Opinion
PUGLIA, P. J.Real party in interest Johnny C. Wallace (Wallace) was dismissed from his position as a correctional sergeant with plaintiff California Department of Corrections (CDC or Department) following an incident at Deuel Vocational Institution (DVI) involving himself and another correctional officer, G. Picone (Picone). In a private conversation between Wallace and Picone, Wallace, a White male, complained to Picone, a Hispanic female, about preferential treatment bestowed on Hispanic employees by CDC, used profane language, and shook Picone by the collar to emphasize his point.
Wallace appealed his dismissal to defendant State Personnel Board (Board). The Board concluded Wallace’s termination was based in part on protected First Amendment speech and reduced the discipline to a 30-day suspension.
CDC petitioned the superior court for a writ of administrative mandamus (Code Civ. Proc., § 1094.5) to overturn the Board’s decision reducing the dismissal to a suspension. The superior court concluded the Board erred in finding any part of Wallace’s conduct protected by the First Amendment. The court granted the writ and directed the Board to set aside its decision and to reconsider the appropriate punishment. Wallace appeals. We shall reverse.
*136I
The facts, essentially undisputed, are stated in the decision of the Board. “[Picone] is a female Hispanic Correctional Officer who has worked at [DVI] for seven years. In 1990, she took the Sergeant’s examination, placed 800th on the list, and was not reachable on a permanent basis. She was nonetheless appointed as a limited-term Sergeant in January 1991 as part of the Department’s Affirmative Action efforts. . . . After completing a year as a limited-term Sergeant, [Picone] received a second one-year appointment. This created some resentment among other employees who felt that others on the Sergeant’s list should be given a chance at the position. . . .
“Additional resentment was created when [Picone] was appointed to the Investigative Gang Sergeant position. This is a prestigious second watch position which is highly coveted by other Sergeants. . . .
“[Wallace] was one of the Sergeants who was resentful about [Picone’s] selection as Gang Sergeant. He had been attempting to get a second watch position for some time so that he could spend more time with his 13-year-old son. [Wallace] did not have high enough seniority to be able to obtain a second watch position by seniority, yet many junior Sergeants who were Hispanic had second watch positions. When [Wallace] inquired about this, he was told that the Department wanted to have minority females in the second watch positions to increase their ‘visibility’ and to demonstrate the institution’s commitment to Affirmative Action. . . .
“During 1992, the Department gave another Sergeant’s examination. [Pi-cone] did not take this examination, but others at the institution did and scored higher than [Picone] had scored on the first examination. When the two lists were merged, [Picone] was again not reachable for a permanent appointment. In January 1993, her second limited-term appointment expired, and she had to revert back to her Correctional Officer position. [Picone] did not blame the Department for this action but blamed herself for not taking the second Sergeant’s examination. However, some employees expressed the view that [Picone] had been ‘shafted’ and felt that she should have been promoted on a permanent basis. Other employees, including [Wallace], did not agree and felt that [Picone] had been given undeserved preferential treatment in the first place because of her race [sic] and sex. This was a common topic of conversation among officers during this period ....
“During one of these passing conversations, some officers expressed their opinion to [Wallace] that [Picone] had been ‘shafted.’ [Wallace] disagreed, stating his view that [Picone] was a ‘lop’ (prison slang for a poor performer) *137and did not deserve to wear the stripes in the first place. [Wallace’s] comments got back to [Picone] who was understandably hurt by them as she thought she had a good relationship with [Wallace]. . . .
“On February 12, 1993, [Picone], who was going off duty, approached [Wallace] during shift change and told him that she wanted to talk to him privately about something. [Wallace], who was just starting his shift, followed [Picone] out to the north corridor where no other staff or inmates were present. . . . [Picone] told [Wallace] that she had heard that he was talking bad about her and that she wanted it to stop.
“[Wallace] was very frustrated about his own situation of not being able to get a second watch position to spend more time with his son. He was also tired of hearing officers saying that [Picone] had been ‘shafted’ .... He lost his temper, slapped the wall with his hand, and said to [Picone] in a low voice, ‘I am tired of this Hispanic shit; us white guys are tired of being looked over.’ He stated that he was ‘sick and tired about hearing about poor fucking [Picone] getting shafted.’ [Wallace] was irate, clenching his teeth, and talking in a very low, irritated voice. . . .
“[Picone] was stunned by [Wallace’s] reaction. She told him that he needed to stop talking like that because it was going to get him in trouble. She told [Wallace] that she could understand how he felt because she was married to a white officer who worked for the sheriff’s department. She agreed that it was not always fair but that minorities had gone through a lot. She said she could understand why he felt that way, but he was handling it all wrong. [Picone] started crying. [Wallace] had tears in his eyes arid seemed to be out of control. He grabbed [Picone’s] shirt lapel and started shaking her saying, ‘Do you understand what I’m saying? Do you understand what I’m feeling? We’re sick and tired of it.’ After a few seconds, [Wallace] let go of her lapels. . . .
