United States: Workplace Conflict: Harassment Laws and Free Speech Rights

Morrison & Foerster gratefully acknowledges the assistance of Natalie A. Fleming, a summer association in the firm's San Francisco office, for her assistance in the preparation of this bulletin

Employees have many legal protections in the private workplace, including the right to work in an environment free from harassment. Employees also have certain free speech rights in the private workplace. Yet there are times when these free speech rights and harassment laws collide. This article will discuss conflicts between free 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 publish his or her sentiments on all subjects, being responsible for the abuse of this right. A law may not abridge liberty of speech or press." Article I, section 2, subdivision (a). The California Constitution’s free speech protections are "more definitive and inclusive than the First Amendment." Wilson v. Superior Court (1975) 13 Cal.3d 652, 658.

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. Content- based restrictions "must burden no more speech than necessary to serve a significant government interest." Madsen v. Women’s Health Center Inc. (1994) 512 U.S. 753, 765.

While California values the right of its citizens to speak freely, there are compelling government interests such as those noted above and, as will be seen below, creating harassment-free workplaces, that justify the Legislature and courts in placing restrictions on speech.

Harassment Laws

Harassment laws help "protected groups" obtain equality in the workplace. In California, harassment claims are based on the Fair Employment and Housing Act ("FEHA") and Title VII of the Civil Rights Act of 1964 ("Title VII"). FEHA provides, "It is hereby declared as the public policy of this state that it is necessary to protect and safeguard the right and opportunity of all persons to seek, obtain, and hold employment without discrimination or abridgment on account of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, or sexual orientation." (Cal. Gov. Code § 12920). The U.S. Supreme Court declared that both quid pro quo harassment and the existence of a hostile work environment are violations of Title VII. Harris v. Forklift Systems, Inc. (1993) 510 U.S. 17; Meritor Savings Bank, FSB v. Vinson (1986) 477 U.S. 57.

Most scholars agree that quid pro quo harassment is unprotected by the First Amendment in the same manner as threats and extortion. This article will discuss hostile work environment claims where a severe and pervasive environment of harassment creates a situation that violates Title VII or FEHA. Generally, a single racial or sexual epithet is not considered severe and pervasive. See e.g. the plurality opinion in Aguilar v. Avis (1999) 21 Cal.4th 121, at 146, fn. 9, which noted in dictum, "a single use of a racial epithet, standing alone, would not create a hostile working environment." See also Etter v. Veriflo Corp. (1998) 67 Cal. App. 4th 457, 467, which held racial harassment cannot be "occasional, isolated, sporadic, or trivial." On the other hand, a single, very severe incident can constitute harassment. See e.g. Etter v. Veriflo Corp., at 467, which noted a very severe incident could constitute harassment, citing several cases such as Vance v. Southern Bell Tel. and Tel. Co., 863 F.2d 1503 (11th Cir. 1989) (two incidents in which a noose was hung over the employee’s work station were sufficiently severe to constitute harassment); and Doe v. Capital Cities (1996) 50 Cal. App. 4th 1038, 1045 (a single violent sexual assault constituted harassment). If several employees make comments that are 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 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.

Harassment laws require private employers to restrict speech or literary matter in the private workplace, and therefore harassment laws may conflict with the free speech rights of employees.

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 applied to sexual harassment claims founded solely on verbal insults, pictorial or literary matter, the statute imposes content-based, viewpoint-discriminatory 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 conflicts by balancing the right of employees to be free from harassment and the right of employees to speak freely.

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 have known about the harassment and failed to do anything about it. The court also imposed an injunction forbidding the supervisor from uttering racial slurs which included a list of words that the supervisor was prohibited from speaking at any time in the workplace. Avis, as the employer, was held responsible for ensuring that the supervisor did not speak the forbidden words. The injunction ordered the employer to "cease and desist from allowing the defendant to commit any of these acts described in [the injunction] under which circumstances it knew or should have known of such acts." Id. at 128. Failure to comply with the injunction could cause the employer to be in contempt of court.

The court in Aguilar dealt extensively with the conflict between free speech and harassment laws. The California Supreme Court found the injunction forbidding specified words from the workplace was constitutional because the injunction forbade the perpetuation of illegal activity. Id. at 147. A concurring opinion suggested the majority too easily assumed harassing workplace speech is exempt from First Amendment protections, but the concurring judge still found that because of the captive audience; the time, place, and manner of the restriction; and the availability of alternate forums for speech, the injunction did not violate state or federal constitutional protections. Id. at 148. The injunction in Aguilar was a very broad restriction on speech. Although a single racial epithet will rarely be declared a hostile work environment, the court found that any mention of the racial slurs, even if they were spoken outside the hearing of the plaintiffs, was forbidden. The court allowed a prohibition of racial epithets even when they were spoken outside the hearing of the plaintiffs because "continual use of racial epithets poisons the atmosphere of the workplace, even when some of the invective is not directed at or even heard by the victims." Id. at 145. Because the specific words prohibited by the injunction had been declared harassing, the court found these words could be forbidden in the future. The court harmonized free speech rights and harassment laws by claiming that an injunction on speech was warranted because of the compelling government interest in forbidding the perpetuation of illegal activity.

