Speechless at Work

Americans give up the majority of their waking hours to work. What they may not be aware of giving up when they walk through the office door is their right to free speech. A 2001 AFL-CIO study revealed that 80 percent of employees believe it would be illegal for an employer to fire them for expressing political views that s/he disagrees with. Unfortunately, most Americans would be wrong.

Bruce Barry, professor of management and sociology at Vanderbilt University and president of the American Civil Liberties Union of Tennessee, provides the history and current status of our decidedly employer-friendly free-speech laws in his new book Speechless: The Erosion of Free Expression In the American Workplace.

Barry's study of free speech laws at work reveals an anachronistic environment where job security and free speech remain in conflict. As Barry writes, "it's a legal and economic system under which employers don't just buy a person's labor; they also reserve the right to rent an employee's conscience, ideology and social identity."

TAP spoke with Barry to find out what employees need to know, and what employers ought to know, about free speech on the job.

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Eighty percent of Americans think it is illegal to fire an employee for expressing political views with which an employer disagrees. What's the reality?

Generally, your constitutional protections do not apply when the person infringing on your rights is a private party. Only when the state acts do you really have free speech rights. This is something that I think many Americans don't realize. Constitutional law limits your free speech rights to situations where the government acts and that's why public employees, government workers have broader rights. Although, in practice, not much broader than private sector employees.

The other side to understand is employment law. The fundamental rule of employment law in this country is the notion of "employment at-will " which says that employers can fire people for good reasons, bad reasons, or no reasons. There are many exceptions. For instance, the Civil Rights Act of 1964 states that you can't be fired for your race, sex or your nationality. But when you put those two things together -- the constitutional law principle that, for the most part, the Bill of Rights doesn't apply on private and the employment law principle that you can be fired for just about any reason, you start to understand why that gulf exists as a matter of law.

Can you give some examples of employee speech cases?

I'm interested in any situation where someone's expressive activity, on or off the job, having to do with work or not, arouses disapproval and gets them in trouble. One of the most egregious examples is the woman in Alabama three years ago who was fired because her Republican boss didn't like the John Kerry bumper sticker on her car. She refused to remove it and was fired.

There are several examples in recent years where an employee communicates publicly on some community interest issue like a letter to the editor or op-ed. There was a guy at Delta airlines who wrote a letter to the editor about the company's personnel policy and they regarded it as an act of insubordination. There was a guy in Tennessee who wrote a letter to the editor regarding welfare policy and his employer didn't like it.

Another important example is a stockbroker in Houston who was a community activist on a local ballot initiative that had to do with affirmative action. The mayor of the city was opposed to the ballot initiative, and his employer at the brokerage firm was doing a lot of business with the city. The way that he tells the story, the mayor pressured the company to silence him. He claims that he was forced out of his job as a result of his off-work activism.

There's also a lot of people who get in trouble for their online speech -- bloggers who are fired for writing about their company or their industry, some for writing about stuff that has nothing to do with their company or industry, but their employer disapproves.

Why do courts seem to continually defer to employers? Has that historically been the case?

The way to understand that best is to look at the public sector. For government workers, the First Amendment could theoretically apply because the employer is a government actor. But what's happened in the cases involving public employee speech that have reached the Supreme Court over the last 40 years is that they've carved out that employee protection in quite a narrow way.

What the courts have said is that the speech, to be protected, has to be on a matter of "public concern". Over a range of court decisions, justices have wrestled with what that really means. For instance, in a 1983 Supreme Court case, a New Orleans Assistant District Attorney (ADA) was annoyed at workplace policies. So she wrote up a questionnaire to survey her fellow ADAs to gather some data about workplace dissatisfaction. The DA fired her for insubordination. She sued, arguing that the questionnaire was a form of free speech. When it reached the Supreme Court, she lost in a 5-4 decision.

The Supreme Court's majority said that the questionnaire looked more like kvetching about working conditions rather than speech on a matter of public concern. But the four-justice minority said that people have a decided public interest in how the DA's office is functioning. So, even for public sector workers, the courts have tended to say that these rights exist but they're narrow. If an employer says this is harmful to the enterprise, the courts seem often inclined to buy into that.

