Rodriguez v. Maricopa County Cmty. Coll., 605 F.3d 703 (9th Cir. 2010)

Professor Walter Kehowski sent three racially-charged emails over a distribution list maintained by the college district where he teaches math. Every district employee with an email address received Kehowski’s messages, including plaintiffs in this case – a certified class of the district’s Hispanic employees. Plaintiffs sued the district, its governing board and two district administrators, claiming their failure to properly respond to the emails created a hostile environment in violation of Title VII and the Equal Protection Clause.

The Ninth Circuit determined as a matter of law that the employees did not establish conduct constituting illegal harassment because “the right to provoke, offend and shock lies at the core of the First Amendment…. Those offended by Kehowski’s ideas should engage him in debate or hit the ‘delete’ button when they receive his emails. They may not invoke the power of the government to shut him up.” See also Holman v. Altana Pharma US, Inc., 2010 WL 2599337 (Cal. Ct. App. 2010) (prevailing-party employer in FEHA hostile environment case may recover expert witness fees from plaintiff pursuant to Cal. Code Civ. Proc. § 998, but the amount of the award is subject to “scaling” based upon the relative resources of the parties).