“[Picone] was still crying. . . . She asked [Wallace] to escort her out of the institution so that the inmates and other staff would not see her crying. [Wallace] and [Picone] walked out of the institution with [Wallace] shielding [Picone] from the inmates and other staff. . . . [Wallace] was calmer now. He told [Picone] that it was her fault that she had not taken the second sergeant’s examination and scored higher and that he was tired of everyone saying ‘poor [Picone].’ [Wallace] told [Picone] that she had made her own choices and could have transferred out. [Picone] told [Wallace], ‘John, I’m not asking for sympathy. I’m trying to lie low and do my job. I can’t help how others feel.’ . . .
“Later that evening, [Wallace] had the Control Sergeant telephone [Pi-cone] at home to see if she would be willing to talk to him. . . . [Picone] *138agreed to talk to [Wallace], and the call was transferred. [Wallace] said, ‘What we talked about, you were right; but I am still entitled to my own opinion.’ [Picone] laughed and said, ‘Is that an apology?’ The conversation was then terminated. . . .
“Following the incident with [Wallace], [Picone] asked for a job change. When the job change was denied, she decided that she wanted to transfer from the institution. She subsequently received a transfer to the Northern California Women’s Facility .... She testified that she would have reservations about working for [Wallace] as a sergeant because of his statements to her. She felt that those statements expressed hatred towards her because of her race [sic], [Picone] never filed a discrimination complaint about [Wallace’s] conduct with the Department but did file a complaint with the Department of Fair Employment and Housing.”
Wallace was charged with inefficiency, inexcusable neglect, intemperance, discourteous treatment of another employee, willful disobedience, unlawful discrimination, and other failure of good behavior bringing discredit to the institution. The Board concluded “the content of [Wallace’s] remarks to [Picone] was constitutionally protected, but the manner in which he delivered these remarks was not.” The Board sustained only the charges of discourteous treatment of another employee (Gov. Code, § 19572, subd. (m)) and failure of good behavior bringing discredit to the Department (Gov. Code, § 19572, subd. (t)).
The trial court disagreed with the Board’s First Amendment analysis. The court determined the Board failed to accord appropriate weight to several “uncontested” facts, to wit: (1) Wallace was superior to Picone and was “in a position to hamper her career”; (2) Picone had gone to Wallace to discuss his reference to her as a “lop”; (3) the comments occurred at the workplace; and (4) Picone was “severely impacted, emotionally.” According to the court, the Board’s analysis is “shocking” and “has the potential of signaling to all disgruntled state workers an ‘open season’ on minority subordinates, to unleash venomous epithets under the guise of protected speech.” The court further concluded Wallace’s conduct “created a hostile or abusive work environment and constitutes unlawful discrimination.”
n
The discipline imposed on a public employee may not infringe constitutionally protected free speech. (Rankin v. McPherson (1987) 483 U.S. 378, 383 [107 S.Ct. 2891, 2896, 97 L.Ed.2d 315, 324].) This does not mean public employees have an unlimited right to express themselves in the *139workplace as they see fit. The determination whether a public employee has been properly disciplined for speech related activities requires “a balance between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” (Pickering v. Board of Education (1968) 391 U.S. 563, 568 [88 S.Ct. 1731, 1734-1735, 20 L.Ed.2d 811, 817].) The proper balance to be struck is a question of law for the court. (Connick v. Myers (1983) 461 U.S. 138, 148, fn. 7 [103 S.Ct. 1684, 1690, 75 L.Ed.2d 708, 720].)
At the threshold, the inquiry is whether the speech which invites the discipline may fairly be characterized as involving a matter of public concern. (Connick v. Myers, supra, 461 U.S. at p. 146 [103 S.Ct. at pp. 1689-1690, 75 L.Ed.2d at p. 719].) This must be determined “by the content, form, and context of a given statement, as revealed by the whole record.” (Id. at pp. 147-148 [103 S.Ct. at p. 1690, 75 L.Ed.2d at p. 720].)
