Employment Law
Commentary
Volume 17, No. 8 August 2005
Workplace Conflict: Harassment Laws
and Free Speech Rights
By Natalie A. Fleming and Lloyd W. Aubry, Jr.
Inside
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5
E
mployees have many legal
publish his or her sentiments on all subjects,
protections in the private
being responsible for the abuse of this right.
workplace, including the right
A law may not abridge liberty of speech
to work in an environment free from
or press.” Article I, section 2, subdivision
harassment. Employees also have certain
(a). The California Constitution’s free
free speech rights in the private workplace.
speech protections are “more definitive
Yet there are times when these free speech
and inclusive than the First Amendment.”
By Gregory A. Klawitter
rights and harassment laws collide. This
Wilson v. Superior Court (1975) 13 Cal.3d
--------------------------
article will discuss conflicts between free
652, 658.
Three California
Supreme Court
Decisions: Not All
Good News
speech protections and harassment laws in
the private workplace and the implications
of these conflicts for employers. The article
will begin with an overview of free speech
protections and harassment laws. The
article will then discuss three cases where
California courts have harmonized free
speech rights and harassment laws. Finally,
the article will provide advice for employers
in dealing with these competing interests.
FREE SPEECH PROTECTIONS
Freedom of speech is a central principle
in a free and democratic society. The
First Amendment to the United States
Constitution provides, “Congress shall make
no law … abridging the freedom of speech.”
The California Constitution provides,
“Every person may freely speak, write and
Freedom of speech is a civil liberty that
courts are hesitant to infringe upon. They
are reluctant to order prior restraints, or
content-and viewpoint-based restrictions on
speech. Prior restraints preemptively forbid
future speech rather than punishing speech
that has already been spoken. The original
purpose of the guarantee of the freedom of
speech was to prevent prior restraints on
speech. Near v. Minnesota (1931) 283 U.S.
697, 713. Prior restraints must be narrowly
tailored to fulfill a compelling government
interest. Content-and-viewpoint based
restrictions forbid speech because of the
message or content of the speech. Contentbased restrictions “must burden no more
speech than necessary to serve a significant
government interest.” Madsen v. Women’s
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of Title VII. Harris v. Forklift Systems,
Cities (1996) 50 Cal. App. 4th 1038,
Inc. (1993) 510 U.S. 17; Meritor
1045 (a single violent sexual assault
Health Center Inc. (1994) 512 U.S.
Savings Bank, FSB v. Vinson (1986) 477
constituted harassment). If several
753, 765.
U.S. 57.
employees make comments that are
While California values the right of
Most scholars agree that quid pro
its citizens to speak freely, there are
quo harassment is unprotected by the
compelling government interests such
First Amendment in the same manner
as those noted above and, as will be
as threats and extortion. This article
seen below, creating harassment-free
will discuss hostile work environment
workplaces, that justify the Legislature
claims where a severe and pervasive
and courts in placing restrictions on
environment of harassment creates
speech.
a situation that violates Title VII
or FEHA. Generally, a single racial
offensive to a protected group, then
the accumulation of those statements
can create a hostile work environment.
The statements do not have to be made
by the same employee or supervisor.
See e.g. Marigny v. Mercury Air Center,
2003 WL 21978622 (Cal. App. 2
Dist.) (unpublished decision), where an
employee stated a claim for harassment
after being subjected to several
HARASSMENT LAWS
or sexual epithet is not considered
Harassment laws help “protected
severe and pervasive. See e.g. the
groups” obtain equality in the
plurality opinion in Aguilar v. Avis
workplace. In California, harassment
(1999) 21 Cal.4th 121, at 146, fn. 9,
claims are based on the Fair
which noted in dictum, “a single use
Employment and Housing Act
of a racial epithet, standing alone,
(“FEHA”) and Title VII of the Civil
would not create a hostile working
Rights Act of 1964 (“Title VII”).
environment.” See also Etter v. Veriflo
FEHA provides, “It is hereby declared
Corp. (1998) 67 Cal. App. 4th 457,
Harassment laws require private
as the public policy of this state that it
467, which held racial harassment
employers to restrict speech or literary
is necessary to protect and safeguard
cannot be “occasional, isolated,
matter in the private workplace, and
the right and opportunity of all persons
sporadic, or trivial.” On the other
therefore harassment laws may conflict
to seek, obtain, and hold employment
hand, a single, very severe incident can
with the free speech rights of employees.
without discrimination or abridgment
constitute harassment. See e.g. Etter
on account of race, religious creed,
v. Veriflo Corp., at 467, which noted a
color, national origin, ancestry, physical
very severe incident could constitute
disability, mental disability, medical
harassment, citing several cases such
condition, marital status, sex, age,
as Vance v. Southern Bell Tel. and Tel.
or sexual orientation.” (Cal. Gov.
