Professor’s offensive messages did not constitute workplace harassment

A community college in Arizona was not required to discipline or dismiss a professor whose e-mails and website were offensive to other employees. The Ninth Circuit Court of Appeals, the federal appellate court with jurisdiction over Oregon, held that the professor’s e-mails were not discriminatory harassment because they were purely expressive.

A math professor sent three racially-charged emails celebrating Columbus Day and deriding Dia de la Raza, a counter celebration by some Hispanic communities, over a distribution list that reached every employee of the community college where he worked. He also maintained a website on the college’s web server that declared that immigration reform was necessary to preserve a "white majority." His site also urged its visitors to report illegal aliens. In response to protests and condemnation by prominent members of the community, the college president circulated an e-mail recognizing the offensive nature of the professor’s messages. However, a press release from the chancellor explained that disciplinary action would not be taken against the professor because it "could seriously undermine our ability to promote true academic freedom." A group of employees complained to the district that the professor’s statements had created a hostile work environment. When the district did not take disciplinary action, the employees filed a lawsuit because the college "failed to take immediate or appropriate steps to prevent...harassing e-mails."

The court found the offensive quality of the messages was based solely on their meaning. The court reasoned that speech that is offensive in its meaning only is distinct from speech made in a supervisory context or speech that is endorsed by the administration. The professor’s remarks were not made in a supervisory context. And the college did not endorse his views by providing a content-neutral forum to facilitate campus discussion. As a result, the district did not violate the employees’ right to freedom from workplace harassment.

Rodriguez v. Maricopa County Cmty. College Dist., 2009 U.S. App. LEXIS 29101 (9th Cir. Ariz. Oct. 19, 2009)

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