CDC contends Wallace’s statements to Picone involve only a personal grievance, not a matter of public concern. In Connick v. Myers, supra, 461 U.S. 138 [103 S.Ct. 1684, 75 L.Ed.2d 708], the high court concluded a deputy district attorney’s distribution of a questionnaire to fellow employees focusing on certain concerns in the operation of the district attorney’s office was primarily an offshoot of a personal grievance between the deputy and the office and, to that extent, not a matter of public concern. The deputy, Myers, had been informed she would be transferred within the office and her objections to the move were ignored. The court explained: “We view the questions [in the questionnaire] pertaining to the confidence and trust that Myers’ co-workers possess in various supervisors, the level of office morale, and the need for a grievance committee as mere extensions of Myers’ dispute over her transfer to another section .... [W]e do not believe these questions are of public import in evaluating the performance of the District Attorney as an elected official. Myers did not seek to inform the public that the District Attorney’s Office was not discharging its governmental responsibilities in the investigation and prosecution of criminal cases. Nor did Myers seek to bring to light actual or potential wrongdoing or breach of public trust on the part of Connick and others. Indeed, the questionnaire, if released to the public, would convey no information at all other than the fact that a single employee is upset with the status quo.” (461 U.S. at p. 148 [103 S.Ct. at pp. 1690-1691, 75 L.Ed.2d at pp. 720-721].)
Although the Connick court found much in the questionnaire that was not of public concern, a question regarding whether pressure was being exerted on deputies to work on political campaigns was treated differently: “[T]he *140issue of whether assistant district attorneys are pressured to work in political campaigns is a matter of interest to the community upon which it is essential that public employees be able to speak out freely without fear of retaliatory dismissal.” (Id. at p. 149 [103 S.Ct. at p. 1691, 75 L.Ed.2d at pp. 721-722].)
The evidence discloses that conversations regarding the relative merits of affirmative action “go on all the time” among CDC employees. The fairness or inequity of affirmative action is not an issue unique to CDC. Wallace’s concerns mirror those of many others in public employment. The discussion between Wallace and Picone could have taken place in virtually any public agency.
Few issues today stimulate as much debate or are as divisive as affirmative action, particularly the kind that calls for women and certain racial and ethnic minorities to be given preference in employment over White (non-Hispanic) males. (See Hudgins, Rethinking Affirmative Action in the 1990’s: Tailoring the Cure to Remedy the Disease (1995) 47 Baylor L.Rev. 815, 816; Sullivan, Sins of Discrimination: Last Term’s Affirmative Action Cases (1986) 100 Harv. L.Rev. 78; Pilon, Discrimination, Affirmative Action, and Freedom: Sorting Out the Issues (1996) 45 Am. U. L.Rev. 775.) Disputes over affirmative action generate a significant amount of litigation. Some of those cases have achieved national notoriety and have further fueled the public debate. (See, e.g., Adarand Constructors, Inc. v. Pena (1995) 515 U.S. 200 [115 S.Ct. 2097, 132 L.Ed.2d 158] [equal protection mandates that federal government’s use of race and ethnic based classifications to favor minority contractors bidding on federal projects be analyzed under strict scrutiny standard]; City of Richmond v. J. A. Croson Co. (1989) 488 U.S. 469 [109 S.Ct. 706, 102 L.Ed.2d 854] [city ordinance setting aside 30 percent of city construction contracts for racial and ethnic minority contractors violates equal protection where city failed to show that favored racial and ethnic classes had suffered past discrimination in the construction industry]; Johnson v. Transportation Agency (1987) 480 U.S. 616 [107 S.Ct. 1442, 94 L.Ed.2d 615] [promotion of qualified female applicant over better qualified male applicant does not violate the latter’s right under title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e et seq.) to nondiscriminatory treatment where, even though the sex of the female applicant was the determining factor in the promotional decision, the promotion was made in furtherance of an affirmative action plan designed to eliminate an imbalance between the sexes in the employer’s workforce caused by societal discrimination]; University of California Regents v. Bakke (1978) 438 U.S. 265 [98 S.Ct. 2733, 57 L.Ed.2d 750] [a public university may consider the race or ethnicity of an applicant for admission as one factor to be weighed against all others in the admissions process].)
*141The competing views are well known. Proponents argue preferential treatment is justified because of historic societal discrimination against women and certain minorities. Opponents contend preferential treatment unfairly discriminates against nonpreferred individuals, i.e., White (non-Hispanic) males, who are penalized for past societal discrimination for which they are not responsible. (438 U.S. 265 [98 S.Ct. 2733, 57 L.Ed.2d 750]; Carlson, Adarand Constructors, Inc. v. Pena: The Lochnerization of Affirmative Action (1996) 27 St. Mary’s L.J. 423, 424-425, fn. 2; Kennedy, Persuasion and Distrust: A Comment on the Affirmative Action Debate (1986) 99 Harv. L.Rev. 1327, 1327-1328.) After decades of debate and litigation, there is still no public consensus on this very polarizing issue. Preferential treatment based on inherent, immutable personal characteristics remains a particularly volatile political issue of transcendent public concern. (Strauss, Affirmative Action and the Public Interest (1995) 1995 Sup. Ct. Rev. 1, 42.)