Co., 863 F.2d 1503 (11th Cir. 1989)
Code § 12920). The U.S. Supreme
(two incidents in which a noose was
Court declared that both quid pro
hung over the employee’s work station
quo harassment and the existence of a
were sufficiently severe to constitute
hostile work environment are violations
harassment); and Doe v. Capital
Page 2
harassing incidents, including: a racial
slur uttered by a trainee in the presence
of a supervisor; repeated use of racial
slurs and stereotypes by co-employees
and low-level managers; and the failure
of the Human Resources Director to
investigate a claim of racial harassment.
HOW HAVE FREE SPEECH AND
HARASSMENT LAWS BEEN
HARMONIZED?
The Fifth Circuit Court of Appeals
noted, “Where pure expression is
involved, Title VII steers into the
territory of the First Amendment. It
is of no use to deny or minimize this
problem because, when Title VII is
employment law co mmentary
applied to sexual harassment claims
founded solely on verbal insults,
pictorial or literary matter, the statute
imposes content-based, viewpointdiscriminatory restrictions on speech …
whether such applications of Title VII
are necessarily unconstitutional has
not yet been fully explored.” DeAngelis
v. El Paso Municipal Police Officers
Association, 51 F.3d 591, 596-597
(5th Cir. 1995). As the quoted passage
from DeAngelis explains, conflicts
arise between free speech rights and
harassment laws. Courts address these
The California Supreme
Court found the
injunction forbidding
The court in Aguilar dealt extensively
with the conflict between free speech
and harassment laws. The California
Supreme Court found the injunction
specified words from
forbidding specified words from
the workplace was
because the injunction forbade the
constitutional because
the workplace was constitutional
perpetuation of illegal activity. Id. at
147. A concurring opinion suggested
the injunction forbade
the majority too easily assumed
the perpetuation of
from First Amendment protections,
illegal activity.
harassing workplace speech is exempt
but the concurring judge still found
that because of the captive audience;
conflicts by balancing the right of
the time, place, and manner of the
employees to be free from harassment
restriction; and the availability of
and the right of employees to speak
and failed to do anything about it.
alternate forums for speech, the
freely.
The court also imposed an injunction
injunction did not violate state or
forbidding the supervisor from
federal constitutional protections. Id.
uttering racial slurs which included a
at 148. The injunction in Aguilar was
list of words that the supervisor was
a very broad restriction on speech.
prohibited from speaking at any time
Although a single racial epithet will
in the workplace. Avis, as the employer,
rarely be declared a hostile work
was held responsible for ensuring
environment, the court found that
that the supervisor did not speak
any mention of the racial slurs, even if
the forbidden words. The injunction
they were spoken outside the hearing
ordered the employer to “cease and
of the plaintiffs, was forbidden. The
desist from allowing the defendant to
court allowed a prohibition of racial
commit any of these acts described
epithets even when they were spoken
in [the injunction] under which
outside the hearing of the plaintiffs
circumstances it knew or should have
because “continual use of racial
known of such acts.” Id. at 128. Failure
epithets poisons the atmosphere of
to comply with the injunction could
the workplace, even when some of
cause the employer to be in contempt
the invective is not directed at or even
of court.
heard by the victims.” Id. at 145.
The California Supreme Court dealt
with a conflict between free speech
and harassment laws in Aguilar v. Avis,
21 Cal.4th 121. In Aguilar, Latino
employees claimed they were subject
to harassment in the workplace when
their supervisor directed racial slurs
at them. The supervisor was sued for
harassment, and the employer was sued
for failing to prevent the harassment.
The court determined that the racial
slurs were illegal, harassing speech. The
court awarded monetary damages to
the plaintiffs in amounts varying from
$15,000 to $25,000. The employer was
held jointly liable for the harassment
because the company knew or should
Because the specific words prohibited
have known about the harassment
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The court allowed a
Cir. 2004), an employee claimed that
unclear whether the Bible verses would
he was unjustly fired after exercising
have been protected if the employee
epithets even when they
freedom of religion and freedom of
had been intending to express his views
speech. In Peterson, the employee
in a non-hurtful manner. The content
were spoken outside the
was fired for refusing to take down
and purpose of the speech, as well as
Bible verses from his cubicle. The
the identity of those offended by it,
employee claimed that he was offended
were important elements for the court
because “continual use
by the employer’s diversity posters
in deciding whether the speech was
which condoned homosexuality. The
protected by the First Amendment.
of racial epithets poisons
employee stated, “as long as Hewlett
prohibition of racial
hearing of the plaintiffs
the atmosphere of the
Packard is condoning [homosexuality]
I’m going to oppose it.” Id. at 602.
workplace, even when
The Bible verses were unprotected
some of the invective is
words were intended to be offensive to
not directed at or even
heard by the victims.”
by the First Amendment because the
gay and lesbian employees. The court
claimed that subjective offense is a
necessary part of harassment but still
dismissed the employee’s claim that the
diversity posters were offensive to him.
