Presented by:

Mark Meyerhoff

Let’s Talk Politics and Religion: First

Amendment Issues in the Workplace

PublicEmployment

PublicCitizen

First Amendment Conflicts

• Conflict between public employment and right to free speech as a citizen

• Right of free speech v. need for government to run efficiently

• Right of free speech v. right of government to provide harassment-free workplace

• Right of free speech v. prohibition on government endorsing a particular religious viewpoint or position

What First Amendment Rights Does a Public Employee Enjoy?

• Public employees have right to engage in speech that is a “matter of public concern.”

• Public concern = any speech that is not related only to a personal grievance or dispute.

• Religious and political speech will likely always be protected.

Must the Government Allow Any First Amendment Speech?

• Fact that speech is “matter of public concern” does not mean government must allow employee to engage in speech.

– First Amendment rights v. need for government to run efficiently

– Harassing speech can be prohibited

– Establishment Clause concerns (religious speech)

How Can Employer Show Disruption to Efficiency of Government?

1. Speech impaired discipline or control by supervisors

2. Speech disrupted co-worker relations

3. Speech eroded close working relationships premised on personal loyalty and confidentiality

How Can Employer Show Disruption to Efficiency of Government?

4. Speech interfered with speaker’s performance of his/her duties.

5. Speech obstructed routine office operations.

Other Disruption Factors

• Reasonable predictions of disruption may be sufficient

• Speech by policy makers v. speech by rank and file

• How broadly was speech disseminated

Types of Religious Speech

• Displaying personal religious items (Bibles, posters, messages, etc.)

– Where are items kept?

– Are employees allowed to display other non-work related items?

Types of Religious Speech

• Posting of religious messages

– Consider and enforce rules regarding posting of other non-work related material

– Are other non-work related postings allowed?

– Are rules content-based or content-neutral?

Types of Religious Speech

• Proselytizing – “Spreading the faith”

– Consider any disruption

– Broad prohibitions on religious speech likely unlawful

– Consider potential harassment issues

– Is there coercion on behalf of the speaker?

– Does speech violate Establishment Clause

Types of Religious Speech

• Displaying religious messages on clothing

– Are other messages permitted?

– Can messages or postings reasonably be seen as government endorsement of religion?

Coercion

• Government can prohibit speech which requires participation in religious activities as a condition of employment, promotion, salary, etc.

– Is speech merely personal view or an implied requirement of employment

– Consider whether speaker is in position of authority

Establishment Clause Considerations

• Consider audience of religious speech – co-worker v. member of public

• Consider forum in which speech is made – work area v. area open to public

• How would reasonable person view the speech

Examples of Speech That Could Violate the Establishment Clause

• Prayers at public meetings or events

• Display of religious items in public places

• Religious speech by high-ranking official

Political Speech in the Workplace

• Most likely speech of “public concern” and thus entitled to First Amendment protection.

• Usually analyzed under balancing test

Types of Political Speech

• Controversial political statements

– Balancing test invoked

– “Potential disruption” can be sufficient

Types of Political Speech

• Endorsement of particular political candidate

– Employee challenging incumbent

– Employee endorsing candidates for public office

Types of Political Speech

• Wearing political messages

• Bumper stickers

• Posting political messages

Types of Political Speech

• Political affiliation

– Employment decisions made on basis of affiliation or non-affiliation of employee with a political party

– Violates the Constitution

Types of Political Speech

• Speech related to organized labor

– Labor criticizing management

– Balancing test applies

– Consider whether speech is personal grievance or legitimately a matter of public concern