in Aguilar v. Avis Rent A Car System, Inc., 21 Cal. 4th 121 (1999). There, a jury found that a supervisor engaged in unlawful harassment based on race or national origin in violation of the Fair Employment and Housing Act. The trial court as part of the remedy for the violation issued an injunction against future harassment. The trial court enjoined purely verbal harassment as part of its injunction.

The California Supreme Court upheld the injunction (as narrowed by the Court of Appeal). A fractured ruling, Chief Justice Ronald George’s lead opinion garnered only two other votes (Justices Ming Chin and Ralph Baxter). Justice Kathryn Mickle Werdegar concurred in the judgment. Justices Stanley Mosk, Janice Rogers Brown and Joyce Kennard dissented.

Justice Werdegar did not join the plurality opinion because it did not address “whether the First Amendment permits imposition of civil liability under FEHA for pure speech that creates a racially hostile or abusive work environment.” Id. at 147 (Werdegar, J., concurring). But the plurality, expressly responding to Justice Werdegar, held: “the First Amendment permits imposition of civil liability for past instances of pure speech that create a hostile work environment.” Id. at 135-36. The plurality’s conclusion supported its holding that an injunction against future harassment was not an unlawful prior restraint in violation of the First Amendment. The plurality reasoned that the injunction was proper because the trial court found that the past harassment was unlawful and, therefore, outside the First Amendment’s protections.

After Rodriguez, the Court may have to reconsider the breadth of its holding in Aguilar. Rodriguez teaches that pure speech, even if based on race, sex or other criteria protected by the Fair Employment and Housing Act, may be protected by the First Amendment. If such speech is protected, it cannot be enjoined.

Again, private-sector employers should not conform their anti-harassment policies to the First Amendment, given their duty to prevent unlawful discrimination, harassment and retaliation. But public-sector employers face potential liability not only for illegal harassment and discrimination, but also for violating alleged harassers’ First Amendment rights. Therefore, public-sector employers may wish to revisit their anti-harassment policies and training programs. After Rodriguez, it may not be possible to shield employees from pure offensive speech, which could include verbal and visual forms of harassment. Finally, both public and private employers should ensure they raise First Amendment defenses against hostile environment claims in appropriate cases.