Continued from Page 3
The court pointed out the diversity
campaign was meant to promote
by the injunction had been declared
tolerance, and not intended to create
harassing, the court found these words
offense. 358 F. 3d at 604. The court
could be forbidden in the future. The
decided that the Bible verses were not
court harmonized free speech rights
protected speech, partially because the
and harassment laws by claiming that
employee admitted that the verses were
an injunction on speech was warranted
meant to be hurtful and to convince
because of the compelling government
homosexual coworkers to change
interest in forbidding the perpetuation
their behavior. The court noted, “an
of illegal activity.
employee’s opposition to a policy of
The Ninth Circuit also recently dealt
with a conflict between free speech
and harassment laws. In Peterson v.
Hewlett Packard, 358 F. 3d 599 (9th
the employer or his advocacy regarding
a controversial public issue invokes
different considerations than his
expressive activity intended to demean
or degrade coworkers.” Id. at 605. It is
Page 4
The Ninth Circuit also harmonized
harassment laws and free speech in
Bodett v. Coxcom, Inc., 366 F.3d 736
(9th Cir. 2004), where the court
found that a woman could be fired
for making statements that were
disapproving of homosexuality. The
supervisor told a gay subordinate “the
relationship she was in, was probably
the cause of turmoil in her life,” and
that “God’s design is for a relationship
between a man and a woman” and
that “homosexuality is a sin.” The
supervisor also prayed with the
subordinate, invited the subordinate to
church, and expressed disappointment
if the subordinate entered into a
homosexual relationship. The court
noted, “[the employer] is entitled
under Title VII to create an internal
harassment policy designed to equally
protect its employees’ rights. [The
supervisor] may only freely exercise her
First Amendment rights as long as such
exercise does not infringe on the rights
of others by manifesting discrimination
EMPLOYMENT LAW COMMENTARY
prohibited by [the employer’s] policy.”
The court noted First Amendment rights
may only be freely exercised as long as
Three California Supreme Court
Decisions: Not All Good News
By Gregory A. Klawitter
the speech does not violate a harassment
policy.
ADVICE FOR EMPLOYERS
1. Case Studies — Employer Liability,
Including Injunctive Relief
MILLER V. DEPARTMENT
OF CORRECTIONS–SEXUAL
FAVORITISM CAN LEAD TO
LIABILITY
affairs with his secretary and two
other subordinates. These affairs were
not concealed from other employees.
O
On the contrary, the three women
v. Department of Corrections
One of the plaintiffs knew of these
(2005) 36 Cal.4th 446. The
affairs and was denied promotions
decision significantly expands
to positions that were awarded
liability. Employers can be subject to
potential employer liability for
to one of Kuykendall’s lovers.
compensatory damages, punitive damages,
sexual harassment claims. In short,
Plaintiffs expressed concern about
and injunctions on future employee
employees in California may now sue
Kuykendall’s behavior. As a result of
speech.
employers for sexual harassment if
the complaints, one of the plaintiffs’
a sexual affair between a supervisor
supervisors, a friend of Kuykendall’s,
and a subordinate creates a hostile
became abusive towards plaintiffs.
Allowing harassing speech in the
workplace can lead to liability. Regardless
of whether the employer agrees with the
statements made, or contributes to the
harassment, the employer is required to
prevent harassing speech in order to avoid
A case which demonstrates the danger
of allowing “too much” speech in the
workplace is Marigny v. Mercury Air
Center, an unpublished California
n July 18, 2005, the
California Supreme
Court entered its
decision in the case entitled Miller
work environment for employees not
involved in the affair.
with whom Kuykendall was involved
sometimes publicly squabbled over
him while at work.
Considering the record de novo, the
court found that Kuykendall had
Two employees, Edna Miller
engaged in favoritism towards each
and Frances Mackey, sued the
of his paramours by securing their
Department of Corrections under
transfer to the new facility where
the FEHA for, among other
he worked, by assisting in certain
things, sexual harassment, sexual
promotions, and by awarding them
discrimination, and retaliation.
workplace privileges. The court also
Plaintiffs’ claims stemmed from their
found that another supervisor (the
tenure under Lewis Kuykendall, who
foregoing friend of Kuykendall’s)
served as the chief deputy warden
had physically assaulted one of the
21978622, at *2 (unpublished decision).
at the first prison facility where
plaintiffs after she had complained
The court described the employer’s
plaintiffs were employed, and later
about Kuykendall. Plaintiff Miller
statement that “everyone has the right
as the warden at a second facility
resigned her employment after her
to express themselves” as “brushing off”
where they worked. Kuykendall was
complaints failed to result in better
Court of Appeal decision. In Marigny,
the Director of Human Resources
told an African-American employee
that “everyone has the right to express
themselves” after a trainee, in the presence
of a supervisor, called the employee a
“skinny N___,” called him “boy,” and
threatened to “whoop” him. 2003 WL
having concurrent consensual sexual
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Title VII for sexual favoritism. The
is to sleep with the boss.” Here, not
policy statement explains that if
surprisingly, the court found that much
favoritism based upon the granting
more than an isolated act of favoritism
of sexual favors is widespread in a
towards a paramour had occurred.
