Articles Posted in First Amendment

Lev Craig

Last week, in Equal Employment Opportunity Commission v. R.G. & G.R. Harris Funeral Homes, Inc., the federal district court for the Eastern District of Michigan ruled on summary judgment that a funeral home’s termination of a transgender employee did not violate Title VII because the employer was entitled to a religious accommodation under the Religious Freedom Restoration Act (“RFRA”).

In October 2007, Aimee Stephens, started working at R.G. & G.R. Harris Funeral Homes, Inc. (the “Funeral Home”) as a funeral director and embalmer. On July 31, 2013, Ms. Stephens wrote a letter to the Funeral Home, in which she came out as transgender. In this letter, Ms. Stephens informed the Funeral Home that, as part of her transition from male to female, she planned to wear women’s clothing to work in accordance with the Funeral Home’s gendered dress code, which mandates that male employees wear a suit and tie and that female employees wear a skirt suit.

Lev Craig

Last week, U.S. District Court Judge Carlton Reeves’ ruling in Barber v. Bryant enjoined a new Mississippi state law – House Bill 1523, or the “Religious Liberty Accommodations Act” (“HB 1523”) – that would have gone into effect on July 1, 2016.  The court struck down HB 1523 on the grounds that it violated both the Establishment Clause and the Equal Protection Clause.

HB 1523 authorized discrimination by businesses and public employees who asserted one of three “sincerely held religious beliefs or moral convictions”: namely, the beliefs that marriage should be “the union of one man and one woman,” that sexual relations should only occur within a heterosexual marriage, and that a person’s gender is defined by their “anatomy and genetics at the time of birth.”

As quoted in a 2003 article by Robin L. Wakefield of the Information Systems Audit and Control Association, “The American Management Association‘s (AMA) 2001 Workplace Monitoring and Surveillance Report indicates that 82 percent of responding managers use some type of electronic monitoring in the workplace…monitoring Internet connections remains the predominant surveillance activity (63 percent), followed by storage and review of e-mail (47 percent) or computer files (36 percent), video recording job performance (15 percent), and the storage and review of voice-mail messages (8 percent). The top three reasons for employee monitoring are legal liability (68 percent), security concerns (60 percent) and legal compliance (50 percent).” Since those data were gathered, all evidence points to a steady and massive increase in the use of various forms of desktop, email, internet, audio and video surveillance by employers.

Many of the reasons that employers give for these practices are difficult to deny. For example, employers are vicariously liable for many actions by their employees and therefore have plenty of reason to monitor and control actions that could end up affecting the company’s bottom line–theft, harassment or other illegal workplace behavior, disclosure of company information, etc. Surveillance can be profitable in other ways: gathering detailed data about employees’ behavior allows companies to take steps to control processes and increase efficiency. Some of the stated reasons for employee surveillance seem downright beneficent. The CEO of “Sociometric Solutions,” a company that provides companies with equipment for monitoring their employees’ communication behavior at work, points to the example of Bank of America, which learned through monitoring that they could increase productivity 10% by giving employees a shared 15-minute coffee break each day.

Of course, the trend toward increasing surveillance of workers has led to concerns about privacy and a fierce debate about how much surveillance should be allowed by law. The statutory and case law in this area are yet to take shape; in practical terms, there are presently few legal restrictions on what companies can do when it comes to monitoring employees.

On December 11, 2013, the Court of Appeal of the Sate of California issued its decision in the gender and age discrimination case Hunter v. CBS Broadcasting, Inc. The Court remanded for the case for the trial court to consider whether Plaintiff has demonstrated a reasonable probability of prevailing on the merits of his claims.

In this case, Plaintiff filed a discrimination complaint alleging that Defendant CBS Broadcasting refused to hire him as a weather news anchor because of his gender and age. Defendant filed a motion to strike the complaint arguing that its selection of a newscaster qualified as an act in furtherance of its free speech rights. Defendant explained that Plaintiff’s lawsuit interfered with the station’s First Amendment rights because its “decision[s] as to who to select to represent itself in an on air broadcast . . . is an act in furtherance of free speech.” However, Plaintiff argued that the act underlying his claim had nothing to do with free speech, but instead was a “hiring policy” that “impose[d] a ban on the hiring of males from the most select positions.” The trial court denied the Defendant’s motion, concluding that Plaintiff’s claims did not arise from Defendant’s hiring decision, but rather from its discriminatory employment practices.

Defendant based its argument on the Strategic Lawsuits Against Public Participation (“SLAPP”) statute, which allows media defendants to obtain “the early dismissal of unmeritorious claims filed to interfere with the valid exercise of the constitutional rights of freedom of speech.” Under the two-step process applicable to anti-SLAPP motions, a defendant must show that the challenged activity (hiring of anchors) is “an act in furtherance of . . . free speech … in connection with a public issue.” If the defendant makes this showing, the plaintiff can defeat the motion by establishing a reasonable probability of prevailing on the merits (meaning that Plaintiff would prevail on his discrimination claim).

Recent court decisions suggest that not all employee speech is protected under the First Amendment or labor laws. While “liking” photos and comments on Facebook qualifies as protected speech under the First Amendment, comments that raise a reasonable possibility of disruption of the employer’s activities and legitimate interests are unprotected. The National Labor Relations Board recently confirmed this limit to employees’ freedom of speech under labor laws by holding that certain concerted activity is unprotected by the National Labor Relations Act.

