Racist Email May Not Constitute Workplace Harassment – Provided It’s Sent to a General Audience

In a case where important legal rights collided, the Ninth Circuit has ruled that a professor who posted racist email on a community college’s web server did not engage in workplace harassment in violation of Title VII of the Civil Rights Act of 1964.

The case is Rodriguez v. Maricopa Community College District.  A member of the faculty (a math professor named Walter Kehowski)  sent email messages denouncing the school’s “Dia La Raza” and followed up with more emails purporting to trumpet the superiority of “European ideas.”

Other faculty members condemned these messages.  Included among them were the college president and the chancellor of the entire district.

The matter did not end there.  A number of employees complained that the email messages had created a “hostile work environment” in violation of Title VII.  When no disciplinary action was taken against the professor who posted the offending emails, a group of the employees sued, seeking damages for the district’s failure to correct the hostile environment they had complained about.

Not surprisingly, the professor (and the college) maintained that the professor had a First Amendment right to speak, even if his viewpoint was offensive to some people.  Moreover, the argument was made that these generalized emails, stating a political point of view, did not constitute a hostile work environment.  The Ninth Circuit both agreed with that approach and rejected the plaintiff's claims.  The result might have been different if the emails had been target to a specific person or group of identifiable persons and threatened or intimidated them specifically because of their race.  Several passages from the court’s thoughtful opinion are worth reading:

“Indeed, precisely because Kehowski’s ideas fall outside the mainstream, his words sparked intense debate: Colleagues emailed responses, and Kehowski replied; some voiced opinions in the editorial pages of the local paper; the administration issued a press release; and, in the best tradition of higher learning, students protested. The Constitution embraces such a heated exchange of views, even (perhaps especially) when they concern sensitive topics like race, where the risk of conflict and insult is high. Without the right to stand against society’s most strongly-held convictions, the marketplace of ideas would decline into a boutique of the banal, as the urge to censor is greatest where debate is most disquieting and orthodoxy most entrenched. The right to provoke, offend and shock lies at the core of the First Amendment. This is particularly so on college campuses. Intellectual advancement has traditionally progressed through discord and dissent, as a diversity of views ensures that ideas survive because they are correct, not because they are popular. Colleges and universities—sheltered from the currents of popular opinion by tradition, geography, tenure and monetary endowments—have historically fostered that exchange. But that role in our society will not survive if certain points of view may be declared beyond the pale. ‘Teachers and students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding; otherwise our civilization will stagnate and die.’ (Citations omitted.)  We have therefore said that ‘[t]he desire to maintain a sedate academic environment . . . [does not] justify limitations on a teacher’s freedom to express himself on political issues in vigorous, argumentative, unmeasured, and even distinctly unpleasant terms.’ (Citations omitted.)”

“The First Amendment also demands substantial deference to the college’s decision not to take action against Kehowski. The academy’s freedom to make such decisions without excessive judicial oversight is an ‘essential’ part of academic liberty and a “special concern of the First Amendment.”

“These First Amendment principles must guide our interpretation of the right to be free of purposeful workplace harassment under the Equal Protection Clause.”

“We therefore doubt that a college professor’s expression on a matter of public concern, directed to the college community, could ever constitute unlawful harassment and justify the judicial intervention that plaintiffs seek. Harassment law generally targets conduct, and it sweeps in speech as harassment only when consistent with the First Amendment. For instance,
racial insults or sexual advances directed at particular individualsin the workplace may be prohibited on the basis of their non-expressive qualities, as they do not ‘seek to disseminate a message to the general public, but to intrude upon the targeted [listener], and to do so in an especially offensive way, [citations omitted] But Kehowski’s website and emails were pure speech; they were the effective equivalent of standing on a soap box in a campus quadrangle and speaking to all within earshot. Their offensive quality was based entirely on their meaning, and not on any conduct or implicit threat of conduct that they contained. In the context of a supervisory relationship, advocacy of discriminatory ideas can connote an implicit threat of discriminatory treatment and could therefore amount to intentional discrimination.2 But plaintiffs have not alleged that Kehowski’s speech was made in such a context, or that he has any control over their employment. Nor did the administration in any way endorse Kehowski’s views or adopt them as the district’s official position: Although Kehowski disseminated his views using the district’s web servers and email list, providing such resources on a content-neutral basis to facilitate campus discussion does not suggest official endorsement of the resulting speech.”

The court concluded with this observation:

“It’s easy enough to assert that Kehowski’s ideas contribute nothing to academic debate, and that the expression of his point of view does more harm than good. But the First Amendment doesn’t allow us to weigh the pros and cons of certain types of speech. Those offended by Kehowski’s ideas should engage him in debate or hit the ‘delete’ button when they receive his emails. They may not invoke the power of the government to shut him up.”

Our firm regularly advises both employers and employees on important legal questions that impact the workplace. We also counsel educators and educational institutions on similar issues.

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