Both Wallace and Picone had more than a casual interest in CDC’s affirmative action policies, Wallace because of his race and sex, and Picone because of her ethnicity and sex. Because of these personal characteristics, Wallace was disadvantaged and Picone was benefited by CDC’s affirmative action policy.
As a department of state government, CDC is required to engage in affirmative action. Government Code section 19790 provides in relevant part: “Each agency and department is responsible for establishing an effective affirmative action program. The State Personnel Board shall be responsible for providing statewide advocacy, coordination, enforcement, and monitoring of these programs. Each agency and department shall establish goals and timetables designed to overcome any identified underutilization of minorities and women in their respective organizations. . . .”
Government Code section 19797 provides: “Each state agency and department shall develop, update annually, and implement an affirmative action plan which shall at least identify the areas of underutilization of minorities and women within each department by job category and level, contain an equal employment opportunity analysis of all job categories and levels within the hiring jurisdiction, and include an explanation and specific actions for improving the representation of minorities and women.”
The Board has promulgated regulations governing the conduct of affirmative action in the classified service. (See Gov. Code, §§ 18701; 19792, subd. (b).) Section 547.30 of title 2, California Code of Regulations provides: “The objective of this article is to establish procedures to facilitate the board exercising its authority under the State Constitution and the State Civil *142Service Act to provide equal employment opportunity in the state civil service, to assure that hiring and promotion conforms to the Federal Civil Rights Act of 1964, and to eliminate and rectify present effects of past discriminatory employment practices through facilitating use of affirmative action programs and issuing remedial orders. HQ The following process shall be adhered to in instituting remedial actions: HQ (a) Identification of classes, occupations, departments and/or program areas in which there is substantial underutilization of minorities, women, or the disabled in the state civil service. HQ (b) Determination of whether or not past discriminatory employment practices have contributed to the substantial underutilization. HQ (c) Issuance of remedial orders to assist in correcting the substantial underutilization.”
Minorities are defined as “members of a race or ethnicity for whom hiring goals are set in the state’s affirmative action planning process, as listed in the State Personnel Board’s Annual Affirmative Action Report for the 1980-81 Fiscal Year.” (Tit. 2, Cal. Code Regs., § 547.31, subd. (d).)
Minority groups specifically targeted for affirmative action are identified as: Blacks, Hispanics, Asians, Filipinos, American Indians and the disabled. In addition, females are identified as an affirmative action target group. (Annual Affirmative Action Rep. of the State Personnel Bd., 1980-1981 Fiscal Year, p. 4.)
The only distinctive classifications by race and sex which are not targeted for affirmative action are White males who are neither Hispanic nor disabled. It is this minority upon which the state imposes the entire burden of rectifying past societal discrimination. Members of this minority, like Wallace, who are affirmatively and repeatedly shunted to the bottom of the lists for hiring and promotion are thought to have no reason to complain because others of their race and sex have benefited disproportionately from the pre-affirmative action regime under which employment opportunities previously were allocated. According to this theory, any unhappiness Wallace might feel from being repeatedly denied a more desirable shift, even while similar requests by less senior members of “targeted groups” were granted, should be more than assuaged by the knowledge that, over time, other White males have benefited disproportionately from preexisting societal practices, traditions and arrangements by which employment opportunities were allocated. Thus, so the theory goes, Wallace’s splenetic outburst at Picone concerning preferential treatment of minorities is the more egregious because he lacked any legitimate grounds for complaint.
It is, of course, counterintuitive to suppose that one’s individual life and career aspirations can be fulfilled or realized vicariously through the *143achievements of others simply because they are of the same race and sex. Whatever satisfaction that might give, it does not put food on the table, educate one’s family or, as in this case, enhance a father’s relationship with his child. Thus it is not at all surprising that Wallace resented the role assigned by the state to his race and sex. As expressly found by the Board, Wallace was clearly frustrated by CDC’s policy of preferential treatment of women and specified racial and ethnic minorities. For some time he had coveted a second watch position but did not have the necessary seniority. Yet many Hispanic sergeants who were junior to him had obtained second watch positions. Picone had less seniority than Wallace and had not scored high enough to earn a permanent promotion to sergeant but was given a temporary assignment on second watch. Wallace had heard others at DVI complain that Picone had been treated unfairly in being denied a promotion to sergeant on a permanent basis. Wallace did not think Picone had been mistreated. On the contrary, he believed Picone had been given preferential treatment under CDC’s affirmative action policies. When Picone initiated a discussion with Wallace to request that he stop making negative comments about her, Wallace used the opportunity to vent his frustration and anger over CDC’s policy of preferential treatment.
