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  1. The Webinar Will Begin Soon • Audio • You should hear music playing now. To LISTEN to the training, you must have computer speakers or a headset connected to your computer. The audience is muted throughout the presentation. • Questions • To ask a question, type your question in the Q&A text box, and then clickASK. • Handouts • You may download the presentation. To DOWNLOAD, click the handouts icon and select download.

  2. Freedom of Speech in the WorkplaceBalancing First Amendment Speech & Civil Rights Protections R. Sybil Villanueva, Associate Chief Counsel California Department of Fair Employment & Housing www.dfeh.ca.gov

  3. First Amendment Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances. (U.S. Const., 1st Amend., emphasis added.)

  4. What we will not discuss • Freedom of religion. • Freedom of the press. • Right to assembly. • Freedom to petition the government. • Whistleblower actions. • Political affiliations. • Union organizing.

  5. Freedom of Speech • In general • Public Forum – Marketplace of Ideas. • Private Forum.

  6. Workplace Freedom of Speech Public Sector v. Private Sector But…………….

  7. Limitations • Can speech be limited? • Time. • Place. • Manner.

  8. Workplace Freedom of Speech • “That the speech at issue in this case occurred at plaintiffs' workplace is significant, because the Supreme Court has recognized that speech occurring in the workplace presents special considerations that sometimes permit greater restrictions on First Amendment rights.” (Aguilar v. Avis Rent a Car System, Inc. (1999) 21 Cal.4th 121, 156 (conc. opn. of Werdegar, J.).)

  9. Workplace Freedom of Speech • The Fair Employment and Housing Act and the First Amendment. • Can the FEHA limit the First Amendment?

  10. Harassment • Mogilefsky v. Superior Court (1993) 20 Cal.App.4th 1409. • Same sex. • Stay overnight in boss’ hotel suite. • Boss said employee would receive more money if he cooperated, ordered petitioner to play a pornographic film on the VCR, made lewd and lascivious comments about the film, and asked employee how much he would charge to perform acts similar to those depicted in the film. • Boss falsely implied to others that employee engaged in anal sex with him. • Boss referred to employee in a profane and degrading manner and inquired repeatedly into employee’s private life, including questions regarding his prior relationships. • Very early the next morning, Boss woke employee, requested him to take his clothes off, and told employee that he wanted to sleep next to him.

  11. Harassment • Mogilefsky v. Superior Court (1993) 20 Cal.App.4th 1409. • The court noted that the First Amendment was not implicated because the FEHA protects a legitimate state interest and proscribes conduct rather than pure speech.

  12. Harassment • Aguilar v. Avis Rent a Car System, Inc. (1999) 21 Cal.4th 121. • Manager “verbally harassed [plaintiffs] constantly. He routinely called only the Latino drivers ‘motherfuckers' and other derogatory names, and continually demeaned them on the basis of their race, national origin and lack of English language skills.” • Supervisor conducted a discriminatory investigation into the suspected theft of a calculator from a vehicle, detaining and questioning only Latino employees. Employer told employees that INS would be called if they did not cooperate. The calculator was found the following day, and supervisor apologized to plaintiffs. • Court issued an injunction preventing manager from making harassing statements and preventing employer from conducting discriminatory investigations.

  13. Harassment • Aguilar v. Avis Rent a Car System, Inc. (1999) 21 Cal.4th 121. • “The pervasive use of racial epithets that has been judicially determined to violate the FEHA is not protected by the First Amendment, and such unlawful conduct properly may be enjoined.” • “The injunction at issue is based upon a continuing course of repetitive speech that has been judicially determined to violate the FEHA. Thus, prohibiting Avis and Lawrence from continuing to violate the FEHA does not violate their First Amendment rights.”

