Aguilar v. Avis Rent A Car System

ORDER

Review Granted
OSCAR AGUILAR et al., Respondents, v. AVIS RENT A CAR SYSTEM et al., Appellants. No. S054561 C.A. 1st, Div. 5, No. A069353 California Supreme Court Filed September 4, 1996
        Petition for review granted.



[Editor's Note - The above-mentioned Court of Appeal case has been granted review by the California Supreme Court. For your convenience we reprint below the Daily Journal Rulings Column brief which summarized the earlier decision of the lower court.]


EMPLOYMENT LAW


Properly Limited Jurisdiction Barring Manager's Racist Epithets in Workplace Will Not Be Unconstitutional Prior Restraint.         The C.A. 1st has held that a manager's workplace use of discriminatory epithets was severe enough to alter the conditions of employment and an injunction proscribing the use of such language was not an unconstitutional prior restraint on the manager's speech.
        Seventeen Hispanic employees of Avis Rent-A-Car System Inc. who worked as drivers at its San Francisco airport location sued Avis and 10 individual managers alleging employment discrimination in violation of the Fair Employment and Housing Act (FEHA). The complaint alleged that the individual defendants had engaged in racially discriminatory harassment which created an abusive work environment. The employees stated that John Lawrence, the service station manager, routinely called them "motherfuckers" and other derogatory names, and demeaned them on the basis of their race, national origin and lack of English language skills. A jury found racial discrimination as to eight plaintiffs and awarded them damages for emotional distress. After the verdicts, the trial judge granted an injunction requiring that Lawrence and Avis stop all harassment of Hispanic employees. The language of the injunction specified racial slurs and touchings, and extended beyond the San Francisco airport location.
        The C.A. 1st reversed and remanded. Discriminatory harassment is enjoinable under the FEHA. R.A.V. v. St. Paul invalidated a city ordinance against cross burning because the ordinance did not proscribe all fighting words but discriminated against a content-based subclass of them based on race, color, creed, religion or gender. R.A.V. enunciated an exception to the rule which allows the prohibition of expression because of its secondary effects rather than its content. The opinion used sexual harassment as an example. "R.A.V.'s singling out of sexist epithets tells us that the law against severe or pervasive workplace use of racist epithets creating an abusive work environment is alive and well." Racist epithets express a discriminatory idea or philosophy - racial supremacy. But their pervasive use in the workplace is not shielded under Title VII and FEHA because the target of the regulation is the secondary effect of the conduct - employment discrimination - not its expressive conduct. Where workplace use of discriminatory epithets is severe enough to alter the conditions of employment, it can be proscribed in order to prevent the secondary effects of an abusive work environment. However, since the injunction was a remedy for a FEHA violation, it had to be limited in scope to the workplace. In addition, because of vagueness concerns, an exemplary list of prohibited epithets such as those actually used by Lawrence had to be added. The judgment was remanded for those modifications.

        Aguilar v. Avis Rent a Car System. et al., C.A. 1st, filed May 21, 1996 by King, J.
        The full text of this case appears at 96 Daily Journal DAR 5899, May 24, 1996.

98 Daily Appellate Report