Nevertheless, the fact Wallace had been personally disadvantaged by the policy does not alter the fact preferential treatment in public employment on the basis of race, sex, ethnicity or national origin is not only a basis for personal grievance but, transcendentally, a matter of intense public concern. (Chico Police Officers’ Assn. v. City of Chico (1991) 232 Cal.App.3d 635, 648 [283 Cal.Rptr. 610]; Rode v. Dellarciprete (3d Cir. 1988) 845 F.2d 1195, 1202.)
It cannot be gainsaid the discussion between Wallace and Picone which gave rise to this personnel action involved a matter of public concern. Preferential treatment in public employment based on race, sex, ethnicity or national origin is a matter of concern not only to those directly affected, i.e., public employees who benefit or are disadvantaged by it, but also to the public generally in whose name and under whose auspices these controversial policies are carried out.1
CDC contends Wallace’s statements to Picone, even if involving a matter of public concern, are excepted from First Amendment protection as *144“fighting words.” Over half a century ago, the United States Supreme Court explained the concept of “fighting words” in a passage parts of which now seem quaintly Victorian: “[I]t is well understood that the right of free speech is not absolute at all times and under all circumstances. There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and insulting or ‘fighting’ words—those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality. ‘Resort to epithets or personal abuse is not in any proper sense communication of information or opinion safeguarded by the Constitution, and its punishment as a criminal act would raise no question under that instrument.’ [Citation.]” (Chaplinsky v. New Hampshire (1941) 315 U.S. 568, 571-572 [62 S.Ct. 766, 769, 86 L.Ed. 1031, 1035], fns. omitted.)
In In re John V. (1985) 167 Cal.App.3d 761 [213 Cal.Rptr. 503], the juvenile court sustained a petition (Welf. & Inst. Code, § 602) alleging that the 16-year-old minor had violated Penal Code section 415 by screaming at his neighbor, “fucking bitch,” as he drove past her house. Penal Code section 415 prohibits the use of “offensive words in a public place which are inherently likely to provoke an immediate violent reaction.” The minor had been screaming such epithets at his neighbor for several years and on one occasion his neighbor, provoked by his vilification, had attempted to hit him with a baseball bat. The Court of Appeal found the minor’s words unprotected by the First Amendment, explaining: “Unless we are prepared to reject the ‘fighting words’ exception to the First Amendment we must accept the premise that there are certain words in our society which when directly communicated to a person under certain circumstances will in fact provoke an immediate violent reaction. As infrequent as that situation may be we are satisfied it occurred in the case before us. We are hard pressed to think of a more volatile situation than the one here when [the minor] decided to provoke [his neighbor] once again by calling her a ‘fucking bitch.’ ” (167 Cal.App.3d at p. 769.)
Although the John V. court was “hard pressed” to think of a more volatile situation than presented there, CDC is not so vexed. According to CDC’s brief, “. . . the circumstances that existed in the instant case are much more volatile than those described in [John V.]. The pending matter involved a prolonged verbal attack in which the weapons deployed by [Wallace] were just those words proscribed by the Fourth District Court of Appeal [in John *145V.]. [Wallace’s] verbal assault was initially coupled with a violent blow to the wall behind [Picone]. [H The verbal attack was later combined with a physical attack. This particular conduct is not simply reprehensible, it is criminal.” (Italics added.)
Contrary to CDC’s frenetic, hyperbolic description of the encounter, there is no support in the record for the application of the fighting words exception. There was no “prolonged verbal assault,” as CDC contends. The entire incident lasted only a few minutes and Wallace’s statements, while addressed to Picone, were not critical of her personally or of her conduct. They were directed at CDC and its policy of preferential treatment of women and minorities to the detriment of Wallace and other White males. There was no “violent blow” to the wall; Wallace “slapped” the wall. Although Wallace did grab Picone’s shirt collar and shake her for a few seconds to emphasize his frustration, this cannot reasonably be interpreted as an attempt to harm her physically, as the word “attack” would suggest.2 Finally, viewed as a whole, the incident never remotely threatened to erupt in violence, a necessary criterion for application of the fighting words exception. (See Jefferson v. Superior Court (1975) 51 Cal.App.3d 721, 725 [124 Cal.Rptr. 507].)
We next consider the proper balance between Wallace’s interest in free expression and CDC’s interest in promoting harmony and efficiency in the workplace. Before doing so, however, we resolve a conceptual disagreement between the Board and the trial court over what may be considered in this analysis.
The Board concluded Wallace cannot be punished for the content of his statements to Picone but only for the way in which they were delivered, i.e., the conduct accompanying his statements including the use of profane language. In other words, while Wallace may be punished for the incident in *146general, he may not be penalized for the fact his statements were critical of CDC’s policy of preferential treatment of women and minorities or Picone’s views on the subject.
