Joel Dillard

Representing Mississippi Workers

The Mississippi Workers' Rights Blog

Free Speech under the Mississippi Constitution

The freedom of speech and of the press shall be held sacred according to the Mississippi Constitution, Art. 3 Sec. 13. This is the strongest free-speech language I am aware of in any law anywhere. This language is far stronger than the First Amendment of the U.S. Constitution, which states only that Congress shall make no law . . . abridging the freedom of speech. As discussed in a past blog post, the Courts have interpreted the language Congress shall make no law as limiting the First Amendment to state action.

But the Mississippi Constitution may not be limited to actions of the government. It says, flatly, that this freedom shall be held sacred, and presumably this means it shall be held sacred by everyone. If true, the implications of this could be staggering - unthinkable even. Certainly it is an interpretation well worth serious consideration.

Yet this language has been quoted only about ten times by the courts since 1950. Some of the discussion in the cases suggests support for the idea, e.g, They are not idle and meaningless terms, but signify philosophical concepts of a constitutional republic and of the intellectual independence of every citizen. Evers v. State, 131 So. 2d 653 (Miss. 1961). But the courts have rarely - if ever - deliberately distinguished this broader language in the Mississippi Consitution from the federal First Amendment. They have only said, in passing, that We are of the opinion, without deciding, that Article 3, Section 13, supra, by modern-day standards, appears to be more protective of the individual's right to freedom of speech than does the First Amendment since our constitution makes it worthy of religious veneration.ABC Interstate Theatres, Inc. v. State, 325 So. 2d 123 (Miss. 1976). Accord Gulf Pub. Co., Inc. v. Lee, 434 So. 2d 687 (Miss. 1983).

Perhaps it is an idea whose time is coming.

The NLRB’s misguided General Motors decision and so-called civility at work

Today's post is by one of the firm's Peggy Browning Fellows, Nicholas Stonecypher.

The NLRB’s recent decision in General Motors, 369 NLRB No. 127 (July 21, 2020) restricts the right to engage in union activity. Setting itself up as a defender of civility, respect, and order in the workplace, the Board holds that discourteous union activity is not protected by the National Labor Relations Act.

The basic concept here is not new. It is against the law to fire an employee because of his or her union activity. But not all union activity is protected by law. Violence, unsafe behavior, and other violations of valid employer rules can be legitimate reasons to terminate an employee, even if union activity is also involved. This has been the law for decades. If the employee crosses the line the union activity is no longer protected. What the General Motors decision did is move the line. It is now more difficult to protect employee organizing.

Under the prior rule, an employer’s punishment of worker outbursts during union activity was evaluated by considering four factors:

  1. the place of the discussion;
  2. the subject matter of the discussion;
  3. the nature of the employee’s outburst; and
  4. whether the outburst was, in any way, provoked by an employer’s unfair labor practice.
Atlantic Steel Co., 245 NLRB 814 (1979). The judge would consider the outburst as part of the protected activity, and then ask whether the worker lost protection because of the abusive outburst.

For example, a black union worker at GM told one of his managers to (1) shove it up [his] f---ing ass, (2) responded to another manager’s request to talk quietly by mocking the manager as a slaveowner, and (3) on another date said that he would mess [the manager] up. Under the Atlantic Steel Co. test, the second and third actions would be unprotected, and the employee could be fired for them. But the first one was protected. This was because, although it was extremely crude, it did not cross the line drawn by Atlantic Steel.

That was not good enough for this NLRB. The Board changed the rules to make it easier to find activity unprotected.

The Board’s reasoning is that profanity like this can be part of harassment. Under Title VII of the Civil Rights Act, (if the harassment is for an illegal reason) an employer is responsible for the harassment of its employees if the employer has knowledge of it but doesn’t take prompt remedial action. Therefore, the NLRB argued, employers were trapped between a duty to discipline harassing employees, and an obligation not to discipline workers engaged in union organizing. By punishing employers for disciplining harassers, the NLRA is undermining the anti-discrimination aims of the Civil Rights Act.

