Crafting Exceptions to Laws That Limit Private-Employer-Imposed Speech Restrictions

As I mentioned last week, ten years ago I wrote a descriptive and analytical law review article called Private Employees’ Speech and Political Activity: Statutory Protection Against Employer Retaliation, which aims to catalog these often-little-known statutes. This year, I’m returning to the subject, trying to analyze the strongest arguments for and against such statutes. The article (Should the Law Limit Private-Employer-Imposed Speech Restrictions?) will be published later this year in a Journal of Free Speech Law symposium issue, together with other articles that stemmed from an Arizona State symposium on Non-Governmental Restrictions on Free Speech; and last week and this I’d like to serialize it here.

Last Tuesday and Wednesday, I blogged the introduction and the beginning of the argument in favor of such statutes, followed by an explanation of why such statutes usually don’t violate employers’ constitutional rights. This week, I’ve discussed some other arguments against such statutes (and you can see the whole article right now, if you’d like, by looking at the PDF). Say, though, that we do conclude that there should be some protection for private employee speech. Just what sort of protection should this be, and in particular what exceptions, if any, should there be for speech that unduly interferes with the employer’s interests?

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One possible answer is that there should be such exceptions, written in general and necessarily vague terms, and potentially applicable to a wide range of ways in which speech can interfere with the employer’s business.

One such approach, for instance, might be to borrow the “undue hardship” doctrine from Title VII’s religious accommodation law. Under Title VII, religious objects can get exemptions from generally applicable work rules, but only so long as the exceptions don’t create an “undue hardship” to the employer, which is to say so long as they impose only”de minimis costs.”[1] An employee therefore could presumably wear religious headgear or insignia on the job, notwithstanding a policy that forbids headgear or jewelry. But if the headgear is likely to cause safety problems (for instance, because it might get caught in machinery) or the insignia are likely to cause undue controversy (presumably for reasons beyond just religious prejudice), the employer would be able to deny the accommodation .[2]

Another possibility might be to borrow the “bona fide occupational qualification” doctrine from Title VII’s disparate treatment law.[3] Under Title VII, employers can discriminate based on religion, sex, and national origin when that’s justified by such a “BFOQ.” And some of the employee speech protection statutes likewise allow employee speech to be restricted if the restriction relates to a BFOQ,[4] if the restriction “is reasonably and rationally related to the employment activities and responsibilities of a particular employee or a particular group of employees, rather than to all employees of the employer,”[5] if the speech is “in direct conflict with the essential business-related interests of the employer,”[6] or if the speech creates “reasonable job-related grounds for an employee’s dismissal.”[7]

Finally, a third possibility might be to borrow the Pickering balance from government employee speech cases. Under that test, an employee’s speech could be restricted if the “employee’s speech interests are outweighed by the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.”[8]

The real question under all these tests, though, is whether the exceptions cover speech that interferes with the employer’s activities by leading customers or coworkers to dislike the employer—for instance, when the speech is critical of the employer, or when the speech offends some people. On one hand, the employer’s argument for a right to fire an employee is especially strong when the employee is harming the employer’s bottom line rather than helping it (see Part II.F).

But on the other hand, a right to speak only so long as the speech isn’t too unpopular (which is what lower federal courts applying the Pickering balance have generally done) seems like a pretty poor sort of free speech right. And limiting the right this way would encourage a sort of analog to the heckler’s veto—social media mobs pressuring the employer to fire the employee, stemming from their members’ knowing that such pressure will indeed make it legal for the employee to be fired for his speech.

Unsurprisingly, the cases dealing with the existing employee speech protection statutes—usually under BFOQ-like exceptions—haven’t reached a clear solution to the problem. Generally speaking, when the term “bona fide occupational qualification” is used with regard to sex discrimination or religious discrimination, customer or coworker hostility is not seen as sufficient to trigger the BFOQ exception. In the Equal Employment Opportunity Commission’s words, “the preferences of coworkers, the employer, exception clients or customers” “do not warrant the application of the bona fide occupational qualification.”[9] Thus, for instance, that some people are offended or alienated by an employee’s religion does not justify the employer in firing the employee. When laws that ban discrimination based on off-duty conduct (including speech), speech, or political affiliation use the same phrase, this suggests that employers likewise may not fire an employee just because his off-duty actions offend customers or coworkers.

And some cases have found some speech to be protected even when it does injure the employer. A Connecticut case, for instance, held that an employee’s report to a state agency of “allegedly wrongful or illegal conduct” by the employer’s customer was protected notwithstanding the statutory exception for speech that “substantially or materially interferes.”[s] with the employee’s bona fide job performance or the working relationship between the employee and the employer.”[10] The employee, a worker for a home nursing company that sold services to nursing facilities, reported substandard care at one of the facilities.[11] The court acknowledged that the employee’s speech may have harmed the employer’s “business relationship with their customer,”[12] but concluded that such speech is “the exact kind of ‘expression[] regarding public concerns that are motivated by an employee’s desire to speak out as a citizen’ to which … this statute applies.”[13]

Another court refused to read a business-interests exception into Louisiana’s facially categorical ban on firing for political activity. Even when “the ‘business’ justification for firing plaintiff in this case is a real one”—such as that plaintiff’s political advocacy “would antagonize persons who could withdraw business from plaintiff’s employer”—”the policy of the statute is unmistakable: the employer may not control political candidacy of his employees.”[14] Similarly, a court concluded that public complaints about safety were protected by the Colorado statute, despite its exception for restrictions that “relate[] to a bona fide occupational requirement,” and despite the court’s concluding that employee loyalty could be seen as a bona fide occupational requirement.[15]

On the other hand, the same court held that an employee’s letter to a newspaper complaining about alleged mistreatment of employees and poor customer service did breach the duty of loyalty, and thus was not protected by the Colorado statute.[16] Yet employee relations and customer service can still be important to the public (though not quite as important as safety), and complaints of safety are likely to harm the employer interests even more than complaints about worker relations or customer service.