The trial court, on the other hand, concluded the content of Wallace’s statements cannot be separated from the manner in which they were delivered or the accompanying conduct. The court acknowledged that “in a proper setting” and “at the proper time” Wallace’s statements might be considered protected speech. However, in the court’s view, the Constitution affords no protection under the circumstances presented here.
Predictably, Wallace advocates the approach of the Board while CDC aligns itself with the trial court’s approach. CDC cites two decisions which it contends support the analysis of the trial court. In Waters v. Churchill (1994) 511 U.S. 661 [114 S.Ct. 1878, 128 L.Ed.2d 686], a public hospital fired Churchill, a nurse, because of a conversation she had with another nurse criticizing the hospital’s cross-training and staffing policies and discouraging the other from accepting a transfer to Churchill’s department. The issue in Waters was whether the hospital could base Churchill’s termination on what she actually said or on what it reasonably believed she said. The court concluded the latter. In dictum, the plurality indicated Churchill’s speech, as understood by the employer, was unprotected inasmuch as “the potential disruptiveness of the speech as reported was enough to outweigh whatever First Amendment value it might have had. . . . Churchill’s speech may have substantially dampened [the other’s] interest in working in obstetrics. Discouraging people from coming to work for a department certainly qualifies as disruption.” (511 U.S. at pp. 680-681 [114 S.Ct. at p. 1890, 128 L.Ed.2d at p. 702-703].)
In Gray v. County of Tulare (1995) 32 Cal.App.4th 1079 [38 Cal.Rptr.2d 317], a captain in the sheriff’s department was terminated for, among other things, publicly charging the newly elected sheriff with misusing county resources and the prerogatives of his office to reward supporters and punish opponents. The captain’s statements were reported in a local newspaper. The Court of Appeal concluded the captain was properly disciplined because his interest in making the statements was outweighed by the sheriff’s interest in maintaining order and discipline in the department. (Id., at p. 1096.) The court considered as persuasive the nature of the statements made, the fact they appeared in a public medium, and in the context of an ongoing dispute within the department. According to the court, the reported statements “contributed significantly to a public debate about discord within the Department which fostered dissension and impaired [the sheriff’s] ability to manage.” (Id. at p. 1094.)
*147Neither Waters nor Gray supports the analysis of the trial court. In both, the court balanced the right of the employee to make the statements against the disruptiveness to the employer of those statements. In other words, the measure of the negative impact on the employer was the message, rather than the way in which it was delivered or any surrounding conduct. The method of delivery was relevant only in assessing the full extent of the disruptiveness. A damaging statement made quietly to a single individual might normally be expected to cause less disruption than one made over a loudspeaker to a multitude.
In Rankin v. McPherson, supra, 483 U.S. at page 388 [107 S.Ct. at page 2899, 97 L.Ed.2d at page 327], the court stated: “In performing the balancing, the statement will not be considered in a vacuum; the manner, time, and place of the employee’s expression are relevant, as is the context in which the dispute arose. [Citations.]” However, in that case, as in Waters and Gray, it was the content of the employee’s statement which made it damaging to the employer. A clerical employee in a constable’s office had overheard a radio dispatch regarding an attempt on the President’s life and commented privately to her boyfriend, a co-employee, that “ ‘if they go for him again, I hope they get him.’ ” (Id. at p. 381 [107 S.Ct. at p. 2895, 97 L.Ed.2d at p. 322].) Considering the statement in context, and under all the circumstances, the court concluded the employee’s interest in making the obviously political statement outweighed any harm to the constable. (Id. at pp. 389-392 [107 S.Ct. at pp. 2899-2901, 97 L.Ed.2d at pp. 327-329].)
None of the foregoing cases prohibits consideration of the content of a public employee’s statements in isolation from accompanying, offensive conduct. The content of the speech may itself be objectionable and cause harm to the employer, as in the foregoing cases. However, separate and distinct harm may come, as here, from the employee’s use of objectionable language or from his accompanying conduct.
The trial court indicated that in assessing whether Wallace’s statements are protected by the First Amendment, they must be viewed in context. We agree. The context gives meaning to Wallace’s statements and demonstrates their protected nature. Wallace’s comment he is tired of this “Hispanic shit,” without more, could hardly be considered protected. However, in context it obviously referred to CDC’s policy of preferential treatment for Hispanic employees to the detriment of White males such as Wallace. This is not to say protected statements cannot be viewed in isolation from the conduct accompanying them. One who proclaims a moral objection to abortion, clearly a matter of public concern, while throwing a bucket of blood on an *148abortion center should expect to be prosecuted for vandalism, but not for the statements made.3
The Board concluded Wallace was properly punished for the conduct accompanying his statements and for his use of profane language. This is not in dispute. What is in dispute is whether Wallace may be punished as well for critical comments to a subordinate, minority employee at the workplace concerning CDC’s preferential treatment policy. As previously explained, this turns on the respective weights of Wallace’s interest in speaking out on a subject of public concern and CDC’s interest in maintaining harmony and order in the workplace. In striking this balance, “[v]igilance is necessary to ensure that public employers do not use authority over employees to silence discourse, not because it hampers public functions but simply because superiors disagree with the content of employees’ speech.” (Rankin v. McPherson, supra, 483 U.S. at p. 384 [107 S.Ct. at p. 2897, 97 L.Ed.2d at p. 324].)
