Racial Epithet Case Ignites Debate
By Perla Ni

A California Supreme Court decision that allows courts not only to award monetary damages but also bar employees from using racial epithets ever again at work has ignited debate about free speech verses non-discrimination rights.

“A government that tells its citizens what they may say will soon be dictating what they may think,’’ said Justice Janice Rogers Brown, one of the dissenters in last Monday’s 4-3 ruling.

“I don’t think it’s censorship, it’s a very fine line,” said Victor Hwang of the Asian Law Caucus.

A jury had already awarded $135,000 to eight Latino employees of Avis-Rent-a-Car at the San Francisco International Airport who were called derogatory names in 1991 and 1992 by their supervisor, John Lawrence. Lawrence had referred to the employees as “wetbacks,” “crooks” and “m -- f -- s”, according to the San Francisco Daily Journal. The jury found that Avis did nothing to restrain him. San Francisco Judge Carlos Bea further prohibited Lawrence from using these words and ordered Avis to stop him in the future if possible.

“I’m hesitant to say that a judge can say what you can and can’t say,” qualified Hwang, referring to the list of words that the judge deemed racially bigoted. “It should be a reasonable standard. In this case, it doesn’t seem close because the speech was clearly offensive.”

Attorneys for Avis at Curiale, Dellaverson, Hirschfeld, Kelly & Kraemer in Los Angeles did not return phone calls.

While damages are commonly awarded in racial harassment and discrimination lawsuits, what is precedent-setting about last week’s decision was the judge’s order to prohibit the supervisor involved from using bigoted words in the future.

“Certainly this case in California is an anomaly and ground-breaking. It could potentially go up to the U.S. Supreme Court,” said John Trasvia, special counsel, Department of Justice Civil Rights Division.

Monetary damages are the norm, but injunctions are a rarely-used remedy for harassment situations because of the freedom-of-speech rights that are triggered. But the majority said free expression isn’t violated by an injunction against bigoted speech that has already been found by a jury to be so extreme and pervasive that it causes a hostile and discriminatory work environment.

One justice, Kathryn Mickle Werdegar, described employees as a “captive audience’’ and said speech can be restricted in the workplace in ways that wouldn’t be allowed elsewhere. She said the workers in this case could have escaped the harassment only by quitting their jobs.

However, Bruce Adelstein, who filed arguments on behalf of the Libertarian Law Council and other groups, said that while speech can cause harm “it is more dangerous for the government to ban it.’’

Acknowledging the value of free speech, other civil rights lawyers support the decision’s balance between speech and discrimination rights. “The thing about race or sex harassment, if someone calls you chink one time, it’s not necessarily legally actionable ... it has to be severe, pervasive and affect working conditions. You have to meet a lot of elements,” said Rose Fua, a lawyer for Equal Rights Advocates.

Lawyers hope that the case will raise awareness about fair employment rights among Asian Americans. The U.S. Department of Justice estimates that Asian Americans under-report discrimination in the workplace. About two-thirds of complaints to the Department of Justice’s toll-free phone number are from Latinos while only 7 percent are from Asian Americans.

“Our sense is that the Asian American community doesn’t complain about discrimination,” said Trasvia. “We’d like to encourage those who are not paid enough, discriminated because of their accent or origin, to come forward and express their rights.”

Associated Press writer Bob Egelko contributed to this story.