But, as the National Nurses United explained in their amicus brief, the Board is able to point to no such case in fact. That’s because there likely is no case where the Atlantic Steel rule protected conduct that violated Title VII of the Civil Rights Act. The Board points to several cases where offensive comments by workers involved in organizing a union were held to be protected by the Act. In addition to the instant case, the Board cites cases where workers shouted expletives at their employer as well as instances where workers hurled racial epithets. This is pure misdirection.

A harassment claim under Title VII requires the plaintiff to show that the harassing conduct is more than an isolated incident, offhand comment, or mere offensive utterance. For conduct to constitute harassment it must change the terms and conditions of employment for the plaintiff. Indeed, NNU’s brief quotes the Supreme Court’s point that Title VII is not meant to become a general civility code. And yet, the Board now holds up Title VII to justify its imposition of just such a civility code. If the conduct that the new rule regulates doesn’t rise to the level of harassment, what exactly is it regulating? Union organizing. Why? Because employers find union organizing abusive.

Now, when employers punish workers for being abusive while organizing with their coworkers, workers will lose legal protection if the employer can effectively persuade the Board that the reason for the punishment was the profanity and not the union activity. The Board has decided that it can separate the outburst from the union activity.

But is this really possible? The Atlantic Steel standard was based in a very practical understanding that the protections Section 7 affords would be meaningless were we not to take into account the realities of industrial life and the fact that disputes over wages, hours, and working conditions are among the disputes most likely to engender ill feelings and strong responses. Consumers Power Co., 282 NLRB 130, 132 (1986).

Consider captive audience meetings, which are a tried and true anti-union tactic. Employers hold mandatory meetings, staffed by high-paid labor lawyers and consultants to persuade employees to vote against the union. Employers, who cut the checks that keep the lights on in each of their workers’ homes, require them, on pain of dismissal, to attend a meeting filled with anti-union propaganda. Could a worker standing up to say F--- you, I’m voting for the union now be more easily dismissed?

The new rule applies the Wright Line standard which proceeds in three steps. (We've previously posted on Wright Line in plain language on this blog!) First, it requires the punished worker to show that she

Second, the employer then has the burden of proving that he would have fired the union worker for the outburst, even if she wasn’t engaging in section 7 activity. In other words, the boss has to convincingly argue that the only reason they’re firing her is because she said F--- you . . . and not because she said . . .I’m voting for the union!

Third, if the employer is convincing, then the worker gets one more shot to show that the employer’s explanation in the second step is not persuasive; that it is just an excuse.

It’s an open question how far this goes. Employee speech at work is still technically protected by the NLRA, but now AJs sensitive to civility have the basis they need to rule against workers. The Board is notorious for flip-flopping rules just like this as the Board appointees shuffle back and forth between Democrat and Republican.

Workers should know that they can still talk about union organizing at work. And if your employer retaliates, it is still unlawful. Just try to remember to quietly say darnit instead of shouting g--d---it so as not to upset the delicate sensibilities of your exploiters. Or the Board.

The Future of Religious Accommodation and Discrimination

Last time we talked about the current law on religious discrimination. Today we'll dig deeper on religious accommodation.

In 1964, Congress outlawed discrimination based on religion in the workplace. Congress also required the employer to accommodate the religious practices of its employees, unless doing so would be an undue burden.

But early on, in 1977, the Supreme Court heard a case about how much burden was due, and said that the employer was not required to do anything that was more than de minimis - latin for itty-bitty. Trans World Airlines, Inc. v. Hardison, 432 U. S. 63, 84 (1977). This means that if it was even mildly inconvenient for the employer, the employer was not required to accommodate the religious practice. It completely eviscerated the statute.