workplace, both male and female
Critically, Kuykendall had caused his
working conditions. Plaintiff Mackey
colleagues who do not welcome this
sexual paramours to be transferred to
also resigned after her supervisor
conduct can establish a hostile work
his new facility, had granted another
repeatedly questioned her regarding
environment, regardless of whether any
supervisor the ability to abuse those
her participation in an internal
objectionable conduct is directed at
who complained about his affairs, and
investigation into Kuykendall’s
them and regardless of whether those
had ensured that advancement was
behavior.
who were granted favorable treatment
based upon sexual favors. The court
willingly bestowed the sexual favors.
found that this evidence collectively
An employee can establish a violation
created an issue of triable fact as to
if the conduct is sufficiently severe or
whether the message was implicitly
pervasive to alter the conditions of
conveyed that management viewed
employment and create an abusive
women as “sexual playthings,” noting
working environment. Significantly,
that “it is clear under California
the court found the EEOC’s statement
law that a plaintiff may establish a
consistent with prior California case
hostile work environment without
law finding a hostile work environment
demonstrating the existence of coercive
through the creation of a work
sexual conduct directed at the plaintiff
atmosphere that demeans women.
or even conduct of a sexual nature.”
does not, without more, commit sexual
Applying this standard, and analogizing
The Miller decision makes it clear
harassment toward other, nonfavored
to a workplace riddled with racist
that California employers should
employees. Notably, the Court of
comments, the court found that
take every measure to ensure that
Appeal found that plaintiffs were in
plaintiffs had established a prima
any conduct that could be construed
the same position as male employees
facie case of sexual harassment. The
as sexual favoritism is handled
who had failed to acquire the benefits
court emphasized that while isolated
with caution. These measures may
secured to the three paramours of
instances of favoritism towards an
include implementation of detailed,
Kuykendall, and thus the challenged
employee with whom a supervisor is
narrowly-tailored anti-harassment,
conduct disfavored both female and
engaged in a consensual affair do not
nonfraternization, and/or anti-
male employees.
ordinarily constitute sexual harassment,
nepotism policies. In addition,
the court held that a “hostile work
employers should ensure that their
environment” can exist where the
supervisors are aware of Miller’s
atmosphere is so severe that it demeans
implications when conducting
women as “management’s sexual
supervisor sexual harassment
playthings” and conveys the message
prevention training pursuant to
that “the way to career advancement
AB 1825, and that supervisors
Continued from Page 5
A Sacramento trial court entered
summary judgment in favor of
defendants on the grounds that
evidence of Kuykendall’s sexual
favoritism did not constitute
discrimination or harassment under
the FEHA. The Court of Appeal
affirmed, concluding that a supervisor
who grants favorable employment
opportunities to a person with whom
the supervisor is having a sexual affair
In a forty-page opinion, the California
Supreme Court reversed. The court
relied heavily on a 1990 policy
statement issued by the EEOC
addressing employer liability under
Page 6
employment law co mmentary
understand that a sexual relationship
workplace, employees arguably
strong public policy favoring marriage
need not be coerced in order to result
continue to find nothing wrong with
categorically precluded recognition
in potential liability for the employer.
such conduct.
of marital status discrimination
From this point forward, employer
liability will turn on the fine distinction
between isolated sexual favoritism and
widespread sexual favoritism. In practical
under the Unruh Act. Further, the
KOEBKE V. BERNARDO
HEIGHTS COUNTRY CLUB–AN
EXPANSION OF DOMESTIC
PARTNER RIGHTS
club asserted that extending spousal
benefits to “members’ friends”
might lead to overuse of its facilities,
disincentivize such friends to apply for
terms, this vague standard virtually
On August 1, 2005, the California
guarantees that any action taken by
Supreme Court issued its decision in
a supervisor with regard to his or her
Koebke v. Bernardo Heights Country
lover in the workplace could expose
Club (2005) 2005 Cal.LEXIS 8359.
the employer to lawsuits filed by non-
The unanimous ruling was the court’s
favored employees. In fact, this decision
first on California’s Domestic Partner
opens the door to lawsuits by any
Act, which took effect on January 1,
Lower courts ruled in the club’s favor,
employee challenging the employment
2005, and furnished registered partners
holding that the Unruh Act did not
decisions by a supervisor engaged in,
most of the rights of spouses under
forbid discrimination based on marital
or believed to be engaged in, an office
state law. Not surprisingly (in light of
status. The state Supreme Court,
romance. Quite simply, any employee
the recently passed Domestic Partner
however, disagreed, stating that marital
who knows about an office romance
Act), the court ruled that California
status discrimination is categorically
and receives some adverse employment
businesses must treat registered
prohibited when the customers are
action can potentially file a lawsuit.
domestic partners the same as married
registered domestic partners. Indeed,
couples. (For a complete review of this
California’s high court unanimously
legislation, see our September 2004
decided, “A business that extends
Employment Law Commentary available
benefits to spouses it denies to
at http://www.mofo.com/docs/PDF/
registered domestic partners engages
ELC0904.pdf.)
in impermissible marital status
The real world importance of this
decision cannot be overstated. For
example, a recent survey conducted
this year by Vault, Inc., found that
58% of employees had dated someone
at work, up from 46% two years ago.