Likewise, a New York appellate court read an exception for activity that “creates a material conflict of interest related to the employer’s trade secrets, proprietary information or other proprietary or business interest” as allowing the German National Tourist Office to fire an employee for becoming known as the translator of some Holocaust revisionist articles.[17] Presumably the court’s view was that the activity could lead to public hostility to the office, and that this hostility created a “conflict of interest” between the employee and the employer’s “business interest.”

Tomorrow: An alternative—narrow, specifically defined exceptions for particular kinds of speech.

[1] Trans World Airlines, Inc. v. Hardison, 432 US 63, 84 (1977).

[2] See, eg, EEOC v. Oak-Rite Mfg. Corp., No. 99-cv-1962-DFH, 2001 WL 1168156, at *10 (SD Ind. Aug. 27, 2001).

[3] 42 USC § 2000e-2.

[4] Eg, Colo. Rev. Stat. Ann. § 24-34-402.5(1) (West, Westlaw through July 15, 2022 of the 2d Reg. Sess. 73d Gen. Assemb.); Minn. Stat. Ann. § 10A.36 (West, Westlaw through July 1, 2022 Reg. Sess.).

[5] eg, Colo. Rev. Stat. Ann. § 24-34-402.5(1) (West, Westlaw through July 15, 2022 of the 2d Reg. Sess. 73d Gen. Assemb.).

[6] ND Cent. Code Ann. § 14-02.4-03 (West, Westlaw through 2021 Reg. and Spec. Sess. 67th Legis. Assemb.).

[7] Mont. Code Ann. § 39-2-903(5) (West, Westlaw through 2021 Sess.).

[8] Kennedy v. Bremerton School Dist., 142 S. Ct. 2407, 2423-24 , (2022) (cleaned up).

[9] 29 CFR § 1604.2(a)(1)(iii) (2022); see also Fernandez v. Wynn Oil Co., 653 F.2d 1273, 1276–77 (9th Cir. 1981) (preference of clients in South America for dealing with males cannot make sex into a BFOQ); Diaz v. Pan Am. World Airways, Inc., 442 F.2d 385, 389 (5th Cir. 1971) (preference of airplane passengers for female flight attendants cannot make sex into a BFOQ); Bohemian Club v. Fair Emp’t & House. Comm’n, 231 Cal. Rptr. 769, 781 (Ct. App. 1986) (client preference for male service personnel, based upon the supposed “inhibiting effect women employees might have upon men” in a private club, cannot make sex into a BFOQ); Ray v. Univ. of Ark., 868 F. Supp. 1104, 1126–27 (ED Ark. 1994) (even if race could ever be a BFOQ, students’ preference for police officers of their own race is insufficient); Bollenbach v. Bd. of Educ. of Monroe-Woodbury Cent. Sch. Dist., 659 F. Supp. 1450, 1472 (SDNY 1987) (preference of religious parents for male school bus drivers doesn’t make sex into a BFOQ); Kern v. Dynalectron Corp., 577 F. Supp. 1196, 1201 (ND Tex. 1983) (“mere customer preference of one religion over another is not enough to raise religious discrimination to the level of BFOQ,” though Saudi law that imposes the death penalty for non-Muslims who go to Mecca does suffice to make religion a BFOQ for a job as helicopter pilot flying to Mecca). But see Brown v. FL Roberts & Co., Inc., 896 NE2d 1279, 1289 n.11 (Mass. 2008) (“We leave to another day whether or to what degree customer preference could allow an employer to discriminate based on religion. But see 804 Code Mass. Regs. § 3.00 (1995) (customer or coworker preference is not bona fide occupational qualification).”).

[10] Mendez v. Utopia Home Care, Inc., No. CV096006222, 2010 WL 4885347, at *3–*4 (Conn. Super. Ct. Nov. 5, 2010).

[11] Id.

[12] Id.

[13] Id. at *5 (quoting Cotto v. United Techs. Corp., 738 A.2d 623, 632 (Conn. 1999)).

[14] Davis v. La. Computing Corp., 394 So.2d 678, 679 (La. Ct. App. 1981). But see Smedley v. Capps, Staples, Ward, Hastings & Dodson, 820 F. Supp. 1227, 1230 n.3 (ND Cal. 1993) (taking the opposite approach as to the similarly categorical California statute, though I think with no real support in California caselaw).

[15] Marsh v. Delta Air Lines, Inc., 952 F. Supp. 1458, 1461–62 (D. Colo. 1997).

[16] Id.

[17] Berg v. German Nat’l Tourist Office, 248 AD2d 297 (NY App. Div. 1998); Paul Schwartzman, It Just Isn’t Write[;] German Axed Over Hate Mag ArticleDaily News (NY), May 11, 1995, at 6.

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