With more and more government functions being privatized, how do the courts decide whether these enterprises are public or private?

While in many cases it's easy to decide whether somebody is a public or private employer there are trends in the U.S. economy that blur that line. Privatization is one of them. There's a famous case where a woman had her electricity turned off by a utility company with no due process to challenge her status. She went to court claiming that a monopoly utility is surely a state actor or should be treated as one. In the area of speech, this has been an area that the courts have had to wrestle with. If a local government privatizes services, does that impose on them some right to act as a public actor in terms of granting rights to employees? The courts have been sympathetic in some cases, but not always.

For instance, some teachers at a private school were upset about school policies and they joined students in protesting. The school fired them for insubordination. It was a private school, but they argued that, because it served special needs kids and received 90 percent of its funding from the government, the court should treat the school as a government actor. The court said no.

What would you suggest in the way of expanding limited free-speech protections?

I call for the courts to apply more scrutiny to employer claims that expressive activity is harmful to them. The book is also a call for people who employ other people to reframe their mindset about the employment relationship and about the tension between speech and employment. Not just to think of it as employment at-will would have us -- as this two sided coin of employees and employers in market tension. Rather, to think of it as a three-sided enterprise: employers, employees, and civil society at large. It's inescapable that people's work lives are part of not just how they form their professional selves, but how they form their civil selves and their political identities. For a lot of people, work is the only place where they might talk to other adults who may not be very much like them. I think that employers would do everyone a favor and not really seriously harm themselves if they would think more expansively of themselves as collaborators in civil society. We don't just live in an economy; we live in a society.

Why do you think employee speech is such a critical issue right now?

The problem is that the climate for free speech at work leaves employees with their rights as citizens and their job security in tension with one another. The pragmatist advice basically says hold onto your job and shut down the citizenship if it's going to get you in trouble. That kind of tension between citizenship and job security is not just bad because it might be nice to work in a freer workplace, it's bad because it has a harmful effect on the health of a democratic society. There may not be that many people getting fired for their bumper stickers or their blogs on a given day, but when it does happen, it has a chilling effect. We talk about the decline of civic engagement in this country, and I think this is a reason why.

There are many factors that are contributing to the erosion of employee free speech rights. On the employee side, there is dropping and stagnant wages, the experience of more career mobility and less job security, concerns about losing health care from moving from one employer. At the same time, employers are becoming more concerned with protecting their reputation or their brand image. That's a phenomenon in the field of marketing that's really grown over the last couple of decades.

We also see employers, especially corporate employers more involved in trying to influence public policy through the political process. That means that corporations with a preferred point of view, that are investing resources in that point of view, are more alert to departures from it. Throw into that mix this stew of technology. That same technology that gives employees new opportunities to speak widely and quickly, also gives employers easy opportunities to find that speech.

How does the United States compare to other democracies with flourishing economies in terms of free speech at work? In a legal sense, badly. The employment at-will system is uniquely American. Most western-style industrial democracies have built into their system of employment law some sort of just-cause protection and due process rights. There is a convention of the International Labor Organization on discrimination in employment that has, in addition to protection against employment discrimination for race, religion, sex, and national origin, political opinion. 160 countries have ratified that convention. The United States is not one of them.

What can employees do to protect their free speech rights in the work place?

First of all, understand that your free speech rights may well be more limited than you think. The First Amendment is not a grand overarching organizing principle that applies everywhere we live. Constitutional law may be a bit out of touch with the fact that we live our lives under the control of a lot of large, private institutions. The second step is understanding that mileage varies widely from employer to employer. If you are a free speaker at work, try to be an anthropological one. That is, try to understand the real underlying free or not-so-free speech culture of your organization. That's not often going to be found in policy manuals or personnel manuals. And finally, more practically, lobby your state lawmakers for better laws. If you don't live in one of the four states that have protection against lifestyle discrimination in employment, demand that protection. It's long overdue for the 46 states that don't have it.