That may be changing. The government has asked the Supreme Court to take up the issue and expand this protection, so that the term undue burden means something real. Although the Supreme Court has not yet taken up the issue, Justices Alito, Thomas and Gorsuch have written a short opinion indicating that, when the right case comes along, they intend to take the issue up and will support expanding the protections of the law.

I think it likely that the liberals on the Court would also support this. (Marshall and Brennan dissented in Hardison.) Practically, this means that there is a good chance that, in the right case, the Court will unanimously or near-unanimously expand the protections against religious discrimination in Title VII. I look forward to it.

Employers must accommodate religion, but only if they know suspect there is a religious need for accommodation

Today's post is by one of the firm's Peggy Browning Fellows, Mary Kate Dugan.

Most Americans understand that the First Amendment protects one’s right to practice religion from governmental interference. However, many would be surprised to learn that they also are entitled to certain religious rights at work, even if they work for a private company. Under Title VII of the Civil Rights Act, the federal government forbids employers from discriminating on the basis of religion and imposes the duty that employers reasonably accommodate an employee’s religion.

Under Title VII, an employee’s right to religion takes several forms. An employer cannot consider a job applicant’s religion as a factor in its decision to hire an otherwise qualified job applicant. Additionally, an employer cannot factor in an employee’s religion in a decision about whether to promote, determine compensation, discipline, or fire an employee. Importantly, Title VII defines religion to include not only religious belief, but observances and practices. Therefore, employers have a duty to reasonably accommodate the religious observances and practices of their employees. If an employer cannot reasonably accommodate an employee’s religion without incurring undue hardship, or an undue burden to itself, the employer has a defense against a charge of discrimination.

All of these issues came to bear in the 2015 Supreme Court case, EEOC v. Abercrombie & Fitch Stores, Inc., 135 S.Ct. 2028. In that case, a Mulism woman applied and interviewed to work at a nationally branded clothing store. Concerned that the job applicant’s headscarf would violate the companies’ workwear look policy, and that she would not be willing to remove it due to her religion, the manager decided not to hire the applicant. The Supreme Court ruled that religious discrimination did not require the manager to have actual knowledge of the applicant’s need for an accommodation: instead, an employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions.

Although actual knowledge is not required under Abercrombie, a plaintiff still must prove discriminatory motive. A subsequent decision by the Fifth Circuit in Nobach v. Woodland Village Nursing Center, 799 F. 3d 374 (5th Cir. 2015), provides caution on this point. In Nobach, a nursing home activities refused to pray the rosary with a patient. When the patient complained to a manager, the manager fired the aide. During her firing, the aide told the manager that she had refused to do the rosary because it was against her religion. The manager replied, I don’t care if it is against your religion or not. If you don’t do it, it’s insubordination.

While the aide won her jury trial, she lost on appeal. The Fifth Circuit stated that it simply cannot find evidence that, before her discharge, [the employee] ever advised anyone involved in her discharge that praying the Rosary was against her religion. In other words, the employer could not have been motivated by the employee’s religion if it was never aware of her religion. Therefore, there was no religious discrimination. The Abercrombie case highlights a nuance in Title VII religious discrimination law: an employer need not have actual knowledge of an employee’s religion for an employee to prove a discriminatory motive. But Nobach foregrounds the main rule: to prove discrimination, an employee must prove a discriminatory motive, and that means showing that the employer at least suspected that a conflict between the employment duties and an employee’s religion. While almost all employee’s retain religious rights in the workplace, those rights can be tricky to assert. If you are in a position where your religion has put you at odds with your workplace policies or your job responsibilities, consider consulting with a lawyer before you go asserting your rights.

Breastfeeding and pumping at work

Today's post is based on the excellent work of Dr. Joan Younger Meek, MD, MS, FAAP, FABM, IBCLC. Doctor Meek is the Past-Chair of the American Academy of Pediatrics Section on Breastfeeding and the Associate Dean for Graduate Medical Education at Florida State University College of Medicine.

