In Rodriguez. v. Maricopa Co. Comm. College, et al., plaintiffs, a class of the college's Hispanic employees, sued after one of the college's professors sent out a series of racially charged e-mails. Included in those e-mails were statements such as, "it's time to acknowledge and celebrate the superiority of western civilization," "America did not become the mightiest nation on earth without distinctive values and discrimination" and "[o]ur survival depends upon discrimination." The professor also had a website (maintained on the college's web server), which stated in part, "[t]he only immigration reform imperative is preservation of white majority."
While the college president and chancellor both condemned the professor's ideas and made clear that the college's vision was not aligned with that of the professor, the college did not discipline the professor for the statements.
Plaintiffs sued the college, its governing board, the president and the chancellor. The Title VII claims were dismissed against the president and chancellor because Title VII does not apply individual liability to agents. However, the District Court denied the individuals' immunity arguments. On interlocutory appeal, the Ninth Circuit found, as a matter of law, that the plaintiffs could not show the professor's conduct constituted harassment. The Court expressed its opinion that they doubted "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 the plaintiffs seek."
The Court did recognize that not all speech is protected and that where racial insults or sexual advances are directed at a particular individual, conduct may be prohibited. In such cases the comments or conduct would 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." However, because the speech in this case was not individually targeted, but was, rather, a general statement of opinion, it is protected even where the speech uses the community college's e-mail system and website.
The Court recognized that allowing the professor or others to use content neutral technology "to facilitate campus discussion does not suggest official endorsement of the resulting speech."
While it is clear that public employers may take additional actions in response to circumstances such as these, they are not necessarily required to do so. Moreover, doing so may run the risk of intruding upon the alleged harasser's First Amendment rights. It is a delicate and, perhaps, unpopular balance that public employers must undertake.