Most private employers don't find themselve on the receiving end of suits that implicate the first amendment. Public employers, schools and universities, face it constantly, having to balance the risk of disruption (or non-compliance with harassment laws) with not impinging on the protected speech of employees or students. The task is a daunting one.
Last week, a federal court jury in Tennessee deadlocked on whether Anderson County High School's prohibition on wearing clothing depicting the confederal flag violated a students constitutional rights. Shortly afterwards, the Sixth Circuit issued a decision holding William Blount High School did not violate students' rights when it prohibited the wearing of a confederate flag. Each county argued its policies were geared toward prohibiting disruptions in schools, presented some evidence that racial disruptions had occurred in the past. Both pointed out that their policies meant that the confederate flag itself was not singled out for banishment but that the disruptive clothing policy applied to any clothing that was disruptive, such as Malcolm X shirts to use an example both courts cited. The Sixth Circuit held the school did not have to show that the wearing of confederate flag insignia would actually cause a disruption, it needed to show its decision reasonably forecast that it would cause a substantial disruption.
Compare these decisions to a court decision which struck down Temple University's sexual harassment policy because it infringed the free speech rights of a student who wanted to be able to discuss women in combat and in the military. The university policy prohibited any "expressive, visual or physical conduct” when that conduct “has the purpose or effect of unreasonably interfering with an individual’s work, educational performance, or status; or . . . has the purpose or effect of creating an intimidating, hostile, or offensive environment.”
The problem with this, the court held, was that it let the university impose sanctions for speech based solely on the motive of the speaker and without testing whether the speech is likely to cause a material disruption to the school environment. "Absent any requirement akin to a showing of severity or pervasiveness—that is, a requirement that the conduct objectively and subjectively creates a hostile environment or substantially interferes with an individual’s work—the policy provides no shelter for core protected speech."
Some of the difference in results can be explained by the fact that courts provide grade schools with substantially more flexibility than in a university setting, a policy that permits the more stringent enforcement of discipline among pre-adults. My point is that these cases are a harbinger for public employers, some of whom also face complex decisions about employee expression in the workplace. Public employers have a significant ability to prevent disruption in the workplace so it may be they can have a facially neutral policy that prohibits the wearing of clothing that would likely cause disruption. How an employer would show what would cause a disruption remains to be seen, as courts will require some showing of a disruption.
But public employee speech in the workplace that does not pose a risk of disruption poses a more difficult problem. In that circumstance, a public employer could probably not point to its harassment policies as providing a justification for prohibiting employee speech. Speech alone, one would think, could only rarely rise to the level being severe or pervasive enough to be actionable. But then how does one deal with racial epithets? Any employer, public or private that does take reasonable steps to prevent that kind of speech risks being held liable for racial harassment. Of course, it is the rare case where speech constitutes the only basis for a harassment complaint, and non-expressive conduct motivated by a prohibited characteristic is not protected speech.
I don’t envy the public employer who must sort this out.
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