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Harassing and discriminatory verbal abuse in the workplace has long been recognized as a societal ill causing profound psychological, industrial and economic injury. Yet the courts flirt endlessly with the minimum threshold of “how much is enough” under the severe and pervasive standard of discrimination jurisprudence, suggesting a certain limit of tolerable behavior that is arguably unacceptable but nevertheless falls below the bar of actionable conduct. See Harris v. Forklift Systems Inc., 510 U.S. 17 (1993). One could argue that this “unacceptable but inactionable” zone of conduct provides a modicum of free expression in the workplace tantamount to a First Amendment free speech defense. The California Supreme Court had the opportunity to put verbal harassing behavior to the test of free speech in the factually bizarre case of Lyle v. Warner Bros. Television Productions, 38 Cal. 4th 264 (2006). The court granted certiorari on the question of whether the imposition of liability under the California Fair Employment and Housing Act (FEHA), Cal. Gov’t Code � 12940, et seq., for the use of allegedly coarse and vulgar language would infringe on the defendants’ federal and state constitutional rights of free speech. Plaintiff Amaani Lyle was hired as a comedy writers’ assistant on the television show Friends. Before Lyle was hired, she was forewarned that the show dealt with sexual matters and that, as an assistant to the writers, she would be listening to their sexual jokes and discussions about sex while transcribing the jokes and dialogue most likely to be used for scripts. After four months of employment, Lyle was fired because of problems with her typing and transcription. She filed an action for sexual and racial harassment, asserting among other things that the writers’ use of sexually coarse and vulgar language, including the recounting of their own sexual experiences, constituted harassment based on sex within the meaning of the FEHA. California high court’sFirst Amendment analysis The Court of Appeal reversed the trial court’s order granting summary judgment on the plaintiff’s sexual harassment action, and the California Supreme Court granted review, promising to dive into the heady waters of First Amendment protection for harassing speech in the private-sector workplace. Traditionally, wrapping oneself in the protective cloak of expressive freedom has been the exclusive privilege of public employees who claim constitutional foul when disciplined or terminated by their public employer for speaking their mind. See, e.g., Grinzi v. San Diego Hospice Corp., 120 Cal. App. 4th 72, 81 (2004). The majority opinion in Lyle, however, dodged the constitutional bullet by observing that, because the Friends production was a creative workplace focused on generating scripts for a comedy featuring sexual themes, no reasonable trier of fact could conclude such language constituted harassment directed at the plaintiff “because of her sex” within the meaning of the FEHA. As to whether offensive comments about the actresses on Friends were simply salacious and not reasonably necessary for generating scripts, the court again found that no reasonable trier of fact could conclude that these comments were severe enough or sufficiently pervasive to create a workplace that was hostile or abusive to the plaintiff in violation of the FEHA. The Supreme Court then remanded with directions to affirm summary judgment, thereby concluding that it was unnecessary to weigh in on First Amendment protection for harassing speech. Nevertheless, constitutional scholars found-for a moment-a bright spot in the concurring opinion of Justice Ming W. Chin, who tackled the applicability of the First Amendment to the creative process of writing adult comedy scripts. Chin’s opinion focused on creative expression as the defendant television company’s “product,” arguing that “[w]hen, as here, the workplace product is the creative expression itself, free speech rights are paramount.” 38 Cal. 4th at 297. The justice, joined by five colleagues, opined that limitations on sexual harassment should be carefully tailored to avoid infringing on First Amendment free speech rights in the creative process. Chin conceded that “[b]alancing the compelling need to protect employees from sexual harassment with free speech rights can, in some contexts, present very difficult questions,” but he left the “difficult questions” of free speech rights in the ordinary workplace-where speech is not an integral part of the product-to another day. The issue of First Amendment rights in the private sector has perplexed legal scholars for years. The U.S. Supreme Court has held that words which “by their very utterance inflict injury” should not receive constitutional protection. Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942). In Aguilar v. Avis Rent-A-Car System Inc., 21 Cal. 4th 121 (1999), cert. denied, 529 U.S. 1138 (2000), California’s Supreme Court upheld the imposition of an injunction aimed at racist speech in the workplace against the rental car giant and an individual supervisor, despite claims that it would violate First Amendment rights. The court reasoned that the injunction was based on a continuing course of repetitive speech that had been judicially determined to violate the FEHA. As such, prohibiting the defendants from continuing to violate the FEHA did not violate their First Amendment rights. The defense of freedom of speech was, however, squarely addressed in Grinzi v. San Diego Hospice Corp. The plaintiff was terminated for her involvement in an allegedly illegal investment scheme; she asserted that the employer’s true motivation was disapproval of her membership and speech associated with the nonwork-related investment group. In upholding the dismissal of her wrongful termination claim, the court confirmed that “the First Amendment free speech provision expresses a guarantee only against action taken by the government,” leaving private-sector employees without a remedy. 120 Cal. App. 4th at 81. Conversely, the availability of First Amendment protections in the private workplace was upheld in Novosel v. Nationwide Insurance Co., 721 F.2d 894 (3d Cir. 1983). In Novosel, a claims manager declined to participate in his employer’s efforts to lobby for support of the “No Fault Insurance Reform Act.” He was terminated shortly thereafter and asserted it was due to his “privately-stated opposition to the company’s political stand.” In upholding the plaintiff’s ability to assert a violation of his First Amendment right to free speech, the court acknowledged that Novosel was not a public employer, but held that “public employee cases do not confine themselves to the narrow question of state action. Rather, these cases suggest that an important public policy is in fact implicated whenever the power to hire and fire is utilized to dictate the terms of employee political activities.” Id. at 900. First Amendment intrigue is also present in the 8th U.S. Circuit Court of Appeals’ opinion in Dossett v. First State Bank, 399 F.3d 940 (8th Cir. 2005). The plaintiff was a bank employee who spoke her mind at an after-hours public school district meeting, criticizing the school district for not informing the public about the tax consequences of a proposed merger. The school district was an important bank client, and representatives immediately met with the plaintiff’s supervisors to complain about her outspoken views. Two weeks later, the bank terminated her employment. She sued the bank pursuant to 42 U.S.C. 1983, alleging that it conspired with the school district to terminate her employment in retaliation for exercising her free speech rights at a public hearing. The court agreed, noting that a private employer can conspire with a government actor to violate a citizen’s constitutional rights to freedom of speech, thereby upholding the claim against the private employer. First Amendment foothold in the private workplace Grinzi, Novosel and Dossett admittedly do not involve behavior or speech targeted by Title VII of the Civil Rights Act of 1964. They do, however, involve speech that was either voiced in or carried into the workplace, resulting in termination. These cases demonstrate that the First Amendment does have a foothold, however fragile, in the private workplace, requiring at least a respectful analysis before receiving a dismissive wave. But do these cases also suggest that Title VII and its state counterparts always provide a statutory exception for a First Amendment defense against verbal abuse? Not so fast. Chin’s concurring decision all but drew the road map for a new First Amendment-protected environment called the “creative workplace.” It recognized that the tension between free speech and harassing conduct is “especially serious ‘if the speech that creates the hostile work environment is an inherent part of the employer’s business,’ ” concluding that “ [i]t seems clear that . . . a female employee of an art gallery-or . . . of an adult bookstore-cannot claim that sexually explicit materials from the workplace are creating a hostile work environment.” 38 Cal. 4th at 297. Chin opined that the preferred remedy in such cases is summary judgment in favor of the critical right of free speech, “because unnecessary protracted litigation would have a chilling effect upon the exercise of First Amendment rights.” Id. at 300. The concurrence set out the road map thusly: “If the complaint does not allege that the offending conduct was pervasive and directed at the plaintiff, . . . the court should grant a demurrer.” It concluded: “[W]e must not tolerate laws that ‘lead to timidity and inertia and thereby discourage the boldness of expression indispensable for a progressive society.’ ” Id. at 300-301. Someone pass me the binoculars-I think I see a new First Amendment defense on the horizon. Diana Scott is co-chair of Greenberg Traurig’s national labor and employment practice, in the firm’s Los Angeles office. Besides representing clients in litigation matters, she prepares harassment and discrimination policies and workplace policies-and-procedures manuals. She also provides preventative counseling and in-house seminars.

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