Neither CDC nor the trial court attributes any harm, actual or potential, to CDC from Wallace’s critical comments to Picone about the Department’s preferential treatment policies. The statements were made in private and there is no evidence they were overheard by strangers to the conversation. The fact Wallace, a White male, objected to these policies did not come as a surprise to Picone. She told Wallace she understood how he felt because she was married to a White male peace officer. Although CDC argues Wallace’s statements about favorable treatment for Hispanics “most likely engendered disharmony among employees at DVI,” there is no evidence of this in the record. What there is evidence of is that CDC’s preferential treatment policies benefitting Picone and Hispanics generally provoked disharmony among employees within the Department. Wallace’s outburst was merely a manifestation of this preexisting disharmony.4
The trial court concluded Wallace’s conduct toward Picone “created a hostile or abusive work environment and constitutes unlawful discrimination.” That conclusion lacks any support in the record. The incident in *149question was initiated by Picone and lasted only a few minutes, followed later that evening by a brief telephone conversation which Picone did not consider harassing. The incident was between coworkers, although Wallace was a higher level employee at the time. Picone selected both the time and the place of the encounter. Except for the fact Picone is Hispanic, there is nothing in Wallace’s statements which would suggest they were an attack on her personally rather than on CDC’s affirmative action policies. Other witnesses testified Wallace never displayed any signs of racial or ethnic animus or hostility toward women. Picone understood how Wallace felt regarding affirmative action but nevertheless adhered to her position that minorities deserve preferential 5
The case cited by the trial court to support its conclusion, Harris v. Forklift Systems, Inc. (1993) 510 U.S. 17 [114 S.Ct. 367, 126 L.Ed.2d 295], is inapposite. There, a female employee was repeatedly made the target of sexual insults and innuendoes by the company’s male president. Although the president promised to stop after the employee complained, he failed to do so and the employee quit. She sued under title VII of the Civil Rights Act of 1964 and the Supreme Court concluded a viable claim was stated regardless of whether the conduct seriously affected the employee’s psychological well-being.
Harris involved persistent misconduct by the company president which continued after the employee complained. Here, there was a single, brief incident by a coworker, albeit one at a higher level within the prison hierarchy. In Harris, the misconduct of the company president was misconduct by the employer itself. Here, the misconduct of Wallace was not misconduct by the employer. On the contrary, Wallace was disciplined by the employer for his actions.
“[N]ot all workplace conduct that may be described as ‘harassment’ affects a ‘term, condition, or privilege’ of employment within the meaning *150of Title VII. [Citation.]” (Meritor Savings Bank v. Vinson (1986) 477 U.S. 57, 67 [106 S.Ct. 2399, 2405, 91 L.Ed.2d 49].) For harassment to be actionable, “. . . it must be sufficiently severe or pervasive ‘to alter the conditions of [the victim’s] employment and create an abusive working environment.’ [Citation.]” (Ibid.) No such severe or pervasive harassment is evident here.
In our view, the Board struck the proper balance between the interests of Wallace in expressing his disagreement with CDC’s preferential treatment policies and the interests of CDC in suppressing such dissent. The Board reasonably concluded Wallace’s statements, in the context of their delivery, were protected by the First Amendment and refused to consider them in assessing punishment. Based solely on Wallace’s conduct accompanying his statements, including the use of profane language and grabbing Picone by the collar and shaking her, the Board concluded a 30-day suspension was an appropriate punishment. We agree.
“Generally speaking, ‘[i]n a mandamus proceeding to review an administrative order, the determination of the penalty by the administrative body will not be disturbed unless there has been an abuse of its discretion.’ [Citations.]” (Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194, 217 [124 Cal.Rptr. 14, 539 P.2d 774].) “In considering whether such abuse occurred in the context of public employee discipline, ... the overriding consideration ... is the extent to which the employee’s conduct resulted in, or if repeated is likely to result in, ‘[h]arm to the public service.’ . . . Other relevant factors include the circumstances surrounding the misconduct and the likelihood of its recurrence.” (Id. at p. 218, citations omitted.) “In weighing these factors, we may consider the nature of the profession in issue, since some occupations such as law enforcement, carry responsibilities and limitations on personal freedom not imposed on those in other fields. [Citation.]” (Thompson v. State Personnel Bd. (1988) 201 Cal.App.3d 423, 429 [247 Cal.Rptr. 210].)
