Violent and tragic events in Charlottesville, and the intense national debate that followed, have put the issue of hate speech at the forefront of the public’s attention. A number of publications have addressed the issue of when a private employer can discharge an employee who, on the employee’s own time, participates in organized hate speech. Publications have been careful to narrow their analysis to private employers because the issues for public employers are more complex. There are some answers, however, and public employers can and do have the ability to take decisive action.
General First Amendment Principles
What if a public employee, be it a city clerk, a teacher, a police officer or a firefighter, appears on the TV news engaging in organized expressive activities that are antagonistic to persons in protected classifications like race, gender, sexual orientation or religion? If the individual is identified publicly in the media, there can be very substantial impacts on the agency. Even if the individual is not identified, the agency could have well-founded concerns about the employee’s conduct ultimately reflecting negatively on the agency and on the employee’s effective performance of job duties.
The agency has to act in a manner consistent with the First Amendment. Although the First Amendment does not protect such forms of speech as obscenity, true threats and defamation, courts have not yet developed an exception for hate speech. In the 1992 U.S. Supreme Court case R.A.V. v. St. Paul, in an opinion by the late Justice Scalia, the Court determined that even what is commonly seen as hate speech can have constitutional protection. (A 1969 Supreme Court case, Brandenburg v. Ohio, had a similar holding.) In addition, many legal scholars have struggled to provide a concise definition of hate speech that would not be vague and impossible to apply consistently.
Just because expression has First Amendment protection, however, does not mean the speech cannot be regulated. Speech can be regulated in a manner consistent with the First Amendment so long as the government can show a sufficiently compelling interest and as long as courts determine that other specific criteria are met. As of the Summer of 2017, courts may more readily view hate speech as subject to regulation, in part because of its ability to incite violence imminently in the current climate.
Responding to Employee Conduct
If an employee engages in improper conduct outside of work, including expressive conduct, and the public employer believes the employee should be disciplined for it based on harm to the agency, there are a number of unique legal issues public employers must consider.
- Personnel or Other Rules at Issue
At the outset, the employer must identify specifically what workplace, personnel, administrative or other agency rule was violated by the employee’s expressive conduct and association. This will likely not be difficult, given that agencies, in particular public safety agencies, invariably have rules that restrict associations even outside the office (for example, prohibiting public safety employee association with felons and criminal gangs). Agencies also have various “conduct unbecoming” policies. Nevertheless, for some agencies, and for some jobs, it may be more problematic to identify a particular rule at issue, particularly if the employee classification does not involve substantial interaction with the public.
- First Amendment Considerations
Next, the public employer must consider the First Amendment free speech and association implications of disciplining employees, even assuming that a workplace rule applies to prohibit the conduct at issue. Under the First Amendment, a public employee has the right to engage in speech on matters of “public concern” that are outside of the employee’s official duties. (The Supreme Court described this framework in its cases Garcetti v. Ceballos and Connick v. Myers.) In evaluating “public concern,” courts do not take into account whether an employee’s viewpoint on a particular issue is or is not abhorrent to society. As a result, even heinous and offensive views on political or cultural issues will likely meet the “public concern” requirement. If the employee’s speech satisfies this criterion, then the public employer can only discipline an employee for the speech if the employer can satisfy a balancing test, in particular, that the employee’s speech interests are outweighed by the legitimate administrative interests of the agency. (See, Pickering v. Board of Education.)
- Off-Duty Conduct and Relation to Work
The public employer also has to contend with general principles of law that prohibit disciplining employees for off-duty conduct. The United States and California Constitutions, as well as other laws, to some extent protect the privacy of employees in their off-duty conduct. Employers can only control off-duty conduct in limited circumstances when an employee’s right of privacy in personal activities is outweighed by an employer’s legitimate workplace interests.
It is important for the employer to be able to make the required showing of impact on the agency. A public employer may be able to make this showing by demonstrating that certain off-duty conduct harms the reputation or credibility of the agency, makes the employee unable to perform his/her duties satisfactorily, impairs working relationships with fellow employees, or hinders the agency in managing and directing its work force.
Another consideration is the off chance that an employee’s expression takes place in a context that could be considered “political” within the meaning of various state statutes governing political expression of employees. In California, specific statutory provisions limit the right of public employers to restrict political activities by their employees outside of work. Government Code section 3203 limits the right of cities, counties and most districts to place any restriction on the political activities of employees. One clear exception is that safety employees cannot participate in political activity while in uniform. (E.g., Gov. Code, § 3206.) In addition, California Labor Code sections 1101 and 1102 contain restrictions on employer efforts to control, direct or coerce employees with regard to political activities.
- Concerted Activity and Labor Relations
The public employer also has to be satisfied that the speech can be the basis for discipline consistent with state labor relations laws. Thus, the employer should determine whether the speech constitutes concerted activity regarding wages, hours and working conditions. Such speech could be recognized as protected by the Public Employment Relations Board (“PERB”). An example (from the context of the private sector and the federal National Labor Relations Act (“NLRA”)) is the recent conduct of a Google employee who wrote an internal memo questioning the company’s diversity efforts and making comments explaining the low number of women in technical positions. The employee lost his job at Google, and has since claimed that his conduct was protected speech on wages, hours and working conditions, and thus supposedly protected concerted activity under federal law. It remains to be seen how the federal labor board and courts will receive his claim, and whether they will ultimately consider his contentions as against public policy as expressed in federal statutes that prohibit discrimination on the basis of sex.
In general, in identifying bases for discipline, employers can look to numerous legitimate interests of the agency to discipline employees for participating in hate activities — to avoid an appearance of bias in other administrative functions; and to avoid creating an atmosphere in an agency that can contribute to claims of discrimination or hostile environment. For public safety in particular, the appearance of a lack of bias in serving the public in vital public safety functions can provide strong support for administrative actions. As can be expected, consulting with legal counsel in this process is advisable.