If you happen to be an employer, a First Amendment absolutist or a trash-talking loser, life became a bit more difficult last week.
That’s because the California Supreme Court forbade the future use of racial slurs in a workplace that has already been found by a court to be a hostile environment and likely to remain so.
While the decision is not binding outside of California, or on the federal courts, it is extremely significant nonetheless. Until now, a racist’s worst nightmare was being penalized for his past behavior, but now he can be legally muzzled to prevent his invective from spewing forth in the first place.
As early as 1991, Avis service agent John Lawrence allegedly began informing his Latino subordinates that they were “wetbacks,” “motherfuckers” and “crooks” and routinely demeaning their English language skills, among his many other insults.
Seventeen of them took Avis and Lawrence, who denies the allegations, to court. In 1995, a jury found in the workers’ favor, awarding eight of them a total of $150,000 in damages. In addition, Judge Carlos Bea enjoined Lawrence (who still has his job) from engaging in further such speech, and enjoined Avis from allowing him to.
Avis appealed its injunction, citing the First Amendment and both the U.S. and California constitutions’ prohibitions against prior restraint on speech. The 4-3 decision last week, which generated five separate opinions (the plurality decision written by Chief Justice Ronald George, a separate, more radical concurrence and one from each of the dissenters), is controversial, to put it mildly.
While courts have addressed the issue of workplace harassment many times and assessed damages after the fact, this is the first time one has taken the logical next step and enjoined the future use of offensive language.
Legal experts say the decision is very narrowly tailored because it addresses only racial slurs, not religious proselytizing, sexual remarks or political statements. It also applies only after illegal employment discrimination (i.e. the existence of a hostile environment) has been found by a court of law.
Narrow, shmarrow. When it comes to America, race and the Constitution, there’s just no such thing as narrow. Emotions run so high, we’re always either teetering on the abyss of tyranny or singing in a heavenly choir of angels, depending on your politics, and this case is no different.
In her dissent, the court’s most outspoken conservative, Justice Janice Rogers, blasted the decision: “A government that tells its citizens what they may say will soon be dictating what they may think.” Amazingly, Rogers was joined in dissent by two stalwart liberal bedfellows, Justices Stanley Mosk and Joyce Kennard.
Our hallowed freedom of speech has never been absolute. You can’t yell “fire” in a crowded theater (although you may think it), solicit bribes, make terrorist threats, slander another, intentionally inflict emotional distress or be “obscene” (whatever that means).
So, if speech has always been limited and the speech at issue is not constitutionally protected (because the plaintiffs are not free to walk away), why is this such a big deal? After all, as Justice George wrote, “The order simply precluded defendants from continuing their unlawful activity.”
Well, one reason it’s a big deal is that the unlawful activity likely only seems easy to identify and outlaw. The state Supreme Court upheld the Court of Appeals requirement that Judge Bea promulgate a list of the proscribed words that Lawrence may not utter.
This is ludicrous. What if Bea forgets one? Is it “spic” or “spick”? Lawrence could easily coin nonsense words to convey his contempt for Hispanics, speak with a Jose Jimenez accent, refuse to address them directly or get a buddy to say the words for him. Maybe he is just smart and evil enough to switch from harassing “wetbacks” to the “gooks” or “kikes.”
If so, it could take another five years of court proceedings to stifle the bum.
Also, the fact that the court deemed Lawrence’s bailiwick a hostile environment a few years ago doesn’t mean it must always be so. Avis could install cameras and tape recorders to keep Lawrence honest. Given the turnover in minimum wage operations like rental car counters and the publicity attendant upon this case, it’s entirely possible that the atmosphere could radically change at Avis with a few new hires.
Justice Mosk wrote, “Like my colleagues, I abhor discrimination in any form. But I feel equally strongly that we cannot use the instrumentality of the courts to penalize speech before we know what was said, to whom, and with what effect.”
Kennard elaborates on the over-broad nature of the ruling, writing that it would outlaw “every utterance of a racial or ethnic insult in the workplace, not just utterances that actually produce a hostile work environment.”
Isolated slurs do not a hostile environment make. So if that environment is the source of the illegality and the basis for the injunction, then it is highly relevant that it might no longer exist.
Silly as it is to have a learned jurist drawing up his own George Carlinesque list of dirty words that may not be uttered, and dangerous as chipping away at the First Amendment is, it’s still a touching gesture. Reading the voluminous, much-footnoted decision, I’m struck once again by how hard we struggle to find solutions to our racial conundrums in this country — affirmative action, busing, minority scholarships, constant litigation and legislation, suburban white boys talking like homeboys.
We should be proud of ourselves. But we should also be realistic. Sometimes, there just isn’t a litigated, legislated, law-based answer to our problems. Sometimes, we just have to stand by, helpless and frustrated, while someone like John Lawrence or Buford Furrow takes advantage of the freedoms that are so wasted on people like them. If the Constitution, and especially the Bill of Rights, is to mean anything, then sometimes, we just have to suppress the urge to implement solutions that may be even worse than the problems they are meant to address.
Instead, here’s a radical suggestion: What if the plaintiffs in the Avis case are encouraged to simply laugh in Lawrence’s face every time he says something offensive? The last time someone called me a nigger, he did so with such a look of vicious triumph on his face — as if he expected me to melt right into the pavement at the power of that evil word — that I couldn’t help myself: I laughed.
“What, I’m not a ‘bitch’ too?” I found myself quipping. All of a sudden, I thought the idiot was going to cry. He was the one who felt crushed. Avis workers, listen up: If John Lawrence acts like an amoeba, treat him like one.
Certainly, there’s a real difference between being a powerless manual laborer working at a crap job who also has to listen to slurs from his boss all day and being a Joe Cool journalist called a name by a homeless beggar I stiffed, but the bottom line is the same. Once you’ve done all you can do (like win a mega-lawsuit) you just have to accept that you’ve done all you can do. If Lawrence doesn’t stop and Avis doesn’t fire him, then the plaintiffs either have to refile their lawsuit, quit or turn the other cheek.
Laws are made for honest people, my mother always told me, and idiots have the same consitutional protections as the rest of us. We probably can’t stop the haters from hating, but even if there are ways to stop the John Lawrences and the Buford Furrows, undermining the Constitution shouldn’t be one of them.