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Abstract: In Aguilar v. Avis Rent A Car System, Inc., a badly fractured California Supreme Court upheld a remedial injunction against harassing speech in the workplace on the condition that the trial court modify the injunction to state its prohibitions more narrowly and specifically. The court failed to dispel the notion that the California Fair Employment and Housing Act ("FEHA") imposes liability for harassing speech based largely on the content of the speech. This result is not compelled by the FEHA and is bound to maintain a high level of tension between interests of equality and freedom of speech in California jurisprudence. The United States Supreme Court, in contrast, has laid the groundwork for a largely content-neutral theory of liability for harassing speech under Title VII of the Civil Rights Act of 1964, thus greatly reducing the potential conflict between Title VII and the First Amendment without sacrificing interests in equality.
This article develops that theme in several parts. Parts I and II summarize the multiple opinions of the California Court of Appeal and the California Supreme Court in Aguilar. Part III summarizes the author's theory of content-neutral regulation of discriminatorily-directed harassing speech under Title VII, and explains how the theory can apply to the FEHA. Part IV examines Professor Cass Sunstein's theory of judicial minimalism, and uses that theory as a framework within which to critique the Aguilar decision and to apply a content-neutral approach to Aguilar and similar cases in the future.
Keywords: First Amendment, speech, civil rights
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