Free speech: San Diego firefighters win partial ruling over forced participation in gay parade

A California appeals court ruled that San Diego firefighter did not lose state free speech rights but suffered a hostile and abusive work environment in enduring harassment during a gay rights parade they were forced to participate in. -db

Metropolitan News-Enterprise
October 15, 2010
By Steven M. Ellis

The Fourth District Court of Appeal ruled yesterday that four San Diego firefighters were sexually harassed while participating against their will in the city’s 2007 Pride Parade, but declined to hold that a supervisor’s order to join the parade violated their constitutional rights.

Div. One said in an unpublished opinion that sufficient evidence supported a jury’s finding that the firefighters were subjected to severe and pervasive harassment during the parade, altering the conditions of their employment and creating a hostile or abusive work environment.

But the panel concluded that a subsequent change in city policy, making firefighters’ participation in the parade voluntary, supported an order denying the men’s request for an injunction under the California Constitution’s guarantee of free speech.

Organized by nonprofit group San Diego LGBT Pride, the annual San Diego Pride Parade celebrates the local gay, lesbian, bisexual and transgendered communities. In 2007, it attracted approximately 150,000 spectators and 9,000 participants.

Four members of the city’s Fire-Rescue Department—John Ghiotto, Chad Allison, Jason Hewitt and Alexander Kane—were ordered to participate over their objections after a volunteer crew was forced to cancel due to a member’s family emergency. For nearly four hours as they waited for the parade to begin and then traveled down its route in a fire engine, the men claimed, they were the objects of unwanted sexual conduct.

The firefighters testified that spectators, in response to firefighters’ waves, started licking their lips and engaging in simulated sex acts, including groping themselves and others. They also said that parade-goers and announcers made numerous suggestive comments that made them uncomfortable—many involving the word “hose”—and that some spectators exposed their genitals.

The four men acknowledged that the majority of spectators did not engage in improper behavior, and maintained that they were not opposed to gay individuals or to serving the gay community.

Ghiotto, however, explained that he and the others “didn’t want to be put on a pedestal in…public view and be ridiculed” as a center of sexual attention.

The firefighters complained to superiors after the parade, and later filed a lawsuit alleging retaliation and sexual harassment, and seeking an injunction against future forced participation on free speech grounds. They did so after the city instituted a policy that firefighters would only be ordered to participate if enough volunteers could not be found.

The city subsequently changed the policy to eliminate compulsory participation entirely.

A jury rejected the four men’s retaliation claim and deadlocked on the harassment claim, and the trial court rejected their claim that the city violated their right to free speech under the California Constitution A second jury found for the firefighters and individually awarded damages ranging from $5,000 to $14,200.

The judge later awarded more than $500,000 in attorney fees.

The firefighters appealed the denial of an injunction, but the Court of Appeal affirmed in an opinion by Justice Joan Irion. Declining to address the free speech argument, she said that substantial evidence supported a finding that there was no basis to conclude that any firefighters would be forced to participate in the parade against their will in the future.

The justice similarly rebuffed the city’s contention that the trial court should have thrown out the verdict on the sexual harassment claim. Concluding that the jury was entitled to credit the plaintiffs’ testimony, she rejected the city’s characterization of the atmosphere that the firefighters experience at the parade as “simple teasing, offhand comments, and extremely isolated incidents of partial nudity or lewd behavior.”

Justices Richard D. Huffman and Judith L. Haller joined Irion in her opinion.

The case is Ghiotto v. City of San Diego, D055029.

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