In September of this year, the Fourth Circuit Court of Appeals held that a sheriff could not be terminated for simply “liking” the Facebook page of an opponent of the current sheriff. See Bland v. Roberts. However, substantive communications privately sent on social networks may be unprotected speech. In Gresham v. City of Atlanta et al., for example, the Atlanta Police Department was not held liable when it denied a promotion to a police officer after she criticized a colleague’s performance on Facebook through private messages. In this case, the Eleventh Circuit Court of Appeals held that the post was not protected under the First Amendment because it concerned pubic accusations of unethical conduct, which could jeopardize the good working relationship among officers as well as the department’s esprit de corps.

Shepherd v. McGee, presents another example of unprotected speech. In this case, the U.S. District Court for the District of Oregon determined that a state employer was justified in terminating an employee based on derogatory comments privately posted on her Facebook account, which made her employer and colleagues doubt her ability to perform her job. The plaintiff, who was a child protective services worker for the Oregon Department of Health Services, made derogatory comments about individuals receiving public assistance and had suggested the sterilization of individuals who had their parental custody rights revoked. The court agreed with the defendant’s argument that the employee’s posts irreparably impaired her ability to fulfill her job responsibilities since part of her job duty was to testify in court on child protective services matters and her posts made her impeachable by a defense attorney. Furthermore, because the employee’s speech was not directed to a wide audience and it was not considered to be at the core of the First Amendment, it was unlikely to be protected.

On November 7, 2013, the United States District Court for the District of Oregon rendered its decision in the Shepherd v. McGee case regarding private sector employees’ free-speech rights in their employment. The Court decided that contrary to employees in the public sector, employees in the private sector do not enjoy such rights. Therefore, when there is a First Amendment challenge to a Facebook firing, it is most likely that employers will continue to prevail – as in the instant case.

In this case the plaintiff worked as a caseworker for child-protective services at the Department of Human Services (DHS). In that role, she investigated reports of child abuse and neglect that came to her attention. One of her primary functions was to prepare juvenile court cases and make recommendations for juvenile court disposition. If she determined that the home was unsafe, she worked with the District Attorney’s Office to petition the court for protective custody. In making these determinations, she was supposed to be “a neutral appraiser of the settings in which the children live” and was not supposed to consider the employment status, religious beliefs, or political beliefs of the adults in the home, or concern herself with how they chose to spend money or furnish their home.

On her Facebook page, Plaintiff identified herself as a caseworker for the DHS but failed to include a disclaimer stating that the opinions were her own and not those of her employer. Plaintiff had hundreds of Facebook friends, including a judge, at least three deputy district attorneys, several defense lawyers, and more than a dozen law-enforcement officers.

On October 17th, 2013, the United States Court of Appeals for the 11th Circuit upheld the discipline of Maria Gresham, an Atlanta police officer, who posted comments on her Facebook, criticizing another officer of the department. The Court rejected Maria Gresham’s argument that her comments were protected under the First Amendment free speech.

Maria Gresham criticized her colleague for interfering in an unethical manner with the investigation of a person she had arrested for fraud and financial identity theft. Maria Gresham’s Facebook page was “set to private,” but was available for viewing by an unknown number of her “friends,” who had the option of broadly distributing the comments by sharing them. The department had a policy that required any criticism of a fellow officer to be “directed only through official department channels, to correct any deficiency, and . . . not be used to the disadvantage of the reputation or operation of the Department or any employees.” However, Maria Gresham violated this rule when she posted her comments on Facebook, which led the Office of Professional Standards to open an investigation on her behaviour.

When Maria Gresham was under investigation, a promotion came up for which she would have been eligible. Therefore, Maria Gresham argued that her lack of promotion was retaliation against her First Amendment Facebook speech. However, according to the department’s policy book, an employee under investigation was not eligible for promotion.

Six former employees of the Hampton, Va., Sheriff’s Office filed a suit claiming that they were not reappointed at their position because they supported the sheriff’s electoral opponent, Jim Adams, by « liking » his page on Facebook. The Plaintiffs alleged that they were retaliated against for exercising their First Amendment rights to free speech and association. The Fourth Circuit Court of Appeals sided with the plaintiffs and held that « liking » on Facebook is Consitutionally-protected Free Speech. The court of appeals reversed a ruling by a federal district judge who threw out the lawsuit last year on the grounds that a Facebook “like” was “insufficient speech to merit constitutional protection.”

The suit alleged that Sheriff Roberts retaliated against the plaintiffs in violation of their First Amendment rights by choosing not to reappoint them because they supported his electoral opponent. All plaintiffs alleged that Sheriff Roberts violated their First Amendment right to free association after they were not reappointed. Besides, four plaintiffs also alleged that the Sheriff’s actions violated their First Amendment right to free speech based on their instances of speech made in support of the other candidate during the 2009 election.

The First Amendment, in relevant part, provides that “Congress shall make no law . . . abridging the freedom of speech.” which is applicable to the states through the Fourteenth Amendment. The First Amendment also protects “the right to be free from retaliation by a public official for the exercise of that right.” However, the Government may impose certain restraints on public employees that would be unconstitutional if applied to the general public.