Does California law protect employee speech hostile to homosexuality, as well as employee speech that “defend[s] homosexuality”?

The L.A. Times reports:

Pasadena city officials placed Public Health Director Eric Walsh on temporary paid administrative leave Thursday after they learned of controversial statements he had made about homosexuality and evolution in online videos and audio clips.

The Pasadena Star News adds:

Walsh drew criticism last week after a series of recorded sermons surfaced online in which he preaches religious views that condemn gays, Muslims and Catholics, decries Darwin’s Theory of Evolution as a satanic belief, and calls pop culture icons like Oprah and Jay-Z examples of the spirit of the anti-Christ….

Topics discussed by Walsh in the pulpit include: homosexuality as a sin; Oprah, JAY Z, Beyonce and as examples of the spirit of anti-Christ; Darwin’s theory of evolution as a satanic belief; and describing the prophet Muhammad, founder of Islam, as a Satanist.

May a California city suspend an employee such as Walsh based on such speech?

1. The government acting as employer is constrained by the First Amendment when it comes to employment actions against employees; but it’s much less constrained than the government acting as sovereign — a government employee could be fired or otherwise disciplined for speech even if he couldn’t be imprisoned or fined for such speech. In particular, the government

    • may generally discipline employees for speech that’s not on matters of public concern (not relevant here),
    • may discipline employees when the speech tends to disrupt work relationships or relationships with clients or the public, if the disruption exceeds the value of the speech.

In light of the second element, the suspension of Walsh — and even an eventual firing — might well not violate the First Amendment. And this is especially so because speech by high-level city employees may be especially likely to disrupt relations with the public. Just as even party affiliation might be seen as a constitutionally permissible job qualification for high-level officials (though not most government employees), so a willingness to refrain from certain controversial social and political positions may so qualify.

2. Under Title VII of the Civil Rights Act of 1964, both government employers and most private employers generally may not discriminate against employees because of their religiosity. Here, though, the government’s action seems to have been because of Walsh’s anti-gay views and possibly other views, not because of the religious origin of those views. For instance, there’s no reason to think that Pasadena is just fine with high-level employees who express anti-gay views in secular ways but suspends such employees when they express their anti-gay views in religious views.

3. Under Title VII of the Civil Rights Act of 1964 (as amended in 1972), both government employers and most private employers must exempt religious objectors even from generally applicable work rules that interfere the objectors’ religious practices, but only if the exemption would impose only a slight burden on the employer. Here, I take it, Pasadena would say that exempting Walsh’s preaching from what it sees as a general rule that high-level employees shouldn’t do things that create public hostility to the employer would indeed impose a substantial burden on Pasadena.

4. Here, though, is the strongest argument against Pasadena’s actions: California statutes generally bar employers — governmental or public — from restraining their employees’ “political activity,” and the California Supreme Court has read this broadly to cover social causes more broadly, including the gay rights movement. Walsh might well be protected by the same statutes and decisions.

The relevant statutes, Cal. Gov’t Code §§ 1101-1102 — the violation of which is both civilly actionable and a crime — provide,

1101. No employer shall make, adopt, or enforce any rule, regulation, or policy:

(a) Forbidding or preventing employees from engaging or participating in politics or from becoming candidates for public
office.

(b) Controlling or directing, or tending to control or direct the political activities or affiliations of employees.

1102. No employer shall coerce or influence or attempt to coerce or influence his employees through or by means of threat of discharge or loss of employment to adopt or follow or refrain from adopting or following any particular course or line of political action or political activity.

And in Gay Law Students Ass’n v. AT&T (Cal. 1979), the California Supreme Court read these statutes broadly. “Political activity,” the court held, “cannot be narrowly confined to partisan activity,” such as electioneering. It could include participating in cause litigation, wearing anti-war armbands, and “associati[ng] with others for the advancement of beliefs and ideas,” including advancing such beliefs and ideas in public discourse broadly and not just in electioneering or party politics.

Moreover, the court made clear, speech aimed at changing social attitudes as a preparation for broader changes in law can also qualify as “political activity.” In particular, “identify[ing oneself] as homosexual” can be political activity, because it can help gays and lesbians change people’s views about homosexuality. Likewise, “defend[ing] homosexuality” and “identif[ying] with activist homosexual organizations” can qualify as “political activity.”

The same must apply to someone who speaks out against homosexuality. Criticisms of homosexuality, including religious criticisms, are obviously relevant to “the subject of the rights of homosexuals[, which] incites heated political debate today” (I quote again from the Gay Law Students opinion); likewise, of course, for views about evolution, Islam, and the like.

That the criticisms came in sermons, I think, do not strip them of their political quality, just as views on civil rights, pacifism, slavery, abortion, and the like aren’t stripped of their political quality when expressed in sermons. Indeed, treating commentary about “political[ly] debate[d]” topics as less legally protected against employer retaliation because it is expressed in a religious context would itself be impermissible religious discrimination in employment. (As I mentioned in item 2 above, the discipline of Walsh would be immune from a religious discrimination claim only if Pasadena’s argument is that it would equally react to secular speech expressing the same views.)

Section 1101 is limited to “rule[s], regulation[s], or polic[ies]” (though they need be written and formally promulgated rules). But, first, I doubt that Pasadena would describe its actions as merely ad-hoc, and unguided by any broader policy, since that invites an argument that they are indeed arbitrary and perhaps even religiously discriminatory.

Second, section 1102 is not limited to rules, regulations, or policies, but applies to any instance of an employer trying to coerce or influence political activity using threats of loss of employment. And, in the words of a Louisiana appellate court interpreting a similarly worded statute, “[T]he actual firing of one employee for political activity constitutes for the remaining employees … a threat of similar firings.” Surely people who work for Pasadena and who see an employee placed on administrative leave for his speech about homosexuality will see the employer action as a threat of similar retaliation, up to and including firing, for similar speech in the future.

For the same reason, I don’t think it matters that Walsh was put on leave with pay, and that the ostensible reason for the leave is to decide whether “whether his religious views about homosexuals, Muslims and other groups have influenced his performance as a city employee.” Employees know that being put on leave, even with pay, is a bad sign for one’s career, and is often a prelude to loss of employment. Seeing a coworker publicly put on paid leave for his public commentary is in practice going to “coerce or influence [other] employees through … threat of discharge” to avoid such public commentary themselves — just, as for instance, seeing a coworker put on paid leave after making antiwar statements, on the theory that he needs to be investigated to see if he might have sabotaged the war effort, would influence coworkers not to make such statements.

Naturally, if Walsh had been put on leave because of specific allegations of discrimination against gays, Muslims, pro-evolutionists, and the like, that would be a different matter, since the pressure on coworkers would be to avoid such allegations, not to avoid such speech. But here the news accounts that I’ve seen all suggest that it was his speech that led to the administrative leave, and it seems to me that the city’s action thus tends to coerce other employees into refrain from such speech.

Nor is there an exception from the statute for high-ranking employees, or for employees whose speech alienates coworkers, clients, or voters. As the Louisiana court noted in the case I cited in the previous paragraph, even when “the ‘business” justification for firing plaintiff in this case is a real one: plaintiff’s candidacy 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. We see no exemption from the legislative purpose because of the nature of the employer’s business.”

Note, by the way, that the statute only applies to employer-employee relationships, and not to broader business relationships, such as in the Donald Sterling controversy.

Eugene Volokh teaches free speech law, religious freedom law, church-state relations law, a First Amendment Amicus Brief Clinic, and tort law, at UCLA School of Law, where he has also often taught copyright law, criminal law, and a seminar on firearms regulation policy.
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