Coauthor: David J. Canupp
A recent news story features a man allegedly discharged from his Decatur, Alabama, employer for refusing to remove a display featuring the battle flag of Northern Virginia from his pickup truck. Apparently these two workers believe that their employer is somehow barred from taking adverse action against them based upon their exercise of a right of expression. They are wrong, but this is a point often misunderstood by employees and employers alike.
The First Amendment bars Congress from restricting a person’s free speech. First Nat’l Bank of Boston v. Bellotti, 435 U.S. 765, 779 (1978). Because free speech is considered a fundamental component of the liberty encompassed under the Due Process Clause of the Fourteenth Amendment, the Fourteenth Amendment “incorporates” the Free Speech Clause of the First Amendment as applicable against state governments and their instruments and political subdivisions. Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 500–1 (1952).
What the First Amendment does not restrict, however, is the actions of a private employer with respect to their employees’ speech. Columbia Broadcasting Sys., Inc. v. Democratic Nat’l Comm., 412 U.S. 94, 114 (1973) (“That ‘Congress shall make no law . . . abridging the freedom of speech, or of the press’ is a restraint on government action, not that of private persons.”). Generally speaking, an employee has no right to free speech against his employer unless his employer is a so-called “state actor.” For purposes of constitutional analysis, a state actor is either the government or a political subdivision or agency of the government, or “if there is such a ‘close nexus between the State and the challenged action’ that seemingly private behavior ‘may be fairly treated as that of the State itself.’” Brentwood Academy v. Tenn. Secondary School Ass’n., 531 U.S. 288 (2001).
Likewise, while there is a growing array of federal laws banning discrimination and retaliation against employees, no federal law protects against mere exercise of ordinary free expression. The most commonly used federal anti-discrimination law, Title VII of the Civil Rights Act of 1964, makes it generally illegal for private employers to discriminate in employment on the basis of the employee’s race, color, religion, sex, or national origin. 42 U.S.C. § 2000e-2. That law also bars employers from retaliating against employees who engage in certain statutorily protected activity, such as complaining about sexual harassment. In a very real sense, this law protects “speech,” but it is a much smaller subcategory of “speech” than the First Amendment contemplates.
Other laws extend similar protections to those who speak out against disability discrimination, genetic discrimination, age discrimination, and the like. And then there is a whole category of so-called “whistleblower” legislation—laws that encourage employees to speak out if their employer is guilty of waste, fraud, or abuse of government funds, violates the requirements of the Patient Protection and Affordable Care Act, or otherwise uses the principle of free speech to vindicate illegal actions. The most notable of these is the False Claims Act, which primarily applies to government contractors—entities that deal with government funds and whose employees are, in essence, stewards of those funds. In that context, the rights of employees to ensure that public monies are well spent are specifically protected.
Finally, the National Labor Relations Act (NLRA) has been interpreted to protect the rights of employees to engage in “concerted activity” toward unionization, which includes airing grievances about workplace policies (including pay practices).
However, notwithstanding the NLRA and the growth of anti-retaliation and “whistleblower” protection laws, there is no federal law broadly protecting individuals who engage in mere “free speech,” much less “free speech” with which their employer disagrees or deems disruptive in the workplace. Courts reviewing employee claims of discrimination because of the employee’s expressive activity have recognized this lack of federal protection. For example, Dixon v. Coburg Dairy, Inc., 369 F.3d 811, 819 (4th Cir. 2004) says: “Congress has extended numerous constitutionally inspired protections to members of the private workplace . . . but notably has refrained from extending free speech rights to the private work force.”
Therefore, except in the circumstances set out above, it is perfectly legal under federal law for a private company to discharge an employee for his expressive speech or conduct. In fact, when it comes to enforcing rules against the display of a Confederate flag in the workplace, taking action against an employee could be characterized as necessary to comply with other anti-discrimination laws. Not surprisingly, the display of a Confederate flag could be interpreted by coworkers as offensive, even as a sign of disdain for a particular race. Black employees who are subjected to such displays could claim a hostile work environment, a particular type of violation of Title VII in which the employer allows the working environment to become permeated with discriminatory insults toward a particular class of workers. Indeed, many reported racially hostile working environment cases involve unwanted displays of Confederate flags in the workplace. Prudent employers will, therefore, want to ban the display of the flag, and can cite compliance with Title VII as their grounds for doing so.
Those who wish to display a Confederate flag as an exercise of their “free speech” rights should feel perfectly within the bounds of the First Amendment doing so on the steps of a capitol building or the county courthouse. But they cannot be heard to complain when their private employer bans that display from the workplace—or even when that employer fires the employee because his or her private displays of the flag are tarnishing the employer’s own public image. The law simply provides employees no such protection.
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