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Aguilar v. AVIS Rent-A-Car System Inc.5/21/1996
KING, J.:
I. INTRODUCTION
In this case we hold that an injunction prohibiting a manager's continued use of racist epithets in the workplace, where such use was sufficiently severe or pervasive to alter the conditions of the victims' employment and create an abusive work environment, does not violate the constitutional proscription against prior restraints, because the injunction targets conduct amounting to employment discrimination as a "secondary effect" of such speech within the meaning of R. A. V. v. St. Paul (1992) 505 U.S. 377, 120 L. Ed. 2d 305, 112 S. Ct. 2538, rather than targeting the expressive content of the speech, and thus is not content based.
The employer, Avis Rent-A-Car System, Inc., and the manager, John Lawrence, challenge the constitutionality of an injunction by which the trial court sought to remedy employment discrimination violating the Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.). The injunction prohibits Lawrence from "using any derogatory racial or ethnic epithets directed at, or descriptive of, Hispanic/Latino employees," and also orders him to refrain from "any uninvited intentional touching" of those employees, as long as he is employed by Avis in California. It is not limited to the workplace.
We conclude that to the extent the injunction prohibits Lawrence from continuing to use racist epithets in the workplace it is constitutionally sound, but to the extent it reaches beyond the workplace it improperly exceeds the scope of the FEHA violation sought to be prevented and must be modified accordingly. We reverse the injunctive portion of the judgment and remand the cause for modification to narrow the injunction's scope and describe the prohibited conduct with further specificity.
II. BACKGROUND
Avis employed the 17 Hispanic/Latino plaintiffs in this case as drivers at its San Francisco airport location, responsible for moving automobiles between parking lots and check-in and service station areas. In 1993, they sued Avis and ten individual managers, alleging multiple causes of action including employment discrimination in violation of FEHA.
According to the complaint, the individual defendants engaged in racially discriminatory harassment which created an abusive work environment. (Gov. Code, § 12940, subd. (h)(1); Kelly-Zurian v. Wohl Shoe Co. (1994) 22 Cal. App. 4th 397, 409.) The basis of an abusive work environment claim is "'discriminatory intimidation, ridicule, and insult' . . . that is 'sufficiently severe or pervasive to alter the conditions of the victim's employment . . . .'" ( Harris v. Forklift Systems, Inc. (1993) 510 U.S. 17 [126 L. Ed. 2d 295, 301, 114 S. Ct. 367], quoting Meritor Savings Bank v. Vinson (1986) 477 U.S. 57, 65, 67, 91 L. Ed. 2d 49, 106 S. Ct. 2399.) The complaint alleged that Lawrence in particular, who was the service station manager, routinely called the plaintiffs "'motherfuckers' and other derogatory names, and continually demeaned them on the basis of their race, national origin and lack of English language skills."
The case went to a jury as to twelve of the plaintiffs, three of the individual defendants, and Avis, with mixed results. The jury found racial discrimination as to eight plaintiffs and awarded each of them damages for emotional distress in the sums of either $15,000 or $25,000, for a total monetary award of $135,000. As to three of these plaintiffs the discrimination was by Lawrence; as to the other five the discrimination was by an Avis employee named Kathy Black who no longer worked at the San Francisco airport location. As to a ninth plaintiff, the jury found discrimination by Lawrence but no emotional
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