The benefits of breastfeeding for children and mothers are clear. It prevents infant illnesses, promotes optimal growth of the child and improves the intelligence and health of the child throughout his or her life. Lack of breastfeeding worldwide is thought to be responsible for 800,000 childhood deaths a year. Breastfeeding also has health benefits for the mother. About 20,000 cases of preventable maternal death from breast cancer are attributed to lack of breastfeeding.

The scientific and medical consensus is that babies should be exclusively breastfed for at least the first six months of life, with continued breastfeeding at least through the first year of life and beyond, as long as mutually desired by mother and child. Breast milk should remain the primary source of nutrition throughout the first year.

A lack of workplace support for breastfeeding contributes to failure to follow these essential health recommendations. Rules guaranteeing pumping breaks are associated with an 8-9 percentage point increase in exclusive breastfeeding. Lactation rooms and breaks to express breastmilk increase total breastfeeding at 6 months by 25%. For this reason, the medical and scientific community overwhelmingly supports recent changes in the laws protecting breastfeeding, and particularly pumping at work.

These changes include requirements that all employers provide breastfeeding mothers paid pumping breaks as needed (in a private place other than the bathroom).

Breastfeeding is one of the most powerful experiences mother and child can share. The mother can nurture her child in this unique and loving way, knowing that she is giving her child better health, intelligence, and wellbeing for the rest of her child’s life. But to do so, a working woman needs the employer to provide a protected space and time where she can pump. It is not much, but it is absolutely essential. A new mother should not have to choose between her job and her child’s wellbeing.

It is a crime to retaliate against a public employee for doing her job.

In my never-ending search for ways to protect the free speech rights of employees, I have recently developed a legal theory that I think has a lot of promise.

The problem: the law protecting internal whistleblowers in state/local government is weak or nonexistent

The problem is that, as discussed in a prior post, a government employee's whistleblowing up the chain of command is not protected by the First Amendment of the U.S. Constitution. And as discussed in another post, only official discipline is considered retaliation under the First Amendment. There is a Mississippi Whistleblower Protection statute, but it also only applies to a small category of protected speech - typically reports to specific public officials like the AG, DA, etc. that most whistleblowers never think to call.

After all, most government employers have strict (and illegal) rules prohibiting reporting misconduct outside the Agency, and act as if they have an open door policy (whatever that means) for reporting up the chain of command or to HR. (Guess what, it's a trap!) Which means that most whistleblowers have only made their reports internally. There are a lot of serious limits on our ability to protect these whistleblowers in state and local government using the U.S. Constitution.

The solution: McArn plus Miss. Code § 97-9-127

In Mississippi, the tort of wrongful discharge is named after the case​McArn v. Allied Bruce-Terminix Co., Inc., 626 So. 2d 603 (Miss. 1993). Under the​McArn doctrine, as subsequently developed, it is tortious to terminate any person’s employment because the employee reported a crime - either internally or externally. Morris v. CCA of Tenn., LLC, (Cause No. 3:15-CV-00163-MPM-RP​)(N.D. Miss. May 16, 2017).

So far so good. That solves the problem for reports up the chain of command. These are protected by McArn. But the trouble is that most such reports by whistleblowers are not necessarily of a crime - at least, you would not think so initially.

But what is very common is that the whistleblower makes a first report of misconduct, is threatened by the supervisor, and then reports both the threat and the original misconduct further up the chain. The key point here is that now we just may have a protected report of a crime on our hands. The key question is what the threat was. If the thing threatened is unlawful - not necessarily criminal - then the threat is a crime. If the employee is later fired, there may be a real McArn claim.

