Privacy, Business and Law

In a May 22, 2000 decision, the United States Supreme Court declined to review a controversial California Supreme Court ruling set down in Avis v. Rent A Car System, Inc. v. Aguilar, 21 Cal. 4th 121 (1999).

In Aguilar, the respondents, who are Latino, were employed as drivers at petitioner Avis Rent A Car System, Inc.’s San Francisco airport facility. According to the complaint, Lawrence, another employee of the facility, routinely harassed only the Latino drivers, calling then derogatory names and demeaning them on the basis of their race, natural origin, and lack of English language skills. Respondents filed suit against Lawrence and Avis in California court under the Fair Employment and Housing Act (“FEHA”). A jury returned special verdicts in favor of respondents, finding that Lawrence had engaged in harassment and that Avis knew or should have known of Lawrence’s conduct. Respondents were each awarded $25,000 in damages, except for one who was found not to have suffered emotional distress.
The trial court then considered respondents’ request for injunctive relief. Over the objection of the company and the supervisor, the trial court granted the requested injunction. Specifically, it ordered in part that:

Defendant John Lawrence shall cease and desist from using derogatory racial or ethnic epithets directed at, or descriptive of, Hispanic/Latino employees of Avis Rent A Car System, Inc., and shall further refrain from any uninvited intentional touching of said Hispanic/Latino employees, as long as he is employed by Avis Rent A Car System, Inc. in California.

Lawrence and Avis appealed from the injunction portion of the judgment, claiming it was impermissibly overbroad and vague and in violation of Free Speech rights.
A divided California Supreme Court eventually affirmed. See October 1999 Legal Update. The plurality rejected petitioners’ First Amendment argument, holding that 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.”

The matter was then taken to the United States Supreme Court which declined review. Justice Thomas dissented from the denial of review claiming the Court should address the “troubling” First Amendment issues raised by the injunction. “Attaching liability to the utterance of words in the workplace is likely invalid for the simple reason that this speech is fully protected speech.” Clearly the intersection between discrimination laws and First Amendment rights have only begun to be explored by the courts. Undoubtedly, there will be more decisions testing these difficult boundaries.