Koebke involved a lesbian couple who
Among the 600 respondents, the
were registered domestic partners. They
survey found that 14% had dated a
sued the defendant country club to
boss or supervisor, while 19% dated a
which one of them belonged, claiming
subordinate. Careerbuilder.com also
the club’s refusal to extend to them
conducted a survey this year that found
certain benefits it extended to married
that, among 1,300 respondents, 75%
members of the club constituted
believed that employees should be able
marital status discrimination under
to date anyone they wish at work.
California’s Unruh Civil Rights Act
Thus, not only are office affairs
becoming more widespread in the
membership, and discourage the club’s
“legitimate goal of creating a familyfriendly environment by welcoming
the immediate family of married
members.”
discrimination.” Thus, because a chief
goal of the Domestic Partner Act is
to equalize the status of registered
domestic partners and married couples,
the Unruh Act barred the club from
granting married couples benefits
denied to individuals registered as
domestic partners under the Domestic
Partner Act.
(California Civil Code section 51),
Notably, the Domestic Partner Act,
which requires businesses to treat
initially passed in 2000, provided
customers equally. The club argued the
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“adverse employment action”; and (iii)
In its decision, the California Supreme
held that the “continuing violations”
Court first reaffirmed the established
only limited benefits at first. However,
doctrine is applicable to retaliation
principle that “protected activity”
the 2005 version includes far more
claims. The general consequences
includes complaints or opposition to
expansive rights and is arguably the
flowing from the court’s resolution of
conduct that the employee “reasonably”
broadest such measure in the nation,
the foregoing issues, discussed below,
and in “good faith” believes to be
effectively granting spousal status,
are to make it correspondingly more
unlawful, even if the conduct is not
except for joint tax filing under state
difficult for employers to dispose of
actually prohibited by the FEHA. In
law and the numerous rights of married
retaliation claims prior to trial.
probably the most far-reaching portion
couples under federal law. And, after
Koebke, domestic partners now enjoy
equal treatment by businesses.
In Yanowitz, the plaintiff served as
a Regional Sales Manager employed
by L’Oreal USA, Inc. She alleged
YANOWITZ V. L’OREAL USA,
INC.–RETALIATIONS SUITS
BECOME EVEN MORE PERILOUS
that a male supervisor repeatedly
In the wake of Yanowitz v. L’Oreal USA,
view, was not sufficiently attractive.
Inc. (August 11, 2005) Cal.LEXIS
The plaintiff asked for an “adequate
8594, California employers now face
justification” before she would
greater exposure to retaliation suits
terminate the associate. No other
brought under the Fair Employment
justification was given, and plaintiff
and Housing Act (FEHA). Quite
refused to comply with the termination
simply, Yanowitz significantly expands
order. In her lawsuit, plaintiff alleged
employees’ rights to sue for retaliation,
that she refused the order because
and in so doing, further opens the
she felt it was sex discrimination.
courthouse doors to these already
Critically, however, plaintiff never
problematic lawsuits.
told her superior, nor anyone else at
In order to establish a claim for
retaliation, an employee must establish
that he or she engaged in “protected
activity”(i.e., opposed unlawful
conduct); that he or she sustained an
“adverse employment action” because
of that activity; and that he or she
suffered damages. In Yanowitz, the
California Supreme Court: (i) clarified
the standard for opposing unlawful
conduct; (ii) resolved a conflict among
the lower courts about how to define an
ordered her to terminate a female
sales associate who, in the superior’s
L’Oreal, about her belief the order
was discriminatory. After refusing to
comply with the order, plaintiff alleged
she received heightened scrutiny and
increasingly hostile adverse treatment.
This treatment included management
soliciting negative information about
plaintiff from her subordinates and
increased verbal and written criticism
of plaintiff’s performance. Prior to this
incident, however, plaintiff received
universally good reviews and awards.
