Why Some Things Can't Be Said At Work

Imagine that a government employer threatened an employee with termination for putting a flyer on an employee bulletin board for an "alternative" lifestyle--while allowing groups promoting traditional lifestyles to put up their materials. Equal protection violation, right? Narrow-minded religious bigots at it again, right? You just know that the mainstream media would be clucking up a storm.

But because the employees threatened with discipline were promoting "one man, one woman"--you won't hear much about this. There's a bit of discussion of it online, and in a few newspapers. George Will, for example:

Marriage is the foundation of the natural family and sustains family values. That sentence is inflammatory, perhaps even a hate crime.

At least it is in Oakland, Calif. That city's government says those words, italicized here, constitute something akin to hate speech and can be proscribed from the government's open e-mail system and employee bulletin board.

When the McCain-Feingold law empowered government to regulate the quantity, content and timing of political campaign speech about government, it was predictable that the right of free speech would increasingly be sacrificed to various social objectives that free speech supposedly impedes. And it was predictable that speech suppression would become an instrument of cultural combat, used to settle ideological scores and advance political agendas by silencing adversaries.

That has happened in Oakland. And, predictably, the ineffable U.S. Court of Appeals for the 9th Circuit has ratified this abridgement of First Amendment protections. Fortunately, overturning the 9th Circuit is steady work for the U.S. Supreme Court.

Some African American Christian women working for Oakland's government organized the Good News Employee Association (GNEA), which they announced with a flier describing their group as "a forum for people of Faith to express their views on the contemporary issues of the day. With respect for the Natural Family, Marriage and Family Values."

The flier was distributed after other employees' groups, including those advocating gay rights, had advertised their political views and activities on the city's e-mail system and bulletin board. When the GNEA asked for equal opportunity to communicate by that system and that board, it was denied. Furthermore, the flier they posted was taken down and destroyed by city officials, who declared it "homophobic" and disruptive.

GNEA filed suit claiming that their right to free speech was denied because they were warned against putting up flyers in

public view which contained statements of a homophobic nature and were determined to promote sexual orientation based harassment,” and noted that violation of AI 71 could result in “discipline up to and including termination.”

The federal district court decision (which is here) makes the claim that there isn't really much of a dispute to argue. On the one hand, the trial judge claimed that the plaintiffs (GNEA) weren't much injured:

On plaintiffs’ side of the balance is their interest in speaking. This interest is slight, as the restriction placed on their speech under the facts at bar was quite limited: Plaintiffs were prohibited from posting a particular flyer on an office bulletin board. Plaintiffs themselves acknowledge that no restriction has been placed on their speech outside of work (by, for example, threatening them with termination if they speak outside the workplace). They further acknowledge that they can discuss their views with co-workers as they wish at appropriate times (at lunch, on a break).

I can't argue the point. I agree with those who argue that an employer has a right to limit employee speech. If the guy at McDonald's doesn't want to say, "Would you like to SuperSize that?" he doesn't have to keep working there. In practice, of course, this recognition of an employer's rights works to the benefit of homosexuals, because large corporations are overwhelmingly run by liberals and leftists; that's part of why almost all employers bend over forwards to make homosexuals feel welcome--and force everyone else to smile vacantly if the subject comes up.

I can even agree with the concern about the potential for workplace disruption, for which the trial judge relied on a U.S. Supreme Court decision, Pickering v. Board of Education (1968). Reading Pickering, however, it is hard to imagine that the ACLU would be happy about it--the Supreme Court upheld a school board firing a teacher for writing a letter to the newspaper criticizing the school board's handling of finances. This is a far different situation than GNEA's suit involved. In some respects, GNEA had a weaker position than Pickering did. Pickering lost his job for actions that took place completely away from work; GNEA was challenging actions that were definitely in the workplace.

The trial judge not only felt that GNEA didn't have much of a claim to a right to use the bulletin board, but also agreed that there wasn't much to the employer's claim that it had a good reason to do what it did:

Defendants’ countervailing interest is also modest. As the court’s recitation of the law makes clear, workplace disruption is the touchstone of the employer’s interest in the Pickering balance. Here, there is no dispute that Rederford and Christy’s co-worker Jennings disturbed dispute that removal of the flyer was the direct result of the investigation of Jennings’ complaint. But whether the particular sensitivity of a single coworker amounts to cognizable workplace disruption under Pickering is far from clear. Furthermore, the bulk of Jennings’ disquiet appears to have stemmed from her conversation with Rederford, an event that may have been precipitated by the flyer, but was nonetheless separate from the flyer. That said, the flyer appears to have been the root of a dust-up of sorts in the office -- a Pickering disruption writ small.

If GNEA's dispute was with a private employer, this would be a slam dunk decision in favor of a private employer. As I said, I'm not impressed with the claim that there's some overpowering right to say whatever you feel like at work--even if you are a government employee. But because there is a government employer involved, I do think there's a legitimate claim that GNEA has for equal protection of the law.

GNEA was not allowed to put a flyer up on the bulletin board--and they were warned that while they could use the email system to announce the existence of their group, it was subject to editorial restrictions intended to avoid offending homosexuals. Obviously, when homosexual groups use employer resources to send out their materials, they don't have to worry about being censored to avoid offending straights. In theory, sure, but in practice, I can't imagine that the City of Oakland would even think of suggesting that a gay group's announcement of National Coming Out Day would offend GNEA's members--and maybe they shouldn't send it.

What is really the most significant part of this, however, is how incredibly sensitive some people are:

The flyer came to the attention of Judith Jennings (“Jennings”), a lesbian employee in CEDA who used the copy machine near which the flyer was posted. Jennings Decl (Doc #41) ¶6; Melaugh Decl (Doc #43) Ex A (Rederford Depo) at 130:21-131:6. Jennings felt “targeted” and “excluded.” Jennings Decl (Doc #41) ¶7. Shortly after seeing the flyer, Jennings spoke with Rederford, whose name and phone number (along with Christy’s) appeared on the flyer. Id ¶8. This conversation left Jennings “feeling anxious about working in the same office as [plaintiffs]” and she “could not believe that [she] worked with someone who condemned homosexuals like [her] so much.” Id ¶9.

In essence, Jennings pulled the levers of power to remind these two women in the office that their disapproval of homosexuality was less important than Jennings' disapproval of their disapproval. In short, when there is a conflict of values, instead of acting like a grown-up, and agreeing to disagree, she decided that her emotional problems required the heavy hand of the government come down on the GNEA.