The crime is Retaliation, Miss. Code § 97-9-127. It is much, much broader than retaliation is under the First Amendment. A person commits the offense of retaliation if he intentionally or knowingly harms or threatens to harm another by any unlawful act in retaliation for anything lawfully done in the capacity of public servant, witness, prospective witness or informant. Retaliation is a Class 2 felony. Young v. State, 119 So. 3d 309 (Miss 2013) (holding that the threat itself need not be unlawful, so long as the threat is to do an unlawful act);​Wilcher v. State, No. 2015-KA-01008-SCT (Miss. March 23, 2017) (upholding statute from constitutional challenge). In the statute, threats are defined as any menace, however communicated and harm is defined as loss, disadvantage or injury, or ​anything so regarded by the person affected. This would clearly include threats to fire or discipline. (It may be possible to use the statute more directly to establish a public policy exception for terminations for reporting non-crimes as applicable to public employees.) As one court said, [i]n the court's view, this state law authority may well buttress plaintiff's state law claim that his termination was in violation of Mississippi public policy.Boisseau v. Town of Walls, Miss., 138 F. Supp. 3d 792, 808 (N.D. Miss. 2015). And the employee does not necessarily have to know about the statute to benefit from it, as long as he makes a good faith allegation of retaliation. Roop v. S. Pharm. Corp., 188 So. 3d 1179, 1188 (Miss. 2016). Though it still isn't airtight by any means, it solves many of the key problems with the First Amendment and McArn cases.

Free Speech Fundamentals: How bad does it have to get before you have a retaliation lawsuit?

The firm is pretty preoccupied right now with the issue of free speech, particularly the free speech rights of government employees. It is something we've written about before. (Links are at the bottom of this post.)

The issue for today is: how bad does the retaliation have to be for you to have a federal case for free speech retaliation? The Supreme Court gave one answer in an interesting footnote, the First Amendment . . . already protects state employees . . . from even an act of retaliation as trivial as failing to hold a birthday party for a public employee . . . when intended to punish her for exercising her free speech rights. Rutan v. Republican Party of Ill., 497 U.S. 62, 75 n.8 (1990) (quotations omitted).

What have the courts done with that? The answer: it depends where you live. The courts are split on the issue. In almost the entire country, there is one answer, but in Mississippi, Louisiana, and Texas we have a different answer.

Most places have tried to scale back a little bit on that broad language. They say that only things which would actually deter speech are actionable. In New England, the court said the question is whether an employer's acts, viewed objectively . . . would have a chilling effect on the employee's exercise of First Amendment rights. Barton v. Clancy, 632 F.3d 9, 28 (1st Cir. 2011). In the upper Mid-Atlantic, the court said the question is whether the alleged retaliatory conduct was sufficient to deter a person of ordinary firmness from exercising his First Amendment rights. Suppan v. Dadonna, 203 F.3d 228, 235 (3d Cir. 2000). In the Mid-West, the court said that anything likely to deter the exercise of free speech is actionable. Power v. Summers, 226 F.3d 815, 820 (7th Cir.2000). And in the West and West Coast the court has said the same. Ray v. Henderson, 217 F.3d 1234, 1243 (9th Cir. 2000);Dahlia v. Rodriguez, 735 F.3d 1060, 1078-79 (9th Cir. 2013).

But what about here in the freedom-and-small-government deep south? Surely the Fifth Circuit - which covers Texas, Louisiana and Mississippi - will be true to the Supreme Court's dicta on this one.

I'm joking, of course. The Fifth Circuit's version of the analysis is far worse. Only official discharges, demotions, refusals to hire, refusals to promote, and reprimands are actionable.​Pierce v. Texas Dept. of Crim. Justice, Inst. Div., 37 F. 3d 1146, 1149 (5th Cir. 1994). Even oral threats or abusive remarks and investigations are not actionable retaliation. Breaux v. City of Garland, 205 F.3d 150, 157 (5th Cir. 2000). Even though it is pretty obvious that this retaliation would frighten and silence the employees, the court does not care. The court has declined to expand the list. . . . noting that some things are not actionable even though they have the effect of chilling the exercise of free speech, because expanding the list may enmesh federal courts in relatively trivial matters. Breaux v. City of Garland, 205 F.3d 150, 157 (5th Cir. 2000).