Page 8
of its decision, the California Supreme
Court went on to hold that it is not
necessary in all cases for an employee
to expressly indicate to the employer
that he or she believes the challenged
conduct is discriminatory. Instead,
according to the court, protected
activity occurs “when the circumstances
surrounding an employee’s conduct are
sufficient to establish that an employer
knew that an employee’s refusal to
comply with an order was based on
the employee’s reasonable belief that
the order is discriminatory … [and]
the employee [need] not explicitly
inform the employer that she believed
the order was discriminatory.” While
a wholly unarticulated belief that an
employer is engaging in discrimination
will not suffice to establish protected
activity, according to the Supreme
Court, the relevant question is not
whether a formal accusation of
discrimination is made, but whether
the employee’s communications to the
employer sufficiently conveyed the
employee’s reasonable concerns that the
employer has acted or is acting in an
unlawful discriminatory manner.
employment law co mmentary
Thus, the court concluded that
federal “harassment” law, the Yanowitz
relied on had occurred years earlier.
plaintiff’s requests for an “adequate
court indicated that a “material impact”
The court rejected the argument
justification” before she would
does not require that an employee
and held that where an employee
terminate the employee, were sufficient
suffer an economic detriment or
alleges a retaliatory course of conduct
to raise a triable issue of fact whether
psychological injury. While mere
(as compared to discrete acts), the
she had engaged in protected activity,
offensive utterances or petty social
“continuing violations” doctrine applies
even though plaintiff never explicitly
slights are not actionable, the Supreme
and the statute of limitations does
mentioned that she thought the
Court held that FEHA’s anti-retaliation
not begin to run on any of the related
termination order was discriminatory.
language protects employees from “the
alleged retaliatory acts until the adverse
In reaching that conclusion, the
entire spectrum of employment actions
employment action acquires some
Supreme Court found it significant
that are reasonably likely to adversely
degree of permanence or finality.
that the employer had never inquired
and materially affect an employee’s
what plaintiff meant by the use of
job performance or opportunity for
the term “adequate justification.” The
advancement in his or her career.”
troubling aspect of this conclusion,
Without belaboring the obvious, this
conclusion is also terrible news for
employers. Previously, employers could
Further, and perhaps more
reliably (and at a minimal cost) dispose
importantly, the court noted there is
of meritless actions that did not fall
no requirement that an employer’s
within the one-year statutory period.
retaliation “constitute one swift blow,
Now, however, future plaintiffs (and
rather than a series of subtle, yet
their counsel) facing a problematic
damaging, injuries.” Thus, according
statute of limitations issue in a
to the court, the proper approach is
contemplated action can plead around
not to look at each alleged retaliation
this jurisdictional bar by alleging
action individually to see if it meets
there has been a pattern of retaliatory
In Yanowitz, the court also resolved
the “materiality” standard. Rather,
conduct such that any perceived statute
a dispute among the lower courts
courts should look at the totality of
of limitations problem is cleansed by
as to the definition of an “adverse
the employer’s actions to see if they
the continuing violations doctrine. As
employment action.” The court agreed
collectively rise to the level of having a
a result, the employer will have lost an
with the view taken by two California
material impact on the employee.
effective and straightforward defense to
as pointed out by the dissent, is that
in some circumstances, employers
will have the burden of investigating
and/or discovering the underlying basis
(i.e., a feeling that improper conduct
is occurring) for seemingly benign
requests from subordinates regarding
business practices.
appellate courts, and most federal
circuit courts under Title VII, that an
adverse employment action is one that
“materially” impacts a plaintiff’s terms
and conditions of employment. While
the court adopted the “materiality test”
over the “deterrence test” for purposes
of a FEHA retaliation claim, the court
gave the concept of “materiality” an
expansive reading. Borrowing from
Finally, the court also held that
the lawsuit.
an employee can bring a claim for
retaliation based on conduct that
occurred years earlier as long as the
employee alleges that it is part of a
pattern of retaliatory conduct. Under
the FEHA, an employee generally has
Greg A. Klawitter is an associate
one year to make a claim for retaliation
in our San Diego office and
with the state agency. Defendants
argued that many of the acts plaintiff
Page 9
can be reached by telephone at
(858) 720-5177 or by e-mail at
[email protected].
MORRISON
Workplace
Continued from Page 5
&
FOERSTER LLP
as harassing to any protected group.
prohibited in the future and was not
The accumulation of several different
protected by the First Amendment.
incidents by different employees can
create a hostile work environment.
Because it is impossible for an employer
the complaint by the employee. Ibid.
to know how many subjectively
The employer was held liable for many
offensive statements will create liability,
offenses, including negligently failing
the better approach is not to tolerate
to prevent harassment,1 and intentional
any harassing speech. Employers
infliction of emotional distress. The
should have clear policies forbidding
employee was awarded $15,000 in
workplace harassment, including
compensatory damages for intentional
a place for employees to go if they
infliction of emotional distress. The
are feeling harassed, uncomfortable,
Marigny court granted the employee a
threatened, or intimidated. The
new trial to determine a new damages
Marigny case demonstrates that
award. The Marigny court reversed
statements such as “everyone has the
the lower court’s finding that there
right to express themselves” will not
was insufficient proof of malice to
be viewed favorably by California
warrant punitive damages, because
courts. Id. at *2. Employers should
there was evidence that management
take seriously every complaint by
dealt with the employee’s complaints
an employee of harassment in the
in a “negative and dismissive” manner,
workplace.
