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California's Supreme Court upheld an injunction against Avis Car Rental, barring its employees from using certain words that were considered harassing to Latino employees. The Supreme Court denied taking the appeal, but Justice Clarence Thomas dissented, saying that the injunction "very likely suppresses fully protected speech." (Image via Atomic Taco on Flickr, CC BY-SA 2.0)

In Avis Rent-a-Car System v. Aguilar, 529 U.S. 1138 (2000), the Supreme Court declined to review a ruling by the California Supreme Court allowing an injunction prohibiting an employee of Avis Rent-a-Car from uttering derogatory remarks about Latino co-employees.


Drivers sue Avis for harassing comments by coworker


The case began when Oscar Aguilar and 16 other Latino drivers sued Avis for employment discrimination based on the harassing comments of fellow employee John Lawrence.


The plaintiffs asserted that Avis knew or should have known that Lawrence was uttering such remarks and did nothing to stop him. After a jury ruled in favor of the employees, a trial court crafted an injunction that sought to prohibit such conduct in the future.


State courts upheld list of barred words from workplace


The California Court of Appeals ordered the injunction modified to limit only workplace speech. The injunction listed certain words that Lawrence could not speak in the workplace.


In 1999 the California Supreme Court approved the injunction in Aguilar v. Avis Rent-a-Car System (Cal. 1999). The court ruled that “a remedial injunction prohibiting the continued use of racial epithets in the workplace does not violate the right to freedom of speech if there has been a judicial determination that the use of such epithets will contribute to the continuation of a hostile or abusive work environment.”


Avis appealed to the U.S. Supreme Court, which denied the petition on May 22, 2000.


Dissenting justice said case involved First Amendment-protected speech


Justice Clarence Thomas dissented from the denial of certiorari. He reasoned that the injunction, which he termed a prior restraint, “very likely suppresses fully protected speech.”


Thomas explained that “even assuming that some pure speech in the workplace may be proscribed consistent with the First Amendment when it violates a workplace harassment law, special First Amendment problems are presented when, as here, the proscription takes the form of a prior restraint.”


David L. Hudson, Jr. is a law professor at Belmont who publishes widely on First Amendment topics.  He is the author of a 12-lecture audio course on the First Amendment entitled Freedom of Speech: Understanding the First Amendment (Now You Know Media, 2018).  He also is the author of many First Amendment books, including The First Amendment: Freedom of Speech (Thomson Reuters, 2012) and Freedom of Speech: Documents Decoded (ABC-CLIO, 2017). This article was originally published in 2009.​


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