Let that one sink in. Apparently, the Breaux court thinks chilling free speech is a trivial matter. As wrong-headed as it may be, the Fifth Circuit's test does have one benefit - it is (in theory) pretty easy to apply. Any official disciplinary action is covered, and anything else is not. For example, in Harris v. Victoria Independent School Dist., 168 F. 3d 216 (5th Cir. 1999), the court held that a teacher had retaliation case because, among other things, she was given an official reprimand by her supervisor because of her protected speech.

The term “reprimand” in the caselaw is a business term used in the sense of the act of telling somebody officially that they have done something wrong, whether verbally or in writing. Cambridge Business English Dictionary, Cambridge University Press, 2011. Of course, every employer uses its own language to describe this kind of discipline - and some may have reprimands in many different flavors with different names indicating different severity. They may call it an admonishment or a counseling or a write-up or a reprimand, but this is not the legal issue: the legal question is whether this is employment discipline by the employer itself or mere criticism on the supervisor’s own initiative.

More on free speech of government employees:

Civil rights and the Church's own employees

While Bostock gets all the headlines - and rightly so - a couple of other short opinions from the Supreme Court this term on religion in the workplace have caught my eye.

First is Our Lady of Guadalupe School v. Morrisey-Berru. In this case, the Supreme Court decided that it was unconstitutional to protect religious school teachers from age discrimination, disability discrimination, and other civil rights violations. This was because it is a violation of the Church's First Amendment rights to interfere in any way in questions of administration concerning the Church's ministers - a doctrine known as the ministerial exception.

I agree that there should be a strong ministerial exception. The last thing we want is government involvement in internal Church affairs. But I think the Court got this particular case wrong.

First, clear rules are needed. The Supreme Court frequently fails to understand that, practically speaking, they don't get to make most of the decisions. A collection of diversely biased lower court judges do. By refusing to adopt a bright line and using a vague standard, there will be great danger that the courts will vary the test according to how much each judge likes the religion at issue - a terrible result from a Constitutional perspective. In my view, both majority and dissent missed the mark on this point.

Second, the two employees here were pretty typical school teachers. Although the Court said they educated their students in the Catholic faith, the school did not even require them to be practicing Catholics - let alone avowed religious - to have this job. Yet the Court said they were ministers protected by the exception. This seems bizarre. The Church is basically saying we have decided not to regulate these teachers' religious life; that would seem to me to be disclaiming a ministerial exception.

I wonder if Catholic hospitals could take doctors and nurses under the ministerial exception by simply requiring them to conform end-of-life patient advice to the teachings of the church? Or perhaps by requiring them to post religious messages in the hallways? This could be pretty broad.

In my opinion, the rule should be that the ministerial exception applies to every single employee that is required to be a member in good standing of the religious organization in order to have the job - and to no one else. It ties the exception to a clear indication that the Church has decided that the religious life of this person is relevant to the job. It makes for a clear and bright-line rule. Most religions have some kind of criteria for inclusion or membership, even though the level of formality varies.

And for those religions that have no membership or inclusion/exclusion criteria at all, I cannot see why they would need a privilege to exercise a power to exclude that they have religiously chosen to abandon. This would also have the benefit of encouraging each church to clearly choose: is this particular part of the organization doing a truly religious function? If so, then why would they think someone who is not even religious could do the job?

Homosexuality and Bostock's sex discrimination analysis

You may have heard something about our subject for today. As the headlines shouted it Supreme Court outlaws discrimination against gays or something like that. And yes, that is the most important practical element of the Court's decision. It is something that a lot of people have been working on for quite some time - including here at this firm, as we have discussed more than once on this blog.

But the headline just scratches the surface. Most people probably do not realize just how important this case will be - and for reasons that having nothing to do with homosexuality. It will probably be cited tens of thousands of times in the next few years, often in cases having nothing to do with sexual orientation. I've already cited it twice, and the case has only been out a week or so. The logic of the case is revolutionary - simple, but transformative.