There is more than one method of
obtaining speech-based injunctions
in California. Besides an Aguilar
injunction obtained in a FEHA case,
California allows a person, or an
employer on behalf of an employee,
to seek an injunction from harassing
or threatening speech or conduct. Cal.
Code of Civil Procedure (C.C.P.)
§ 527.6, § 527.8. California law
allows a person who has suffered
“harassment” to seek a temporary
restraining order and an injunction
prohibiting future harassment. Cal.
Code of Civil Procedure (C.C.P.) §
527.6. The statute defines “harassment”
as “unlawful violence, a credible
threat of violence, or a knowing and
willful course of conduct directed at a
specific person that seriously alarms,
including the statement that the
harassing employees were “expressing”
At least one California court has
annoys, or harasses the person and
their views. Id. at *5. Because the new
imposed a speech-based injunction
that serves no legitimate purpose.”
award will include punitive damages
on an employer and instructed the
Petitioners are allowed to obtain section
and because the jury will be allowed to
employer to prevent future harassing
527.6 injunctions to prevent future
hear the actual harassing words uttered
speech in the workplace. In Aguilar,
harassment as long as “constitutionally
by the supervisor,2 the new award for
under the terms of the injunction, the
protected activity is not included.” Cal.
damages could well exceed $15,000,
employer can be held in contempt
C.C.P. § 527.6(b)(3). This exemption
assuming the case does not settle prior
of court if the employer is unable to
of “constitutionally protected” speech
to trial.
stop an employee from saying certain
does not define which actions or words
words. The California Supreme Court
are protected by the constitution.
Given the current state of the law, the
in Aguilar found that speech that
Injunctions that are too broad would
best advice for employers is to forbid
was defined as “harassing” could be
presumably include “constitutionally
all speech that is or may be perceived
protected” speech.
Page 10
employment law co mmentary
If an employer is served with an
clauses were unconstitutional. Id. at
these scholars suggest the employer
injunction requiring the employer to
778-779. An employer facing a court-
could argue the speech was permissible
prevent future harassing speech in the
imposed injuction could argue that
and protected free speech.
workplace (as in Aguilar), the employer
injunctions on speech are overbroad
could challenge the injunction on
prior restraints that are content-and
First Amendment grounds. California
viewpoint-based. These arguments will
courts (such as in Aguilar) have found
trigger strict scrutiny, and the court
that injunctions forbidding future
will have to ensure the injunction is
harassing speech violate the First
narrowly tailored.
Amendment if the injunctions are
overbroad or are not narrowly tailored.
2. Is There a Free Speech Defense?
An injunction to quell future speech
As shown above, an employer can be
is clearly a state action, and therefore
sued and enjoined for failing to prevent
when a speech-based injunction is
harassing speech in the workplace.
issued, free speech concerns must be
Courts are hesitant to restrain “core
political speech,” and sometimes the
harassing speech might arguably be
political in nature. If that is so, some
scholars suggest the employer may
be able to defend a practice of not
quelling speech on First Amendment
grounds in a case where the allegedly
harassing speech could be defined as
“core political speech.” Core political
speech includes political opinions,
addressed. To survive a constitutional
challenge, the injunction may not be
overbroad or vague, and there must be
alternative avenues for the employees to
express their views. An example where
a California court struck down parts of
an injunction on free speech grounds
is Krell v. Gray (2005) 24 Cal. Rptr.
3d 764. In Krell, a § 527.6 injunction
If an employer is served with an injunction requiring
the employer to prevent future harassing speech
in the workplace (as in Aguilar), the employer
could challenge the injunction on First Amendment
grounds.
was sought by a principal against a
former employee. The former employee
was picketing outside the school with
signs containing derogatory statements
The employers in Aguilar and Marigny
about the principal. The court found
were both held liable for failing to do
the provisions of the injunction which
so. There is very little case law on a
prohibited the former employee from
free speech defense, but many scholars
including the name of the principal
have suggested employers can assert
on any signs, and prevented him
free speech defenses to Title VII and
from picketing within 100 yards of
FEHA lawsuits. If an employer is sued
the school, were overbroad and not
for failing to prevent harassing speech,
religious views, or views of a protected
group. A free speech defense will have
more chance of success if a limited
number of statements were made, the
statements “expressed political views
about a controversial political issue,”
and the statements were not directed at
narrowly tailored and therefore those
Continued on Page 12
Page 11
MORRISON
This newsletter addresses recent employment
law developments. Because of its generality,
the information provided herein may not be
applicable in all situations and should not be
acted upon without specific legal advice based on
particular situations.
Editor: Lloyd W. Aubry, Jr., (415) 268-6558
&
FOERSTER LLP
Continued from Page 11
San Francisco
-------------------------------------------------Lloyd W. Aubry, Jr.