  14. Harassment • Lyle v. Warner Bros. Television Productions (2006) 38 Cal.4th 264. • Discussion of writers’ sexual experiences. • Writers showed “coloring book” of body parts. • Writers altered episodes to reflect erotica. • Writers made masturbatory gestures. • Writers discussed their sexual fantasies about female cast members. • Writers spoke demeaningly of a female cast member.

  15. Harassment • Lyle v. Warner Bros. Television Productions (2006) 38 Cal.4th 264, 299-300 (conc. opn. of Chin, J.). • “Where, as here, an employer's product is protected by the First Amendment--whether it be a television program, a newspaper, a book, or any other similar work--the challenged speech should not be actionable if the court finds that the speech arose in the context of the creative and/or editorial process, and it was not directed at or about the plaintiff.”

  16. Discrimination • Department of Corrections v. State Personnel Board (1997) 59 Cal.App.4th 131. • In a private conversation between plaintiff, a White male, and a Hispanic female co-worker, he complained about preferential treatment bestowed on Hispanic employees by CDC, used profane language, and shook co-worker by the collar to emphasize his point. • Co-worker alleged discrimination. • CDC terminated plaintiff.

  17. Discrimination • Department of Corrections v. State Personnel Board (1997) 59 Cal.App.4th 131. • “The discipline imposed on a public employee may not infringe constitutionally protected free speech.” • “This does not mean public employees have an unlimited right to express themselves in the workplace as they see fit. The determination whether a public employee has been properly disciplined for speech related activities requires ‘a balance between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.’”

  18. Discrimination • Pittsburgh Press Co. v. Pittsburgh Commission on Human Relations (1973) 413 U.S. 376. • Pittsburgh ordinance forbids newspapers to carry “help-wanted” advertisements in sex-designated columns except where the employer or advertiser is free to make hiring or employment referral decisions on the basis of sex. • Pittsburgh Press was charged with aiding employers with employers’ unlawful practice because they placed ads for jobs (based on employers’ wishes) in the columns captioned “Male Help Wanted,” “Female Help Wanted,” and “Male-Female Help Wanted;” and thereafter used the captions “Jobs-Male Interest,” “Jobs-Female Interest,” and “Male-Female.”

  19. Discrimination • Pittsburgh Press Co. v. Pittsburgh Commission on Human Relations (1973) 413 U.S. 376. • “Discrimination in employment is not only commercial activity, it is illegal commercial activity under the Ordinance. We have no doubt that a newspaper constitutionally could be forbidden to publish a want ad proposing a sale of narcotics or soliciting prostitutes. Nor would the result be different if the nature of the transaction were indicated by placement under columns captioned ‘Narcotics for Sale’ and ‘Prostitutes Wanted’ rather than stated within the four corners of the advertisement.”

  20. Retaliation • Cozzi v. County of Marin (C.D.Cal. 2011) 787 F.Supp.2d 1047. • Plaintiffs requested the assistance of the members of the Marin County Board of Supervisors in ending the allegedly discriminatory conduct against the older workers.  • Plaintiffs claim County subjected them to repeated acts of retaliation that were designed to force them out of the workplace.

  21. Retaliation • Cozzi v. County of Marin (C.D.Cal. 2011) 787 F.Supp.2d 1047. • “A claim against a government employer for First Amendment retaliation requires that an employee demonstrate that she engaged in protected speech—that is, speech that addresses ‘a matter of legitimate public concern,’ that the employer took adverse employment action, and that her speech was a substantial or motivating factor for the adverse employment action.”

  22. Summary • Employees have freedom of speech. • Freedom of speech can, and are, limited in the workplace. • Civil rights laws, such as the FEHA, limit employees’ speech rights. • Freedom of speech does not mean employers/employees are free to make discriminatory, harassing and retaliatory statements.

  23. Questions • Use the Q&A menu to submit questions. • To ask a question, type your question in the Q&A text box, and then clickAsk.

  24. www.dfeh.ca.govcontact.center@dfeh.ca.gov(800) 884-1684videophone (916) 226-5285 Thank you.

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