The key is the word because. Title VII says an employer cannot discriminate against any individual . . . because of such individual's race, color, religion, sex, or national origin. As I have said previously, the logical view is that this means that any employer action which differentiates between the sexes is unlawful sex discrimination.

In Bostock the Court agreed. It interpreted because as meaning a strict kind of what is called but for causation. The analysis is simple: if you imagine the same person in the same situation, and simply switch the sex, would they be treated differently? If so, this is discrimination because of sex. It does not matter what else is going on, what other factors are at play. Thus, it isn't discrimination based on homosexuality which is illegal, per se. It is just that discrimination based on sexual orientation will typically also be sex discrimination. It's about biological sex, not sexuality.

For example, imagine a man named Pat is fired. Is it discrimination? To find out, just imagine Pat were a woman. Change absolutely nothing else. Would Pat still have been fired? So, for example, if Pat is fired for sleeping with Larry. Does it matter that Pat is a man? If the answer is yes then this is sex discrimination. If the answer is no then it is not. No matter why the answer is what it is, the mere fact the answer is different because Pat is a man means it is discrimination against Pat for being a man - not for being gay necessarily, but for being a man.

This logic has surprising consequences. To take one example, there will be no more man's dress code and woman's dress code: no man can be penalized for wearing hair or clothes that meet the woman's dress code, or vice versa. Decades of caselaw goes out the window. Willingham v. Macon Telegraph Publishing Co., 507 F. 2d 1084 (5th Cir. 1975).

In fact, at first glance the decision would appear to mandate complete sex-blindness by employers. (One minor exception remains the Bona Fide Occupational Qualification (BFOQ), which we've discussed before.) Putting aside the BFOQ, any rule or decision which - even in an indirect or circuitous way - acknowledges the existence of sexual differences between employees needs careful consideration.

So, to take an even more surprising example, those subject to the Act can no longer penalize people for joining single-sex clubs.

What does this mean for efforts to combat discrimination - particularly sexual harassment? Does this mean the employer cannot see sex differences when trying to eliminate discrimination in the workplace? Not quite. It can consider the sex of the victims, but not the sex of the perpetrator.

Lets revisit Pat. If Pat supervises two employees, Nancy and Tom, and Pat treats Nancy much better than Tom because Pat prefers women, then the employer can fire Pat for doing so - as long it would fire Pat regardless of whether s/he is herself a man or woman. It is not about Pat's sex, but the sex of Pat's victims.

Back to an employer having a rule punishing people for joining same-sex clubs. Here we are getting into weird, speculative considerations. But suppose Pat joins the Drones club. The club has a rule that only men can join. If Pat were a woman and successfully managed to join, she would not be punished. But because Pat is a man, he is punished. Thus the punishment is itself discriminatory. What then, can be done to combat this kind of sex discrimination without committing sex discrimination in the process? Change what you are penalizing Pat for. Don't penalize Pat for joining the Drones, penalize Pat (when Pat is on the admissions committee of the Drones) for refusing to admit Nancy while admitting Tom. This is not about Pat's sex - you would penalize Pat for discriminating against Nancy regardless of whether Pat was a woman - but about the sex of Pat's victims, which is an acceptable consideration.

Finally, note that the same logic applies to race. Anything other than pure race-blindness will be entering a mine-field - regardless of the employer's good intentions. It will be interesting to think about the consequences there. Suppose a supervisor named Derrick posts on Facebook There is no country on earth where black people have more opportunities than America. Anyone who disagrees can just get out. Hard to imagine Derrick's own race won't determine whether the employer punishes Derrick. And how should an employer treat employees that join a racially exclusive club?

And religion may be an even more fascinating area.

Free Speech Fundamentals: Government employees have free speech rights only when they speak as private citizens.