James E. Boddy, Jr.
Judith Droz Keyes
James C. Paras
Linda E. Shostak
(415) 268-6558
[email protected]
(415) 268-7081
[email protected]
(415) 268-6638
[email protected]
(415) 268-7087
[email protected]
(415) 268-7202
[email protected]
Palo Alto
-------------------------------------------------David J. Murphy
Eric A. Tate
Raymond L. Wheeler
Tom E. Wilson
(650) 813-5945
[email protected]
(650) 813-5791
[email protected]
(650) 813-5656
[email protected]
(650) 813-5604
[email protected]
Los Angeles
-------------------------------------------------Sarvenaz Bahar
Michael Chamberlin
Timothy F. Ryan
Janie F. Schulman
B. Scott Silverman
Marcus A. Torrano
(213) 892-5744
[email protected]
(213) 892-5256
[email protected]
(213) 892-5388
[email protected]
(213) 892-5393
[email protected]
(213) 892-5401
[email protected]
(213) 892-5416
[email protected]
New York
-------------------------------------------------Miriam H. Wugmeister
(212) 506-7213
[email protected]
harassment claims) in the workplace
the plaintiff or not meant to hurt the
While it is interesting to consider
Perhaps more guidance to this defense
types of speech in the workplace, it is
will be offered by the California
unclear how much First Amendment
Supreme Court in a pending case,
protection exists for speech that occurs
Lyle v. Warner Brothers, a depublished
in the workplace, though the California
Court of Appeals opinion at 117 Cal.
Supreme Court should soon provide
App. 4th 1164 (2004), which addresses
some guidance on the issue. In order to
whether “creative necessity” is a defense
avoid liability, employers should seek
to a hostile work environment claim.
to have workplaces free from clearly
In Lyle, plaintiff was a writers’ assistant
harassing speech regardless of the
present during writers’ conferences
on the TV show “Friends” and was
coarse and vulgar language. After her
1
“creative necessity” defense which the
Steven M. Zadravecz
(949) 251-7541
[email protected]
(949) 251-7532
[email protected]
San Diego
-------------------------------------------------Rick Bergstrom
Craig A. Schloss
(858) 720-5143
[email protected]
(858) 720-5134
[email protected]
Century City
-------------------------------------------------Ivy Kagan Bierman
(310) 203-4002
[email protected]
Denver
-------------------------------------------------Stephen S. Dunham
Steven M. Kaufmann
Tarek F.M. Saad
(303) 592-2251
[email protected]
(303) 592-2236
[email protected]
(303) 592-2269
[email protected]
London
-------------------------------------------------Ann Bevitt
Simeon Spencer
David C. Warner
44-20-7896-5841
[email protected]
44-20-7896-5843
[email protected]
44-20-7896-5844
[email protected]
If you have a change of address, please write to
Chris Lenwell, Morrison & Foerster LLP, 425 Market
Street, San Francisco, California 94105-2482, or
e-mail him at [email protected].
www.mofo.com
© 2005 Morrison & Foerster LLP. All Rights Reserved.
Printed on Recycled Paper
potential for First Amendment defenses.
--------------
Orange County
-------------------------------------------------Robert A. Naeve
First Amendment defenses to certain
subjected to a stream of sexually
termination, she filed a claim for sexual
(703) 760-7795
[email protected]
can be very expensive for employers.
plaintiff. Peterson, 358 F.3d at 605.
Washington, D.C./Northern Virginia
-------------------------------------------------Daniel P. Westman
each other. Harassing speech (and
harassment. Defendants asserted a
Court of Appeals did not fully accept.
The Supreme Court accepted review
limited to the following: “(1) does
the use of sexually coarse and vulgar
language in the workplace constitute
harassment, and (2) does potential
imposition of liability for sexual
The court noted, “Mercury had a duty under
the FEHA ‘not only to prevent harassment,
but once it became aware of harassment to take
reasonable steps to prevent it.’ Courts have
interpreted this provision as creating a tort
sounding in negligence with the usual elements of
breach of duty, causation and damages.” Marigny
at *4.
The original trial court would not allow the
jury to hear the actual harassing words spoken
by the supervisor because the court allowed
the employer to concede that the words were
inappropriate. The Marigny court noted that if
the jury had heard the actual harassing words, “it
is reasonably probable that the jury would have
awarded a greater sum in damages for intentional
infliction of emotional distress.” Marigny at *12.
2
------------------
harassment for such speech violate
defendant’s rights of free speech.” With
the issue presented this way, the Lyle
case should provide some answers to the
questions posed in this article.
CONCLUSION
Natalie A. Fleming was a summer
associate in our San Francisco office.
Lloyd W. Aubry, Jr. is Of Counsel in
Harassing speech and free speech
our San Francisco office and can be
rights are sometimes in conflict with
reached at (415) 268-6558 or by
e-mail at [email protected].