The Board cited a number of factors supporting its reduction of the discipline from dismissal to a 30-day suspension. Wallace had an excellent work record free of discipline since he first began working for CDC in 1981. His work record contains numerous “outstanding” performance evaluations and commendations. By “universal acclaim,” Wallace is a “tireless” worker and one of the best sergeants at DVI. Other mitigating circumstances cited by the Board include Wallace’s years of frustration over being unable to obtain a second watch position to spend more time with his son, and his voluntary enrollment after the incident in a program to learn how better to control his emotions and deal with people. To these, we would add the fact *151that CDC’s legally sanctioned discrimination against Wallace because of his race and sex is a burden that only the most saintly could reasonably be expected to bear with enduring equanimity.
The trial court indicated the Board failed to give adequate consideration to the fact Wallace was a superior officer, Picone had gone to Wallace to discuss his referring to her as a “lop,” the incident occurred at the workplace, and Picone was “severely impacted, emotionally.” However, all of these matters were mentioned by the Board in its opinion and there is no reason to believe they were not given due consideration.
Based on all the circumstances, but excluding any consideration of the content of Wallace’s protected statements to Picone, the Board did not abuse its discretion in reducing Wallace’s punishment to a 30-day suspension.
The judgment is reversed and the matter remanded to the trial court with directions to enter judgment denying CDC’s petition for writ of administrative mandamus. Wallace shall recover his costs on appeal.
Davis, J., concurred.
So much so that at the November 1996 General Election, the voters approved Proposition 209, which adds to the California Constitution a provision prohibiting the state from discriminating against or granting preferential treatment to any individual or group on the basis of race, sex, color, ethnicity or national origin in the operation of public employment, public education or public contracting.
CDC argues the “weapons” used by Wallace were the same as proscribed by the John V. court. Presumably, CDC refers to use of the word “fuck.” However, as the John V. court explained: “We understand ‘fuck’ is now a ubiquitous term frequently heard in movies or songs or overheard in essentially every social environment. We are also aware Cohen explained ‘the particular four-letter word being litigated here is perhaps more distasteful than most others of its genre, it is nevertheless often true that one man’s vulgarity is another’s lyric.’ (Cohen v. California [(1971) 403 U.S. [15,] 25 [29 L.Ed.2d [284,] 294].) But our concern is not with improving the auditory ambiance of the community by excising certain words which some may think are offensive.” (167 Cal.App.3d at p. 769.) Clearly, the John V. court was not concerned with the word used but with the manner in which it was used. What we have said concerning the word “fuck” applies, a fortiori, to the word “shit.”
CDC argues Wallace’s conduct was “criminal.” While it is true that even the slightest touching can constitute a technical battery under Penal Code section 242 (People v. Rocha (1971) 3 Cal.3d 893, 899, fn. 12 [92 Cal.Rptr. 172, 479 P.2d 372].), the resort to that discription in this factual context strikes us as overwrought. The best evidence of this is that Picone has not accused Wallace of assault.
In urging that content cannot be viewed in isolation from accompanying conduct, the dissent blurs the distinction between conduct and context. As indicated, the content of particular speech must be viewed in the context of its delivery. In this matter, context would include the fact Wallace’s statements were made in the workplace, were made to a coworker who was in a more junior position, and followed Picone’s completion of a two-year assignment to a position for which, but for affirmative action, she was not eligible. Context would also include the fact Wallace had experienced years of frustration over his inability to obtain a second shift position’to which less-senior minorities had been assigned.
There is no evidence of actual or potential harm to Picone either. Although Picone ultimately transferred out of DVI, the record does not disclose whether this transfer was detrimental to her economically or otherwise. Picone herself testified she sought a transfer to
*149get away from the racism that was getting worse “throughout the institution,” and not simply because of the incident with Wallace. A concern with or objection to a policy of preferential treatment for minorities does not equate with racism.
Picone filed a complaint with the Department of Fair Employment and Housing, but the nature of that complaint, i.e., whether based on the content of Wallace’s statements or the accompanying conduct, is not revealed. CDC contends it was required to conduct a “fairly extensive investigation” in response to Picone’s complaint. However, there is nothing in the record regarding this purported investigation.
The dissent suggests the record shows Wallace resented Hispanic officers’ receipt of preferential treatment. This is true. However, the dissent carries this one step further to suggest Wallace resented Picone because she received preferential treatment. This is not supported by the record. One may resent another’s receipt of preferential treatment without resenting the individual. There is no evidence Wallace blamed Picone or other minorities for his troubles. On the contrary, Wallace never displayed signs of racial or ethnic animus or hostility toward minorities or women.