When a group of Latino Avis Rent-A-Car employees at the San Francisco International Airport filed a harassment lawsuit charging a manager with using derogatory racial epithets, they were awarded more than $100,000 in damages. But the workers didn’t stop there. They also convinced the court to issue an order barring the manager from making offensive remarks in the future and requiring Avis to prevent further racial harassment.Now, in the first ruling of its kind in the state and perhaps the nation, the California Supreme Court has upheld the ban on derogatory speech by company workers. The controversial ruling, if not overturned by the U.S. Supreme Court, could result in more lawsuits and more government intervention in your workplace.
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Court Order Doesn’t Violate Free Speech
Every employer has a right to forbid workers from making offensive statements on the job based on race, sex, age, religion, disability or any other prohibited ground. In fact, failing to take action to stop such comments opens you up to a harassment lawsuit. But Avis argued that the court order violated constitutional free speech rights because the government shouldn’t regulate what employees can and cannot say. The state Supreme Court, however, ruled that the Constitution doesn’t protect employee speech that creates a hostile work environment in violation of the state’s anti-discrimination laws.
More “Big Brother”
Likely Mary M. Roberts, a partner with the Oakland office of the law firm Crosby, Heafey, Roach & May, told CEA the court’s ruling could lead to more lawsuits in which workers ask not only for money damages, but also for a court order preventing future illegal conduct. Once such an order is in place, your workplace could be subject to ongoing judicial monitoring, including a court-imposed code of conduct. And employees could take you back to court whenever they believe the order has been violated.
Avoiding Lawsuits
The best defense of course is to do everything possible to prevent harassment at work in the first place. If you discover a problem, act promptly and decisively to stop further harassment – before an employee asks a court to step in.