The Supreme Court has said that government employees do not leave their constitutional rights at the door when they go to work. They have the same rights to free speech as any other citizen. But things can be tricky because - in a sense - they are the government. And the people in charge in government are supposed to be able to control what the government does, including its speech. In other words, when government employees speak, and the speech is part of their job as government employees, then the government boss can control the speech as it wishes.

This is the reason for the Supreme Court's Garcetti rule. Among other things, the Garcetti rule says that a government employee's speech is protected only if they are speaking as a private citizen, and not as a public employee.

This should be pretty straightforward. It should mean that PR people and others with responsibility for speaking to the public or the media are unprotected when engaging in that public speech. Unfortunately, the Court has interpreted it far too broadly, to include even purely internal speech, such as when an employee blows the whistle on a supervisor's misconduct by reporting it up the chain of command. The Court says this is usually part of the government job, and so unprotected.

But there is a limit. When an employee goes outside the chain of command and blows the whistle directly to the public or the media, it is typically not part of the job. The courts have made it quite clear in caselaw interpreting Garcetti that when a public employee takes his job concerns to persons outside the workplace in addition to raising them up the chain of command at his workplace, then those external communications are ordinarily not made as an employee, but as a citizen. Davis v. McKinney,​518 F.3d 304, 313 (5th Cir. 2008). This remains true when speech concerns information related to or learned through public employment. Lane v. Franks, 134 S. Ct. 2369, 2377 (2014). The critical question under Garcetti is whether the speech at issue is itself ordinarily within the scope of an employee's duties, not whether it merely concerns those duties. Id. at 2379.

One interesting Fifth Circuit case on this point is Anderson v. Valdez, 845 F. 3d 580 (5th Cir. 2016). In​Anderson, a staff attorney for a state court sent a letter to the state supreme court and filed a disciplinary complaint with the State Commission on Judicial Conduct describing what he believed to be malfeasance by one of his bosses. His boss (the judge he had reported) retaliated by preventing him from working with another judge. The Court held that it was well established law that these sorts of complaints to people outside the employer are typically speech as a private citizen, and thus protected by the First Amendment.

Unfortunately, however, that was not the end of the saga. Three years later (five years after the retaliation) the case was still dragging on, and the employer tried again to throw the case out and made a slightly different argument. Anderson v. Valdez, 913 F. 3d 472 (5th Cir. 2019). This time the government claimed that the staff attorney had promised - as part of his job duties and oath of office - that he would report misconduct to the state commission. For this reason, the report was part of his job and not speech as a private citizen. This time, the Fifth Circuit agreed with the employer and noted that this was an exception to the usual rule. Because his job duties specifically included reporting to the commission it was not protected speech.

The Anderson saga provides many, many lessons for us as lawyers - sad, unfortunate, cynical lessons. But for the employee the main lesson should be to take great care to consult with an attorney about what will and will not be protected speech if you are planning to go out on a limb and blow the whistle on your boss. The steps you need to take are likely to be counterintuitive.

This post is part of a series on free speech rights of government employees. Read the rest below:


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To get legal advice about an employment law, labor law, federal employee law, whistleblower protection, labor unions, worker cooperatives, immigration, discrimination, harassment, wrongful termination, severance, or any related question, you must first have a conflicts check by the firm. We represent exclusively workers, worker cooperatives and unions, but we still must check for potential conflicts of interest, for example, between a supervisor and employee.

First provide the firm with your name, and the name of the person you are making claims against - and no other information. This allows the firm to check for such conflicts of interest. Until you receive confirmation from an attorney that there is NO CONFLICT, none of the information you provide will be considered confidential. Do NOT provide any confidential information before we have asked you to do so.

Once we have confirmed there is no conflict, you may discuss your matter with the attorney in a little more detail, and, if requested, make an appointment. If at your appointment the firm accepts you as a client in writing, then the attorney will be able to provide you with employment law advice.