Posted by Eugene Volokh:
May California Employers Avoid Politically Controversial Employees?
http://volokh.com/archives/archive_2007_09_09-2007_09_15.shtml#1189794796
I've argued before that a university may reasonably -- and without
violating the First Amendment or academic freedom principles -- (1)
prefer to hire a Dean or a Chancellor who isn't too politically
controversial, and (2) insist that these employees (who do a lot of
fundraising and are the public face of the university) avoid
controversial statements during their employment.
But even if I'm right, it's possible that a California state statute
nonetheless prohibits this. In fact, if the statute is read according
to its text, coupled with the way the California Supreme Court has
interpreted it, then all California employers must retain employees
despite their controversial off-the-job statements, even when those
statements are incendiary and alienate the employer's customers,
donors, employees, or others.
Here's the relevant statute, California Labor Code � 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.
Now you might think the statute applies only to politics in the sense
of election campaigns; but the California Supreme Court has held
otherwise, see Gay Law Students Assn. v. Pacific Tel. & Tel. Co., 595
P.2d 592, 610 (Cal. 1979), and read the term as basically applying to
commentary on a wide range of public affairs. You might also think it
applies only to current employees, and not hiring decisions; not so,
the Supreme Court held (id. at 610 n.16). So it seems that an
employer's policy (written or not) that it won't hire or won't retain
employees who make public statements that alienate members of the
public -- or more specific policies applying to, say, racist
statements, religiously bigoted statements, sexist statements, and the
like -- would be illegal.
Employers would thus not only be barred from firing employees because
they are Democrats or Republicans. They would also be barred from
refusing to hire Klansmen or people who have made racist,
anti-Semitic, or anti-Catholic statements, even when the candidate is
being hired for a high-profile public contact or leadership position,
and when many of the employer's customers would be deeply alienated by
the person's statements (past or future).
Now it would make sense to come up with an exception for "when the
employee's political activities are patently in conflict with the
employer's interests," and one federal trial court case so held, see
Smedley v. Capps, Staples, Ward, Hastings & Dodson, 820 F. Supp. 1227,
1230 n.3 (N.D. Cal. 1993). But there's no authority in the statutory
text for any such position, and the case Smedley cited in support,
Mitchell v. International Ass'n of Machinists, 196 Cal. App. 2d 796
(1961), actually doesn't support that position.
State statutes in some other states do have exceptions for when the
speech restriction on employees "[r]elates to a bona fide occupational
requirement" (Colorado) or when the employee's speech "creates a
material conflict of interest related to the employer�s trade secrets,
proprietary information or other proprietary or business interest"
(New York). But California doesn't; and it's not clear that California
courts would be willing to infer such an exception -- compare Davis v.
Louisiana Computing Corp., 394 So.2d 678, 679 (La. App. 1981), which
specifically refused to infer such an exception into a similar
Louisiana statute.
It's possible that some employers' First Amendment rights might trump
this statute in some situations, for instance when a newspaper demands
that its reporters not engage in politics. Compare Nelson v. McClatchy
Newspapers, Inc., 936 P.2d 1123, 1127 (Wash. 1997) (so holding, by a
5-4 vote) with Ali v. L.A. Focus Publication, 112 Cal. App. 4th 1477
(2003) (rejecting the claim that a newspaper "has the unfettered right
to terminate an employee for any [outside-the-newspaper] speech or
conduct that is inconsistent with the newspaper's editorial
policies"). But many employers wouldn't have such claims; and in
particular, I'm pretty sure (notwithstanding occasional references to
the supposed First Amendment rights of public universities) that the
University of California, a branch of the California government, would
have any First Amendment rights to resist the judgment of its ultimate
bosses in the California legislature. (Article 9, section 9 of the
California Constitution does give the University some independence
from state statutes, but not from generally applicable state laws such
as this one.)
In any case, I'm pretty sure that Chemerinsky won't sue UC on this
theory or any other, so the answer might never be squarely determined.
But I thought I'd raise this issue, chiefly because it illustrates an
interesting and difficult problem faced by California employers who
care about public reaction to their leaders', spokespeople's, and
fundraisers' speech.
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