LOOSE CANNON: Report In Opposition To The Confirmation Of Janice Rogers Brown To The United States Court Of Appeals For The DC Circuit

Racial Discrimination

Aguilar v. Avis Rent A Car Systems, Inc., 980 P.2d 846 (Cal. 1999), cert. denied, 529 U.S. 1138 (2000).

A number of Latino employees of Avis Rent A Car brought a race discrimination lawsuit based upon the use of racial epithets in the workplace by an employee named John Lawrence. The trial court found that the employer allowed Latino employees to be repeatedly subjected to racial slurs, thus creating a hostile work environment in violation of the California Fair Housing and Employment Act (“FHEA”). To remedy the situation, the trial court enjoined Lawrence from using the racial slurs to describe Latino Avis employees and enjoined Avis from allowing Lawrence to use such slurs.

On appeal, Lawrence and Avis argued that prohibiting them from using or allowing such speech in the future was a violation of their First Amendment rights. The majority of the California Supreme Court upheld the injunction. Brown, on the other hand, dissented in a very disturbing opinion. Brown argued that racially discriminatory speech in the workplace, even when it rises to the level of illegal race discrimination, is protected by the First Amendment and cannot be limited. In coming to this conclusion, Brown downplayed the fact that several U.S. Supreme Court opinions have found exactly the opposite – the Court has made clear that speech can and does constitute illegal race discrimination in some cases. Brown also argued that even if such speech is racial discrimination, it cannot be limited by an injunction aimed at preventing a recurrence of the discrimination.

Brown’s opinion, if it were to become the law of the land, could make it impossible for judges or legislators to take effective steps to halt the recurrence of sexual harassment and racial discrimination involving speech in the workplace. In fact, Brown went so far as to suggest that the landmark civil rights law, Title VII of the Civil Rights Act of 1964 (which prohibits discrimination in employment), could be unconstitutional under the First Amendment. 980 P.2d at 892. In her responses to the questionnaire of the Senate Judiciary Committee, Brown listed her dissent in Aguilar as one of her ten most significant opinions. The Supreme Court denied review of the case, although Justice Clarence Thomas dissented from the denial of certiorari, 529 U.S. 1138 (2000).

As discussed below with respect to free speech and association, Brown’s approach in Aquilar conflicted sharply with her rulings in several cases that concerned individual First Amendment rights, where she has not been protective of First Amendment freedoms.

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Konig v. Fair Employment and Housing Commission, 50 P.3d 718 (Cal. 2002).

Sheryl Annette McCoy, an African American and a police officer, sought to inquire about a unit for rent by Nancy Ann Konig, who was white. As officer McCoy tried to read the rental notice on Konig’s door, Konig said to her “Shame on you. What are you doing on my porch? Get off my porch. You’re trying to break into my house.” McCoy then explained that she wanted to learn about the rental unit and McCoy said: “You know you don’t want to rent this place. You’re here to break in. Shame on you. I’m not going to rent to you. I’m not going to rent to a person like you.” McCoy was distraught and humiliated by the treatment she received by Konig. She wanted to determine whether the treatment was racially motivated so she asked a colleague, also an African-American police officer, named Terrence Smith to inquire about the apartment. When Smith went to the residence Konig ran into the residence and slammed the door. She did not respond to Smith’s knocks. The rental notice on the door instructed interested parties to leave their name, address and telephone number on a piece of paper and leave the paper in the mail slot. Smith followed this procedure but was never contacted by Konig.

Approximately a year later, the unit was again advertised for rent. The Fair Housing Council of Long Beach sent two female “testers” to Konig’s residence to inquire about the unit. Konig discouraged the African-American tester from renting the unit saying that it was too large. Konig also asked whether the African-American tester had given notice at her current residence. The tester answered that she had not but that her landlord had waived the notice. Konig still maintained that the African-American tester was not free to rent a new unit because she had not given proper notice and refused to give the tester an application when one was requested. On the other hand, Konig treated the white tester with “deference,” did not inquire as to whether or not she had given notice and asked her to call if she was interested in renting the unit. 50 P.3d 718 at 719.

McCoy filed a complaint with the Department of Fair Employment and Housing. McCoy asserted that she had suffered serious emotional distress because of the discrimination and others testified to that effect. The event caused her to relive an experience of racial discrimination she had suffered as young child with her family. After a hearing, the Commission found that Konig had discriminated against McCoy because of her race and ordered her to pay a $10,000 fine and $10,000 in damages. Konig filed a petition in a California trial court to try to get the decision reversed. The court reversed the Commission on the damages award, stating that the Commission was constitutionally prohibited from awarding damages for emotional distress under previous California legal decisions. The Commission appealed to the appeals court, which affirmed the trial court’s decision. The Commission then appealed the case to the California Supreme Court. A majority of the court reversed and held that, despite previous decisions suggesting otherwise, the Commission could award damages for emotional distress due to legislative changes that had been made to the relevant laws.

Brown alone dissented from the decision and wrote a separate opinion arguing that the Commission should not be allowed to award damages for emotional distress. Furthermore, she argued that only judicial bodies should be allowed to make such awards. If Brown’s opinion had been adopted by the whole court it would have seriously limited the avenues available for victims of discrimination to obtain full redress for their injuries.

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Peatros v. Bank of America NT&SA, 990 P.2d 539 (Cal. 2000).

Ms. Peatros sued her employer, the Bank of America, for race and age discrimination under the California Fair Housing and Employment Act. The trial and appeals courts held that Ms. Peatros could not sustain a lawsuit under the FHEA because it was preempted by the National Bank Act of 1864. The Supreme Court reversed, holding that the more than 135-yearold statute was not a bar to employment discrimination actions against banking establishments in most instances. The majority explained that more recent federal civil rights laws, such as the Age Discrimination in Employment Act of 1967 and the Civil Rights Act of 1964, had superceded the 135-year-old National Bank Act. They went on to decide that, to the extent that the FHEA guaranteed the same rights and provides the same remedies as the two federal antidiscrimination laws, it was not preempted by the National Bank Act of 1864. The court made no judgment on the merits of Ms. Peatros’ lawsuit, it simply found that she had a right to her day in court. Nevertheless, Justice Brown dissented, joined by two other justices. She would have found that a law originally enacted during the Civil War should preempt state antidiscrimination laws on issues such as race and age, despite the obvious changes in law since that time. As the majority explained, although Brown claimed that prior precedent supported her position, such support actually ranged “between minimal and non-existent.” 990 P.2d at 554.

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