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 Cir. 2004), an employee claimed that he was unjustly fired after exercising freedom of religion and freedom of speech. In Peterson, the employee was fired for refusing to take down Bible verses from his cubicle. The employee claimed that he was offended by the employer’s diversity posters which condoned homosexuality. The employee stated, "as long as Hewlett Packard is condoning [homosexuality] I’m going to oppose it." Id. at 602. The Bible verses were unprotected by the First Amendment because the words were intended to be offensive to 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. The court pointed out the diversity campaign was meant to promote tolerance, and not intended to create offense. 358 F. 3d at 604. The court decided that the Bible verses were not protected speech, partially because the employee admitted that the verses were meant to be hurtful and to convince homosexual coworkers to change their behavior. The court noted, "an employee’s opposition to a policy of 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 unclear whether the Bible verses would have been protected if the employee had been intending to express his views in a non-hurtful manner. The content and purpose of the speech, as well as the identity of those offended by it, were important elements for the court in deciding whether the speech was protected by the First Amendment.

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 prohibited by [the employer’s] policy." The court noted First Amendment rights may only be freely exercised as long as the speech does not violate a harassment policy.

Advice for Employers

Case Studies — Employer Liability, Including Injunctive Relief

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 liability. Employers can be subject to compensatory damages, punitive damages, and injunctions on future employee speech.

A case which demonstrates the danger of allowing "too much" speech in the workplace is Marigny v. Mercury Air Center, an unpublished California 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 21978622, at *2 (unpublished decision). The court described the employer’s statement that "everyone has the right to express themselves" as "brushing off" the complaint by the employee. Ibid. The employer was held liable for many offenses, including negligently failing to prevent harassment,1 and intentional infliction of emotional distress. The employee was awarded $15,000 in compensatory damages for intentional infliction of emotional distress. The Marigny court granted the employee a new trial to determine a new damages award. The Marigny court reversed the lower court’s finding that there was insufficient proof of malice to warrant punitive damages, because there was evidence that management dealt with the employee’s complaints in a "negative and dismissive" manner, including the statement that the harassing employees were "expressing" their views. Id. at *5. Because the new award will include punitive damages and because the jury will be allowed to hear the actual harassing words uttered by the supervisor,2 the new award for damages could well exceed $15,000, assuming the case does not settle prior to trial.

Given the current state of the law, the best advice for employers is to forbid all speech that is or may be perceived as harassing to any protected group. The accumulation of several different incidents by different employees can create a hostile work environment. Because it is impossible for an employer to know how many subjectively offensive statements will create liability, the better approach is not to tolerate any harassing speech. Employers should have clear policies forbidding workplace harassment, including a place for employees to go if they are feeling harassed, uncomfortable, threatened, or intimidated. The Marigny case demonstrates that statements such as "everyone has the right to express themselves" will not be viewed favorably by California courts. Id. at *2. Employers should take seriously every complaint by an employee of harassment in the workplace.

At least one California court has imposed a speech-based injunction on an employer and instructed the employer to prevent future harassing speech in the workplace. In Aguilar, under the terms of the injunction, the employer can be held in contempt of court if the employer is unable to stop an employee from saying certain words. The California Supreme Court in Aguilar found that speech that was defined as "harassing" could be prohibited in the future and was not protected by the First Amendment.

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, annoys, or harasses the person and that serves no legitimate purpose." Petitioners are allowed to obtain section 527.6 injunctions to prevent future harassment as long as "constitutionally protected activity is not included." Cal. C.C.P. § 527.6(b)(3). This exemption of "constitutionally protected" speech does not define which actions or words are protected by the constitution. Injunctions that are too broad would presumably include "constitutionally protected" speech.

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. California courts (such as in Aguilar) have found that injunctions forbidding future harassing speech violate the First Amendment if the injunctions are overbroad or are not narrowly tailored. An injunction to quell future speech is clearly a state action, and therefore when a speech-based injunction is issued, free speech concerns must be 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 was sought by a principal against a former employee. The former employee was picketing outside the school with signs containing derogatory statements about the principal. The court found the provisions of the injunction which prohibited the former employee from including the name of the principal on any signs, and prevented him from picketing within 100 yards of the school, were overbroad and not narrowly tailored and therefore those clauses were unconstitutional. Id. at 778-779. An employer facing a court-imposed injuction could argue that injunctions on speech are overbroad prior restraints that are content-and viewpoint-based. These arguments will trigger strict scrutiny, and the court will have to ensure the injunction is narrowly tailored.

Is There a Free Speech Defense?

As shown above, an employer can be sued and enjoined for failing to prevent harassing speech in the workplace. The employers in Aguilar and Marigny were both held liable for failing to do so. There is very little case law on a free speech defense, but many scholars have suggested employers can assert free speech defenses to Title VII and FEHA lawsuits. If an employer is sued for failing to prevent harassing speech, these scholars suggest the employer could argue the speech was permissible and protected free speech.

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, 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 the plaintiff or not meant to hurt the plaintiff. Peterson, 358 F.3d at 605.

Perhaps more guidance to this defense will be offered by the California Supreme Court in a pending case, Lyle v. Warner Brothers, a depublished Court of Appeals opinion at 117 Cal. App. 4th 1164 (2004), which addresses whether "creative necessity" is a defense to a hostile work environment claim. In Lyle, plaintiff was a writers’ assistant present during writers’ conferences on the TV show "Friends" and was subjected to a stream of sexually coarse and vulgar language. After her termination, she filed a claim for sexual harassment. Defendants asserted a "creative necessity" defense which the 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 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.


Harassing speech and free speech rights are sometimes in conflict with each other. Harassing speech (and harassment claims) in the workplace can be very expensive for employers. While it is interesting to consider First Amendment defenses to certain types of speech in the workplace, it is unclear how much First Amendment protection exists for speech that occurs in the workplace, though the California Supreme Court should soon provide some guidance on the issue. In order to avoid liability, employers should seek to have workplaces free from clearly harassing speech regardless of the potential for First Amendment defenses.


1 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.

2 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.

Because of the generality of this update, 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.

© Morrison & Foerster LLP. All rights reserved

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