Two Practical Arguments for Not Limiting Private-Employer-Imposed Speech Restrictions

As I mentioned last week, ten years ago I wrote a descriptive and analytical law review article called Private Employees' Speech and Political Activity: Statutory Protection Against Employer Retaliation, which aimed to catalog these often-little-known statutes. This year, I'm returning to the subject, trying to analyze the strongest arguments for and against such statutes. The article (Should the Law Limit Private-Employer-Imposed Speech Restrictions?) will be published later this year in a Journal of Free Speech Law symposium issue, together with other articles that stemmed from an Arizona State symposium on Non-Governmental Restrictions on Free Speech; and this week and next I'd like to serialize it here.

Last Tuesday and Wednesday, I blogged the Introduction and the beginning of the argument in favor of such statutes, followed by an explanation of why such statutes usually don't violate employers' constitutional rights. This week, I discuss some other arguments against such statutes (and you can see the whole article right now, if you'd like, by looking at the PDF). Yesterday, I argued that the statutes should be rejected in order to protect employers' rights, even if not constitutionally protected rights, not to associate; today, I turn to more pragmatic concerns (though ones that can still be said to involve employers' rights).

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Avoiding Unduly Deterring Non-Speech-Based Employment Actions

Employers can also worry that protecting employee speech would risk creating spurious lawsuits, as employees who were fired for (say) incompetence start to routinely sue, claiming that this was just a pretext and that the real reason for the firing was their controversial speech. Indeed, one can imagine an employee who thinks that he might get fired for a legitimate reason, and who therefore deliberately starts saying controversial things so that management becomes reluctant to fire him for fear that he'll sue for political discrimination.

This argument, though, has likewise been made as to many forms of employment discrimination law, and especially the law of retaliation: Punishing retaliatory firing might well encourage some people to bring spurious discrimination complaints just so the employer becomes worried that firing the employee will be mistaken for retaliation.[1] That, however, has not generally been seen as an adequate reason to limit such antidiscrimination rules.

Note also that, though private employee speech protection statutes have been present in some states for over a century,[2] I've seen no evidence that they have proved to be serious burdens for employers. To be sure, perhaps they're just underenforced for various reasons: maybe they aren't well-known even to employment lawyers, and they also often don't include attorney fees (unlike, say, Title VII). Maybe if they are more broadly enacted, or enacted at the federal level, and more broadly publicized, they will be more often used. Nonetheless, there seems to be little concrete reason to think that they would substantially deter employers from properly discharging or disciplining incompetent employees, especially on top of the existing burdens that employment law already creates.

Avoiding Employees' Being Net Losses for Employers

Finally, employers can reasonably object that some employees' political speech makes the employees more trouble than they are worth. Employees are hired to advance the employer's business, not to undermine it. When an employee's speech or political activity sufficiently alienates coworkers, customers, or regulators, an employer may reasonably argue: "I'm paying the employee $50,000 per year expecting that I'll get $70,000 of value in return; but now that the employee is causing an extra $30,000 in expenses, lost revenue, and reduced morale, I shouldn't have to keep this net loss of a worker on the payroll."

This is a serious concern, but it too mirrors concerns that can be raised with regard to other antidiscrimination laws, but that are rejected. Especially shortly after Title VII was enacted, many a business might have plausibly argued that hiring black employees might alienate white customers or coworkers, or that customers wouldn't buy as much from female salespeople or coworkers wouldn't work as well for female managers.[3] I suspect there has been a good deal of undetected discrimination stemming precisely from such concerns.

But when these arguments have come to court, courts have rejected them. For instance, it's well-settled that customer or coworker preference for employees of a particular sex—or hostility to employees of a particular sex—doesn't make sex into a bona fide occupational qualification.[4] Employers need to accept some such losses as part of the cost of doing business, and of the social cost of promoting the policies that the antidiscrimination law serves.[5]

Indeed, in at least some situations the existence of employee speech protection laws can help ease some of the public backlash against the employer. "Don't blame us that we haven't fired Joe Schmoe for his speech," the employer might say; "the law tells us we can't." Perhaps some customers might still stop dealing with the company because Schmoe remains employed there. But others might well reconcile themselves to the situation (especially if they're not among the likely small group who have to deal with Schmoe personally), and conclude that, though Schmoe may be a bad person, the employer isn't bad for keeping Schmoe on the payroll. And even customers or coworkers who do have to keep dealing with Schmoe might conclude that, the law being what it is, they might as well accept the legal reality.

[1] See, e.g., Walter K. Olson, The Excuse Factory 220–21 (1997).

[2] See Volokh, supra note *.

[3] See, e.g., Michael Blake, The Discriminating Shopper, 43 San Diego L. Rev. 1017, 1020–21 (2006); Alan Wertheimer, Jobs, Qualifications, and Preferences, 94 Ethics 99, 100 (1983).

[4] See, e.g., Fernandez v. Wynn Oil Co., 653 F.2d 1273, 1276-77 (9th Cir. 1981) (preference of clients in South America for dealing with males cannot make sex into a bona fide qualification); Diaz v. Pan Am. World Airways, Inc., 442 F.2d 385, 389 (5th Cir. 1971) (preference of airplane passengers for female flight attendants cannot make sex into a bona fide qualification); Ray v. University of Ark., 868 F. Supp. 1104, 1126-27 (E.D. Ark. 1994) (even if race could ever be a bona fide qualification, students' preference for police officers of their own race is insufficient); Levendos v. Stern Ent., Inc., 723 F. Supp. 1104, 1107 (W.D. Pa. 1989) (perception by employer that male waiters "present a better image" for the restaurant cannot make sex into a bona fide qualification), rev'd on other grounds, 909 F.2d 747 (3d Cir. 1990); Bollenbach v. Bd. of Educ. of Monroe-Woodbury Cent. Sch. Dist., 659 F. Supp. 1450, 1472 (S.D.N.Y. 1987) (preference of religious parents for male school bus drivers can't make sex into a bona fide qualification); Bohemian Club, v. Fair Emp. & Hous. Comm'n, 187 Cal. App. 3d 1, 21 (19860 (client preference for male service personnel, based upon the supposed "inhibiting effect women employees might have upon men" in a private club, cannot make sex into a bona fide qualification); 29 C.F.R. § 1604.2(a)(1)(iii) (2022) (customer/coworker preference can't make sex into a bona fide qualification); Cal. Code Regs. tit. 2, § 11031(a)(3) (2022).

[5] See, e.g., Christine Jolls, Antidiscrimination and Accommodation, 115 Harv. L. Rev. 642, 686 (2001).